A.

CORPORATION

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 169752

September 25, 2007

PHILIPPINE SOCIETY FOR THE PREVENTION OF CRUELTY TO

ANIMALS, Petitioners,
vs.
COMMISSION ON AUDIT, DIR. RODULFO J. ARIESGA (in his official
capacity as Director of the Commission on Audit), MS. MERLE M.
VALENTIN and MS. SUSAN GUARDIAN (in their official capacities as
Team Leader and Team Member, respectively, of the audit Team of
the Commission on Audit),Respondents.
DECISION
AUSTRIA-MARTINEZ, J.:
Before the Court is a special civil action for Certiorari and Prohibition
under Rule 65 of the Rules of Court, in relation to Section 2 of Rule 64,
filed by the petitioner assailing Office Order No. 2005-0211 dated
September 14, 2005 issued by the respondents which constituted the
audit team, as well as its September 23, 2005 Letter2informing the
petitioner that respondents audit team shall conduct an audit survey on
the petitioner for a detailed audit of its accounts, operations, and financial
transactions. No temporary restraining order was issued.
The petitioner was incorporated as a juridical entity over one hundred
years ago by virtue of Act No. 1285, enacted on January 19, 1905, by the
Philippine Commission. The petitioner, at the time it was created, was
composed of animal aficionados and animal propagandists. The objects
of the petitioner, as stated in Section 2 of its charter, shall be to enforce
laws relating to cruelty inflicted upon animals or the protection of animals
in the Philippine Islands, and generally, to do and perform all things which
may tend in any way to alleviate the suffering of animals and promote
their welfare.3
At the time of the enactment of Act No. 1285, the original Corporation
Law, Act No. 1459, was not yet in existence. Act No. 1285 antedated
both the Corporation Law and the constitution of the Securities and
Exchange Commission. Important to note is that the nature of the
petitioner as a corporate entity is distinguished from thesociedad
anonimas under the Spanish Code of Commerce.

SEC. 5. One-half of all the fines imposed and collected through the
efforts of said society, its members or its agents, for violations of the laws
enacted for the prevention of cruelty to animals and for their protection,
shall belong to said society and shall be used to promote its objects.
(emphasis supplied)
Subsequently, however, the power to make arrests as well as the
privilege to retain a portion of the fines collected for violation of animalrelated laws were recalled by virtue of Commonwealth Act (C.A.) No.
148,4 which reads, in its entirety, thus:
Be it enacted by the National Assembly of the Philippines:
Section 1. Section four of Act Numbered Twelve hundred and eighty-five
as amended by Act Numbered Thirty five hundred and forty-eight, is
hereby further amended so as to read as follows:
Sec. 4. The said society is authorized to appoint not to exceed ten agents
in the City of Manila, and not to exceed one in each municipality of the
Philippines who shall have the authority to denounce to regular peace
officers any violation of the laws enacted for the prevention of cruelty to
animals and the protection of animals and to cooperate with said peace
officers in the prosecution of transgressors of such laws.
Sec. 2. The full amount of the fines collected for violation of the laws
against cruelty to animals and for the protection of animals, shall accrue
to the general fund of the Municipality where the offense was committed.
Sec. 3. This Act shall take effect upon its approval.
Approved, November 8, 1936. (Emphasis supplied)
Immediately thereafter, then President Manuel L. Quezon issued
Executive Order (E.O.) No. 63 dated November 12, 1936, portions of
which provide:
Whereas, during the first regular session of the National Assembly,
Commonwealth Act Numbered One Hundred Forty Eight was enacted
depriving the agents of the Society for the Prevention of Cruelty to
Animals of their power to arrest persons who have violated the laws
prohibiting cruelty to animals thereby correcting a serious defect in one of
the laws existing in our statute books.
xxxx
Whereas, the cruel treatment of animals is an offense against the State,
penalized under our statutes, which the Government is duty bound to
enforce;

For the purpose of enhancing its powers in promoting animal welfare and
enforcing laws for the protection of animals, the petitioner was initially
imbued under its charter with the power to apprehend violators of animal
welfare laws. In addition, the petitioner was to share one-half (1/2) of the
fines imposed and collected through its efforts for violations of the laws
related thereto. As originally worded, Sections 4 and 5 of Act No. 1285
provide:

Now, therefore, I, Manuel L. Quezon, President of the Philippines,

pursuant to the authority conferred upon me by the Constitution, hereby
decree, order, and direct the Commissioner of Public Safety, the Provost
Marshal General as head of the Constabulary Division of the Philippine
Army, every Mayor of a chartered city, and every municipal president to
detail and organize special members of the police force, local, national,
and the Constabulary to watch, capture, and prosecute offenders against
the laws enacted to prevent cruelty to animals. (Emphasis supplied)

SEC. 4. The said society is authorized to appoint not to exceed five

agents in the City of Manila, and not to exceed two in each of the
provinces of the Philippine Islands who shall have all the power and
authority of a police officer to make arrests for violation of the
laws enacted for the prevention of cruelty to animals and the protection of
animals, and to serve any process in connection with the execution of
such laws; and in addition thereto, all the police force of the Philippine
Islands, wherever organized, shall, as occasion requires, assist said
society, its members or agents, in the enforcement of all such laws.

On December 1, 2003, an audit team from respondent Commission on

Audit (COA) visited the office of the petitioner to conduct an audit survey
pursuant to COA Office Order No. 2003-051 dated November 18,
20035addressed to the petitioner. The petitioner demurred on the ground
that it was a private entity not under the jurisdiction of COA, citing Section
2(1) of Article IX of the Constitution which specifies the general
jurisdiction of the COA, viz:
Section 1. General Jurisdiction. The Commission on Audit shall have the
power, authority, and duty to examine, audit, and settle all accounts

pertaining to the revenue and receipts of, and expenditures or uses of

funds and property, owned or held in trust by, or pertaining to the
Government, or any of its subdivisions, agencies, or instrumentalities,
including government-owned and controlled corporations with original
charters, and on a post-audit basis: (a) constitutional bodies,
commissions and officers that have been granted fiscal autonomy under
the Constitution; (b) autonomous state colleges and universities; (c) other
government-owned or controlled corporations and their subsidiaries; and
(d) such non-governmental entities receiving subsidy or equity, directly or
indirectly, from or through the government, which are required by law or
the granting institution to submit to such audit as a condition of subsidy or
equity. However, where the internal control system of the audited
agencies is inadequate, the Commission may adopt such measures,
including temporary or special pre-audit, as are necessary and
appropriate to correct the deficiencies. It shall keep the general accounts
of the Government, and for such period as may be provided by law,
preserve the vouchers and other supporting papers pertaining thereto.
(Emphasis supplied)
Petitioner explained thus:
a. Although the petitioner was created by special legislation, this
necessarily came about because in January 1905 there was as yet
neither a Corporation Law or any other general law under which it may be
organized and incorporated, nor a Securities and Exchange Commission
which would have passed upon its organization and incorporation.
b. That Executive Order No. 63, issued during the Commonwealth period,
effectively deprived the petitioner of its power to make arrests, and that
the petitioner lost its operational funding, underscore the fact that it
exercises no governmental function. In fine, the government itself, by its
overt acts, confirmed petitioners status as a private juridical entity.
The COA General Counsel issued a Memorandum6 dated May 6, 2004,
asserting that the petitioner was subject to its audit authority. In a letter
dated May 17, 2004,7 respondent COA informed the petitioner of the
result of the evaluation, furnishing it with a copy of said Memorandum
dated May 6, 2004 of the General Counsel.
Petitioner thereafter filed with the respondent COA a Request for Reevaluation dated May 19, 2004,8 insisting that it was a private domestic
corporation.
Acting on the said request, the General Counsel of respondent COA, in a
Memorandum dated July 13, 2004,9affirmed her earlier opinion that the
petitioner was a government entity that was subject to the audit
jurisdiction of respondent COA. In a letter dated September 14, 2004, the
respondent COA informed the petitioner of the result of the re-evaluation,
maintaining its position that the petitioner was subject to its audit
jurisdiction, and requested an initial conference with the respondents.
In a Memorandum dated September 16, 2004, Director Delfin Aguilar
reported to COA Assistant Commissioner Juanito Espino, Corporate
Government Sector, that the audit survey was not conducted due to the
refusal of the petitioner because the latter maintained that it was a private
corporation.
Petitioner received on September 27, 2005 the subject COA Office Order
2005-021 dated September 14, 2005 and the COA Letter dated
September 23, 2005.
Hence, herein Petition on the following grounds:
A.
RESPONDENT COMMISSION ON AUDIT COMMITTED GRAVE ABUSE
OF DISCRETION AMOUNTING TO LACK OR EXCESS OF

JURISDICTION WHEN IT RULED THAT PETITIONER IS SUBJECT TO

ITS AUDIT AUTHORITY.
B.
PETITIONER IS ENTITLED TO THE RELIEF SOUGHT, THERE BEING
NO APPEAL, NOR ANY PLAIN, SPEEDY AND ADEQUATE REMEDY IN
THE ORDINARY COURSE OF LAW AVAILABLE TO IT.10
The essential question before this Court is whether the petitioner qualifies
as a government agency that may be subject to audit by respondent
COA.
Petitioner argues: first, even though it was created by special legislation
in 1905 as there was no general law then existing under which it may be
organized or incorporated, it exercises no governmental functions
because these have been revoked by C.A. No. 148 and E.O. No.
63; second, nowhere in its charter is it indicated that it is a public
corporation, unlike, for instance, C.A. No. 111 which created the Boy
Scouts of the Philippines, defined its powers and purposes, and
specifically stated that it was "An Act to Create a Public Corporation" in
which, even as amended by Presidential Decree No. 460, the law still
adverted to the Boy Scouts of the Philippines as a "public corporation," all
of which are not obtaining in the charter of the petitioner; third, if it were a
government body, there would have been no need for the State to grant it
tax exemptions under Republic Act No. 1178, and the fact that it was so
exempted strengthens its position that it is a private institution; fourth, the
employees of the petitioner are registered and covered by the Social
Security System at the latters initiative and not through the Government
Service Insurance System, which should have been the case had the
employees been considered government employees; fifth, the petitioner
does not receive any form of financial assistance from the government,
since C.A. No. 148, amending Section 5 of Act No. 1285, states that the
"full amount of the fines, collected for violation of the laws against cruelty
to animals and for the protection of animals, shall accrue to the general
fund of the Municipality where the offense was committed"; sixth, C.A.
No. 148 effectively deprived the petitioner of its powers to make arrests
and serve processes as these functions were placed in the hands of the
police force; seventh, no government appointee or representative sits on
the board of trustees of the petitioner; eighth, a reading of the provisions
of its charter (Act No. 1285) fails to show that any act or decision of the
petitioner is subject to the approval of or control by any government
agency, except to the extent that it is governed by the law on private
corporations in general; and finally, ninth, the Committee on Animal
Welfare, under the Animal Welfare Act of 1998, includes members from
both the private and the public sectors.
The respondents contend that since the petitioner is a "body politic"
created by virtue of a special legislation and endowed with a
governmental purpose, then, indubitably, the COA may audit the financial
activities of the latter. Respondents in effect divide their contentions into
six strains: first, the test to determine whether an entity is a government
corporation lies in the manner of its creation, and, since the petitioner
was created by virtue of a special charter, it is thus a government
corporation subject to respondents auditing power; second, the petitioner
exercises "sovereign powers," that is, it is tasked to enforce the laws for
the protection and welfare of animals which "ultimately redound to the
public good and welfare," and, therefore, it is deemed to be a government
"instrumentality" as defined under the Administrative Code of 1987, the
purpose of which is connected with the administration of government, as
purportedly affirmed by American jurisprudence; third, by virtue of Section
23,11Title II, Book III of the same Code, the Office of the President
exercises supervision or control over the petitioner;fourth, under the
same Code, the requirement under its special charter for the petitioner to
render a report to the Civil Governor, whose functions have been
inherited by the Office of the President, clearly reflects the nature of the
petitioner as a government instrumentality; fifth, despite the passage of
the Corporation Code, the law creating the petitioner had not been

abolished, nor had it been re-incorporated under any general corporation

law; and finally, sixth, Republic Act No. 8485, otherwise known as the
"Animal Welfare Act of 1998," designates the petitioner as a member of
its Committee on Animal Welfare which is attached to the Department of
Agriculture.
In view of the phrase "One-half of all the fines imposed and collected
through the efforts of said society," the Court, in a Resolution dated
January 30, 2007, required the Office of the Solicitor General (OSG) and
the parties to comment on: a) petitioner's authority to impose fines and
the validity of the provisions of Act No. 1285 and Commonwealth Act No.
148 considering that there are no standard measures provided for in the
aforecited laws as to the manner of implementation, the specific
violations of the law, the person/s authorized to impose fine and in what
amount; and, b) the effect of the 1935 and 1987 Constitutions on whether
petitioner continues to exist or should organize as a private corporation
under the Corporation Code, B.P. Blg. 68 as amended.
Petitioner and the OSG filed their respective Comments. Respondents
filed a Manifestation stating that since they were being represented by
the OSG which filed its Comment, they opted to dispense with the filing of
a separate one and adopt for the purpose that of the OSG.
The petitioner avers that it does not have the authority to impose fines for
violation of animal welfare laws; it only enjoyed the privilege of sharing in
the fines imposed and collected from its efforts in the enforcement of
animal welfare laws; such privilege, however, was subsequently
abolished by C.A. No. 148; that it continues to exist as a private
corporation since it was created by the Philippine Commission before the
effectivity of the Corporation law, Act No. 1459; and the 1935 and 1987
Constitutions.
The OSG submits that Act No. 1285 and its amendatory laws did not give
petitioner the authority to impose fines for violation of laws12 relating to
the prevention of cruelty to animals and the protection of animals; that
even prior to the amendment of Act No. 1285, petitioner was only entitled
to share in the fines imposed; C.A. No. 148 abolished that privilege to
share in the fines collected; that petitioner is a public corporation and has
continued to exist since Act No. 1285; petitioner was not repealed by the
1935 and 1987 Constitutions which contain transitory provisions
maintaining all laws issued not inconsistent therewith until amended,
modified or repealed.
The petition is impressed with merit.
The arguments of the parties, interlaced as they are, can be disposed of
in five points.
First, the Court agrees with the petitioner that the "charter test" cannot be
applied.
Essentially, the "charter test" as it stands today provides:
[T]he test to determine whether a corporation is government owned or
controlled, or private in nature is simple. Is it created by its own charter
for the exercise of a public function, or by incorporation under the general
corporation law? Those with special charters are government
corporations subject to its provisions, and its employees are under the
jurisdiction of the Civil Service Commission, and are compulsory
members of the Government Service Insurance System. xxx (Emphasis
supplied)13
The petitioner is correct in stating that the charter test is predicated, at
best, on the legal regime established by the 1935 Constitution, Section 7,
Article XIII, which states:
Sec. 7. The National Assembly shall not, except by general law, provide
for the formation, organization, or regulation of private corporations,

unless such corporations are owned or controlled by the Government or

any subdivision or instrumentality thereof.14
The foregoing proscription has been carried over to the 1973 and the
1987 Constitutions. Section 16 of Article XII of the present Constitution
provides:
Sec. 16. The Congress shall not, except by general law, provide for the
formation, organization, or regulation of private corporations.
Government-owned or controlled corporations may be created or
established by special charters in the interest of the common good and
subject to the test of economic viability.
Section 16 is essentially a re-enactment of Section 7 of Article XVI of the
1935 Constitution and Section 4 of Article XIV of the 1973 Constitution.
During the formulation of the 1935 Constitution, the Committee on
Franchises recommended the foregoing proscription to prevent the
pressure of special interests upon the lawmaking body in the creation of
corporations or in the regulation of the same. To permit the lawmaking
body by special law to provide for the organization, formation, or
regulation of private corporations would be in effect to offer to it the
temptation in many cases to favor certain groups, to the prejudice of
others or to the prejudice of the interests of the country.15
And since the underpinnings of the charter test had been introduced by
the 1935 Constitution and not earlier, it follows that the test cannot apply
to the petitioner, which was incorporated by virtue of Act No. 1285,
enacted on January 19, 1905. Settled is the rule that laws in general have
no retroactive effect, unless the contrary is provided.16 All statutes are to
be construed as having only a prospective operation, unless the purpose
and intention of the legislature to give them a retrospective effect is
expressly declared or is necessarily implied from the language used. In
case of doubt, the doubt must be resolved against the retrospective
effect.17
There are a few exceptions. Statutes can be given retroactive effect in
the following cases: (1) when the law itself so expressly provides; (2) in
case of remedial statutes; (3) in case of curative statutes; (4) in case of
laws interpreting others; and (5) in case of laws creating new
rights.18 None of the exceptions is present in the instant case.
The general principle of prospectivity of the law likewise applies to Act
No. 1459, otherwise known as the Corporation Law, which had been
enacted by virtue of the plenary powers of the Philippine Commission on
March 1, 1906, a little over a year after January 19, 1905, the time the
petitioner emerged as a juridical entity. Even the Corporation Law
respects the rights and powers of juridical entities organized beforehand,
viz:
SEC. 75. Any corporation or sociedad anonima formed, organized, and
existing under the laws of the Philippine Islands and lawfully transacting
business in the Philippine Islands on the date of the passage of this Act,
shall be subject to the provisions hereof so far as such provisions may be
applicable and shall be entitled at its optioneither to continue business as
such corporation or to reform and organize under and by virtue of the
provisions of this Act, transferring all corporate interests to the new
corporation which, if a stock corporation, is authorized to issue its shares
of stock at par to the stockholders or members of the old corporation
according to their interests. (Emphasis supplied).
As pointed out by the OSG, both the 1935 and 1987 Constitutions contain
transitory provisions maintaining all laws issued not inconsistent therewith
until amended, modified or repealed.19
In a legal regime where the charter test doctrine cannot be applied, the
mere fact that a corporation has been created by virtue of a special law
does not necessarily qualify it as a public corporation.

What then is the nature of the petitioner as a corporate entity? What legal
regime governs its rights, powers, and duties?
As stated, at the time the petitioner was formed, the applicable law was
the Philippine Bill of 1902, and, emphatically, as also stated above, no
proscription similar to the charter test can be found therein.
The textual foundation of the charter test, which placed a limitation on the
power of the legislature, first appeared in the 1935 Constitution. However,
the petitioner was incorporated in 1905 by virtue of Act No. 1258, a law
antedating the Corporation Law (Act No. 1459) by a year, and the 1935
Constitution, by thirty years. There being neither a general law on the
formation and organization of private corporations nor a restriction on the
legislature to create private corporations by direct legislation, the
Philippine Commission at that moment in history was well within its
powers in 1905 to constitute the petitioner as a private juridical
entity.1wphi1
Time and again the Court must caution even the most brilliant scholars of
the law and all constitutional historians on the danger of imposing legal
concepts of a later date on facts of an earlier date.20
The amendments introduced by C.A. No. 148 made it clear that the
petitioner was a private corporation and not an agency of the
government. This was evident in Executive Order No. 63, issued by then
President of the Philippines Manuel L. Quezon, declaring that the
revocation of the powers of the petitioner to appoint agents with powers
of arrest "corrected a serious defect" in one of the laws existing in the
statute books.
As a curative statute, and based on the doctrines so far discussed, C.A.
No. 148 has to be given retroactive effect, thereby freeing all doubt as to
which class of corporations the petitioner belongs, that is, it is a quasipublic corporation, a kind of private domestic corporation, which the Court
will further elaborate on under the fourth point.
Second, a reading of petitioners charter shows that it is not subject to
control or supervision by any agency of the State, unlike governmentowned and -controlled corporations. No government representative sits
on the board of trustees of the petitioner. Like all private corporations, the
successors of its members are determined voluntarily and solely by the
petitioner in accordance with its by-laws, and may exercise those powers
generally accorded to private corporations, such as the powers to hold
property, to sue and be sued, to use a common seal, and so forth. It may
adopt by-laws for its internal operations: the petitioner shall be managed
or operated by its officers "in accordance with its by-laws in force." The
pertinent provisions of the charter provide:
Section 1. Anna L. Ide, Kate S. Wright, John L. Chamberlain, William F.
Tucker, Mary S. Fergusson, Amasa S. Crossfield, Spencer Cosby, Sealy
B. Rossiter, Richard P. Strong, Jose Robles Lahesa, Josefina R. de
Luzuriaga, and such other persons as may be associated with them in
conformity with this act, and their successors, are hereby constituted and
created a body politic and corporate at law, under the name and style of
"The Philippines Society for the Prevention of Cruelty to Animals."

xxxx
Sec. 3. The said society shall be operated under the direction of its
officers, in accordance with its by-laws in force, and this charter.
xxxx
Sec. 6. The principal office of the society shall be kept in the city of
Manila, and the society shall have full power to locate and establish
branch offices of the society wherever it may deem advisable in the
Philippine Islands, such branch offices to be under the supervision and
control of the principal office.
Third. The employees of the petitioner are registered and covered by the
Social Security System at the latters initiative, and not through the
Government Service Insurance System, which should be the case if the
employees are considered government employees. This is another
indication of petitioners nature as a private entity. Section 1 of Republic
Act No. 1161, as amended by Republic Act No. 8282, otherwise known
as the Social Security Act of 1997, defines the employer:
Employer Any person, natural or juridical, domestic or foreign, who
carries on in the Philippines any trade, business, industry, undertaking or
activity of any kind and uses the services of another person who is under
his orders as regards the employment, except the Government and any
of its political subdivisions, branches or instrumentalities, including
corporations owned or controlled by the Government: Provided, That a
self-employed person shall be both employee and employer at the same
time. (Emphasis supplied)
Fourth. The respondents contend that the petitioner is a "body politic"
because its primary purpose is to secure the protection and welfare of
animals which, in turn, redounds to the public good.
This argument, is, at best, specious. The fact that a certain juridical entity
is impressed with public interest does not, by that circumstance alone,
make the entity a public corporation, inasmuch as a corporation may be
private although its charter contains provisions of a public character,
incorporated solely for the public good. This class of corporations may be
considered quasi-public corporations, which are private corporations that
render public service, supply public wants,21 or pursue other
eleemosynary objectives. While purposely organized for the gain or
benefit of its members, they are required by law to discharge functions for
the public benefit. Examples of these corporations are utility,22 railroad,
warehouse, telegraph, telephone, water supply corporations and
transportation companies.23 It must be stressed that a quasi-public
corporation is a species of private corporations, but the qualifying factor is
the type of service the former renders to the public: if it performs a public
service, then it becomes a quasi-public corporation.241wphi1

As incorporated by this Act, said society shall have the power to add to its
organization such and as many members as it desires, to provide for and
choose such officers as it may deem advisable, and in such manner as it
may wish, and to remove members as it shall provide.

Authorities are of the view that the purpose alone of the corporation
cannot be taken as a safe guide, for the fact is that almost all
corporations are nowadays created to promote the interest, good, or
convenience of the public. A bank, for example, is a private corporation;
yet, it is created for a public benefit. Private schools and universities are
likewise private corporations; and yet, they are rendering public service.
Private hospitals and wards are charged with heavy social
responsibilities. More so with all common carriers. On the other hand,
there may exist a public corporation even if it is endowed with gifts or
donations from private individuals.

It shall have the right to sue and be sued, to use a common seal, to
receive legacies and donations, to conduct social enterprises for the
purpose of obtaining funds, to levy dues upon its members and provide
for their collection to hold real and personal estate such as may be
necessary for the accomplishment of the purposes of the society, and to
adopt such by-laws for its government as may not be inconsistent with
law or this charter.

The true criterion, therefore, to determine whether a corporation is public

or private is found in the totality of the relation of the corporation to the
State. If the corporation is created by the State as the latters own agency
or instrumentality to help it in carrying out its governmental functions,
then that corporation is considered public; otherwise, it is private.
Applying the above test, provinces, chartered cities, and barangays can
best exemplify public corporations. They are created by the State as its

own device and agency for the accomplishment of parts of its own public
works.25
It is clear that the amendments introduced by C.A. No. 148 revoked the
powers of the petitioner to arrest offenders of animal welfare laws and the
power to serve processes in connection therewith.
Fifth. The respondents argue that since the charter of the petitioner
requires the latter to render periodic reports to the Civil Governor, whose
functions have been inherited by the President, the petitioner is,
therefore, a government instrumentality.

EMMANUEL PIOL, for and in his own behalf, petitioners,

vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES
PEACE PANEL ON ANCESTRAL DOMAIN (GRP), represented by
SEC. RODOLFO GARCIA, ATTY. LEAH ARMAMENTO, ATTY.
SEDFREY CANDELARIA, MARK RYAN SULLIVAN and/or GEN.
HERMOGENES ESPERON, JR., the latter in his capacity as the
present and duly-appointed Presidential Adviser on the Peace
Process (OPAPP) or the so-called Office of the Presidential Adviser
on the Peace Process, respondents.
x--------------------------------------------x

This contention is inconclusive. By virtue of the fiction that all

corporations owe their very existence and powers to the State, the
reportorial requirement is applicable to all corporations of whatever
nature, whether they are public, quasi-public, or private corporationsas
creatures of the State, there is a reserved right in the legislature to
investigate the activities of a corporation to determine whether it acted
within its powers. In other words, the reportorial requirement is the
principal means by which the State may see to it that its creature acted
according to the powers and functions conferred upon it. These principles
were extensively discussed in Bataan Shipyard & Engineering Co., Inc. v.
Presidential Commission on Good Government.26 Here, the Court, in
holding that the subject corporation could not invoke the right against
self-incrimination whenever the State demanded the production of its
corporate books and papers, extensively discussed the purpose of
reportorial requirements, viz:

G.R. No. 183752

October 14, 2008

CITY GOVERNMENT OF ZAMBOANGA, as represented by HON.

CELSO L. LOBREGAT, City Mayor of Zamboanga, and in his personal
capacity as resident of the City of Zamboanga, Rep. MA. ISABELLE G.
CLIMACO, District 1, and Rep. ERICO BASILIO A. FABIAN, District 2,
City of Zamboanga, petitioners,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES
PEACE NEGOTIATING PANEL (GRP), as represented by RODOLFO C.
GARCIA, LEAH ARMAMENTO, SEDFREY CANDELARIA, MARK RYAN
SULLIVAN and HERMOGENES ESPERON, in his capacity as the
Presidential Adviser on Peace Process,respondents.
x--------------------------------------------x

x x x The corporation is a creature of the state. It is presumed to be

incorporated for the benefit of the public. It received certain special
privileges and franchises, and holds them subject to the laws of the state
and the limitations of its charter. Its powers are limited by law. It can
make no contract not authorized by its charter. Its rights to act as a
corporation are only preserved to it so long as it obeys the laws of its
creation. There is a reserve[d] right in the legislature to investigate its
contracts and find out whether it has exceeded its powers. It would be a
strange anomaly to hold that a state, having chartered a corporation to
make use of certain franchises, could not, in the exercise of sovereignty,
inquire how these franchises had been employed, and whether they had
been abused, and demand the production of the corporate books and
papers for that purpose. The defense amounts to this, that an officer of
the corporation which is charged with a criminal violation of the statute
may plead the criminality of such corporation as a refusal to produce its
books. To state this proposition is to answer it. While an individual may
lawfully refuse to answer incriminating questions unless protected by an
immunity statute, it does not follow that a corporation vested with special
privileges and franchises may refuse to show its hand when charged with
an abuse of such privileges. (Wilson v. United States, 55 Law Ed., 771,
780.)27
WHEREFORE, the petition is GRANTED. Petitioner is DECLARED a
private domestic corporation subject to the jurisdiction of the Securities
and Exchange Commission. The respondents are ENJOINED from
investigating, examining and auditing the petitioner's fiscal and financial
affairs.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 183591

October 14, 2008

THE PROVINCE OF NORTH COTABATO, duly represented by

GOVERNOR JESUS SACDALAN and/or VICE-GOVERNOR

G.R. No. 183893

October 14, 2008

THE CITY OF ILIGAN, duly represented by CITY MAYOR LAWRENCE

LLUCH CRUZ, petitioner,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES
PEACE PANEL ON ANCESTRAL DOMAIN (GRP), represented by SEC.
RODOLFO GARCIA, ATTY. LEAH ARMAMENTO, ATTY. SEDFREY
CANDELARIA, MARK RYAN SULLIVAN; GEN. HERMOGENES
ESPERON, JR., in his capacity as the present and duly appointed
Presidential Adviser on the Peace Process; and/or SEC. EDUARDO
ERMITA, in his capacity as Executive Secretary. respondents.
x--------------------------------------------x
G.R. No. 183951

October 14, 2008

THE PROVINCIAL GOVERNMENT OF ZAMBOANGA DEL NORTE, as

represented by HON. ROLANDO E. YEBES, in his capacity as Provincial
Governor, HON. FRANCIS H. OLVIS, in his capacity as Vice-Governor
and Presiding Officer of the Sangguniang Panlalawigan, HON. CECILIA
JALOSJOS CARREON, Congresswoman, 1st Congressional District,
HON. CESAR G. JALOSJOS, Congressman, 3rdCongressional District,
and Members of the Sangguniang Panlalawigan of the Province of
Zamboanga del Norte, namely, HON. SETH FREDERICK P. JALOSJOS,
HON. FERNANDO R. CABIGON, JR., HON. ULDARICO M. MEJORADA
II, HON. EDIONAR M. ZAMORAS, HON. EDGAR J. BAGUIO, HON.
CEDRIC L. ADRIATICO, HON. FELIXBERTO C. BOLANDO, HON.
JOSEPH BRENDO C. AJERO, HON. NORBIDEIRI B. EDDING, HON.
ANECITO S. DARUNDAY, HON. ANGELICA J. CARREON and HON.
LUZVIMINDA E. TORRINO,petitioners,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES
PEACE NEGOTIATING PANEL [GRP], as represented by HON.
RODOLFO C. GARCIA and HON. HERMOGENES ESPERON, in his
capacity as the Presidential Adviser of Peace Process, respondents.
x--------------------------------------------x

G.R. No. 183962

October 14, 2008

ERNESTO M. MACEDA, JEJOMAR C. BINAY, and AQUILINO L.

PIMENTEL III, petitioners,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES
PEACE NEGOTIATING PANEL, represented by its Chairman RODOLFO
C. GARCIA, and the MORO ISLAMIC LIBERATION FRONT PEACE
NEGOTIATING PANEL, represented by its Chairman MOHAGHER
IQBAL, respondents.
x--------------------------------------------x
FRANKLIN M. DRILON and ADEL ABBAS TAMANO, petitioners-inintervention.
x--------------------------------------------x
SEN. MANUEL A. ROXAS, petitioners-in-intervention.

Subject of these consolidated cases is the extent of the powers of the

President in pursuing the peace process.While the facts surrounding this
controversy center on the armed conflict in Mindanao between the
government and the Moro Islamic Liberation Front (MILF), the legal issue
involved has a bearing on all areas in the country where there has been a
long-standing armed conflict. Yet again, the Court is tasked to perform a
delicate balancing act. It must uncompromisingly delineate the bounds
within which the President may lawfully exercise her discretion, but it
must do so in strict adherence to the Constitution, lest its ruling unduly
restricts the freedom of action vested by that same Constitution in the
Chief Executive precisely to enable her to pursue the peace process
effectively.
I. FACTUAL ANTECEDENTS OF THE PETITIONS
On August 5, 2008, the Government of the Republic of the Philippines
(GRP) and the MILF, through the Chairpersons of their respective peace
negotiating panels, were scheduled to sign a Memorandum of Agreement
on the Ancestral Domain (MOA-AD) Aspect of the GRP-MILF Tripoli
Agreement on Peace of 2001 in Kuala Lumpur, Malaysia.

x--------------------------------------------x
MUNICIPALITY OF LINAMON duly represented by its Municipal Mayor
NOEL N. DEANO, petitioners-in-intervention,
x--------------------------------------------x
THE CITY OF ISABELA, BASILAN PROVINCE, represented by MAYOR
CHERRYLYN P. SANTOS-AKBAR,petitioners-in-intervention.
x--------------------------------------------x
THE PROVINCE OF SULTAN KUDARAT, rep. by HON. SUHARTO T.
MANGUDADATU, in his capacity as Provincial Governor and a resident
of the Province of Sultan Kudarat, petitioner-in-intervention.
x-------------------------------------------x
RUY ELIAS LOPEZ, for and in his own behalf and on behalf of
Indigenous Peoples in Mindanao Not Belonging to the MILF, petitioner-inintervention.
x--------------------------------------------x
CARLO B. GOMEZ, GERARDO S. DILIG, NESARIO G. AWAT,
JOSELITO C. ALISUAG and RICHALEX G. JAGMIS, as citizens and
residents of Palawan, petitioners-in-intervention.
x--------------------------------------------x
MARINO RIDAO and KISIN BUXANI, petitioners-in-intervention.
x--------------------------------------------x
MUSLIM LEGAL ASSISTANCE FOUNDATION, INC
(MUSLAF), respondent-in-intervention.
x--------------------------------------------x
MUSLIM MULTI-SECTORAL MOVEMENT FOR PEACE &
DEVELOPMENT (MMMPD), respondent-in-intervention.
x--------------------------------------------x
DECISION
CARPIO MORALES, J.:

The MILF is a rebel group which was established in March 1984 when,
under the leadership of the late Salamat Hashim, it splintered from the
Moro National Liberation Front (MNLF) then headed by Nur Misuari, on
the ground, among others, of what Salamat perceived to be the
manipulation of the MNLF away from an Islamic basis towards MarxistMaoist orientations.1
The signing of the MOA-AD between the GRP and the MILF was not to
materialize, however, for upon motion of petitioners, specifically those
who filed their cases before the scheduled signing of the MOA-AD, this
Court issued a Temporary Restraining Order enjoining the GRP from
signing the same.
The MOA-AD was preceded by a long process of negotiation and the
concluding of several prior agreements between the two parties
beginning in 1996, when the GRP-MILF peace negotiations began. On
July 18, 1997, the GRP and MILF Peace Panels signed the Agreement
on General Cessation of Hostilities. The following year, they signed the
General Framework of Agreement of Intent on August 27, 1998.
The Solicitor General, who represents respondents, summarizes the
MOA-AD by stating that the same contained, among others, the
commitment of the parties to pursue peace negotiations, protect and
respect human rights, negotiate with sincerity in the resolution and pacific
settlement of the conflict, and refrain from the use of threat or force to
attain undue advantage while the peace negotiations on the substantive
agenda are on-going.2
Early on, however, it was evident that there was not going to be any
smooth sailing in the GRP-MILF peace process. Towards the end of 1999
up to early 2000, the MILF attacked a number of municipalities in Central
Mindanao and, in March 2000, it took control of the town hall of
Kauswagan, Lanao del Norte.3 In response, then President Joseph
Estrada declared and carried out an "all-out-war" against the MILF.
When President Gloria Macapagal-Arroyo assumed office, the military
offensive against the MILF was suspended and the government sought a
resumption of the peace talks. The MILF, according to a leading MILF
member, initially responded with deep reservation, but when President
Arroyo asked the Government of Malaysia through Prime Minister
Mahathir Mohammad to help convince the MILF to return to the
negotiating table, the MILF convened its Central Committee to seriously
discuss the matter and, eventually, decided to meet with the GRP.4
The parties met in Kuala Lumpur on March 24, 2001, with the talks being
facilitated by the Malaysian government, the parties signing on the same
date the Agreement on the General Framework for the Resumption of

Peace Talks Between the GRP and the MILF. The MILF thereafter
suspended all its military actions.5
Formal peace talks between the parties were held in Tripoli, Libya from
June 20-22, 2001, the outcome of which was the GRP-MILF Tripoli
Agreement on Peace (Tripoli Agreement 2001) containing the basic
principles and agenda on the following aspects of the
negotiation: Security Aspect, Rehabilitation Aspect, and Ancestral
Domain Aspect. With regard to the Ancestral Domain Aspect, the parties
in Tripoli Agreement 2001 simply agreed "that the same be discussed
further by the Parties in their next meeting."
A second round of peace talks was held in Cyberjaya, Malaysia on
August 5-7, 2001 which ended with the signing of the Implementing
Guidelines on the Security Aspect of the Tripoli Agreement 2001 leading
to a ceasefire status between the parties. This was followed by the
Implementing Guidelines on the Humanitarian Rehabilitation and
Development Aspects of the Tripoli Agreement 2001, which was signed
on May 7, 2002 at Putrajaya, Malaysia. Nonetheless, there were many
incidence of violence between government forces and the MILF from
2002 to 2003.
Meanwhile, then MILF Chairman Salamat Hashim passed away on July
13, 2003 and he was replaced by Al Haj Murad, who was then the chief
peace negotiator of the MILF. Murad's position as chief peace negotiator
was taken over by Mohagher Iqbal.6
In 2005, several exploratory talks were held between the parties in Kuala
Lumpur, eventually leading to the crafting of the draft MOA-AD in its final
form, which, as mentioned, was set to be signed last August 5, 2008.
II. STATEMENT OF THE PROCEEDINGS
Before the Court is what is perhaps the most contentious "consensus"
ever embodied in an instrument - the MOA-AD which is assailed
principally by the present petitions bearing docket numbers 183591,
183752, 183893, 183951 and 183962.
Commonly impleaded as respondents are the GRP Peace Panel on
Ancestral Domain7 and the Presidential Adviser on the Peace Process
(PAPP) Hermogenes Esperon, Jr.
On July 23, 2008, the Province of North Cotabato8 and Vice-Governor
Emmanuel Piol filed a petition, docketed as G.R. No. 183591, for
Mandamus and Prohibition with Prayer for the Issuance of Writ of
Preliminary Injunction and Temporary Restraining Order.9 Invoking the
right to information on matters of public concern, petitioners seek to
compel respondents to disclose and furnish them the complete and
official copies of the MOA-AD including its attachments, and to prohibit
the slated signing of the MOA-AD, pending the disclosure of the contents
of the MOA-AD and the holding of a public consultation thereon.
Supplementarily, petitioners pray that the MOA-AD be declared
unconstitutional.10

Meanwhile, the City of Iligan16 filed a petition for Injunction and/or

Declaratory Relief, docketed as G.R. No. 183893, praying that
respondents be enjoined from signing the MOA-AD or, if the same had
already been signed, from implementing the same, and that the MOA-AD
be declared unconstitutional. Petitioners herein additionally implead
Executive Secretary Eduardo Ermita as respondent.
The Province of Zamboanga del Norte,17 Governor Rolando Yebes,
Vice-Governor Francis Olvis, Rep. Cecilia Jalosjos-Carreon, Rep. Cesar
Jalosjos, and the members18 of the Sangguniang Panlalawigan of
Zamboanga del Norte filed on August 15, 2008 a petition for Certiorari,
Mandamus and Prohibition,19 docketed as G.R. No. 183951. They
pray, inter alia, that the MOA-AD be declared null and void and without
operative effect, and that respondents be enjoined from executing the
MOA-AD.
On August 19, 2008, Ernesto Maceda, Jejomar Binay, and Aquilino
Pimentel III filed a petition for Prohibition,20docketed as G.R. No.
183962, praying for a judgment prohibiting and permanently enjoining
respondents from formally signing and executing the MOA-AD and or any
other agreement derived therefrom or similar thereto, and nullifying the
MOA-AD for being unconstitutional and illegal. Petitioners
herein additionally implead as respondent the MILF Peace Negotiating
Panel represented by its Chairman Mohagher Iqbal.
Various parties moved to intervene and were granted leave of court to file
their petitions-/comments-in-intervention. Petitioners-in-Intervention
include Senator Manuel A. Roxas, former Senate President Franklin
Drilon and Atty. Adel Tamano, the City of Isabela21 and Mayor Cherrylyn
Santos-Akbar, the Province of Sultan Kudarat22and Gov. Suharto
Mangudadatu, the Municipality of Linamon in Lanao del Norte,23 Ruy
Elias Lopez of Davao City and of the Bagobo tribe, Sangguniang
Panlungsod member Marino Ridao and businessman Kisin Buxani, both
of Cotabato City; and lawyers Carlo Gomez, Gerardo Dilig, Nesario Awat,
Joselito Alisuag, Richalex Jagmis, all of Palawan City. The Muslim Legal
Assistance Foundation, Inc. (Muslaf) and the Muslim Multi-Sectoral
Movement for Peace and Development (MMMPD) filed their respective
Comments-in-Intervention.
By subsequent Resolutions, the Court ordered the consolidation of the
petitions. Respondents filed Comments on the petitions, while some of
petitioners submitted their respective Replies.
Respondents, by Manifestation and Motion of August 19, 2008, stated
that the Executive Department shall thoroughly review the MOA-AD and
pursue further negotiations to address the issues hurled against it, and
thus moved to dismiss the cases. In the succeeding exchange of
pleadings, respondents' motion was met with vigorous opposition from
petitioners.
The cases were heard on oral argument on August 15, 22 and 29, 2008
that tackled the following principal issues:
1. Whether the petitions have become moot and academic

This initial petition was followed by another one, docketed as G.R. No.
183752, also for Mandamus and Prohibition11 filed by the City of
Zamboanga,12 Mayor Celso Lobregat, Rep. Ma. Isabelle Climaco and
Rep. Erico Basilio Fabian who likewise pray for similar injunctive reliefs.
Petitioners herein moreover pray that the City of Zamboanga be excluded
from the Bangsamoro Homeland and/or Bangsamoro Juridical Entity and,
in the alternative, that the MOA-AD be declared null and void.
By Resolution of August 4, 2008, the Court issued a Temporary
Restraining Order commanding and directing public respondents and
their agents to cease and desist from formally signing the MOAAD.13 The Court also required the Solicitor General to submit to the
Court and petitioners the official copy of the final draft of the MOAAD,14 to which she complied.15

(i) insofar as the mandamus aspect is concerned, in view of the

disclosure of official copies of the final draft of the Memorandum of
Agreement (MOA); and
(ii) insofar as the prohibition aspect involving the Local Government Units
is concerned, if it is considered that consultation has become fait
accompli with the finalization of the draft;
2. Whether the constitutionality and the legality of the MOA is ripe for
adjudication;
3. Whether respondent Government of the Republic of the Philippines
Peace Panel committed grave abuse of discretion amounting to lack or

excess of jurisdiction when it negotiated and initiated the MOA vis--vis

ISSUES Nos. 4 and 5;

territory under peace agreement) that partakes the nature of a treaty

device."

4. Whether there is a violation of the people's right to information on

matters of public concern (1987 Constitution, Article III, Sec. 7) under a
state policy of full disclosure of all its transactions involving public interest
(1987 Constitution, Article II, Sec. 28) including public consultation under
Republic Act No. 7160 (LOCAL GOVERNMENT CODE OF 1991)[;]

During the height of the Muslim Empire, early Muslim jurists tended to
see the world through a simple dichotomy: there was the dar-ul-Islam (the
Abode of Islam) and dar-ul-harb (the Abode of War). The first referred to
those lands where Islamic laws held sway, while the second denoted
those lands where Muslims were persecuted or where Muslim laws were
outlawed or ineffective.27 This way of viewing the world, however,
became more complex through the centuries as the Islamic world
became part of the international community of nations.

If it is in the affirmative, whether prohibition under Rule 65 of the 1997

Rules of Civil Procedure is an appropriate remedy;
5. Whether by signing the MOA, the Government of the Republic of the
Philippines would be BINDING itself
a) to create and recognize the Bangsamoro Juridical Entity (BJE) as a
separate state, or a juridical, territorial or political subdivision not
recognized by law;
b) to revise or amend the Constitution and existing laws to conform to the
MOA;
c) to concede to or recognize the claim of the Moro Islamic Liberation
Front for ancestral domain in violation of Republic Act No. 8371 (THE
INDIGENOUS PEOPLES RIGHTS ACT OF 1997), particularly Section
3(g) & Chapter VII (DELINEATION, RECOGNITION OF ANCESTRAL
DOMAINS)[;]
If in the affirmative, whether the Executive Branch has the authority to so
bind the Government of the Republic of the Philippines;
6. Whether the inclusion/exclusion of the Province of North Cotabato,
Cities of Zamboanga, Iligan and Isabela, and the Municipality of Linamon,
Lanao del Norte in/from the areas covered by the projected Bangsamoro
Homeland is a justiciable question; and

As Muslim States entered into treaties with their neighbors, even with
distant States and inter-governmental organizations, the classical division
of the world into dar-ul-Islam and dar-ul-harb eventually lost its meaning.
New terms were drawn up to describe novel ways of perceiving nonMuslim territories. For instance, areas like dar-ul-mua'hada (land
of compact) and dar-ul-sulh (land of treaty) referred to countries which,
though under a secular regime, maintained peaceful and cooperative
relations with Muslim States, having been bound to each other by treaty
or agreement. Dar-ul-aman (land of order), on the other hand, referred to
countries which, though not bound by treaty with Muslim States,
maintained freedom of religion for Muslims.28
It thus appears that the "compact rights entrenchment" emanating from
the regime of dar-ul-mua'hada and dar-ul-sulh simply refers to all other
agreements between the MILF and the Philippine government - the
Philippines being the land of compact and peace agreement - that
partake of the nature of a treaty device, "treaty" being broadly defined as
"any solemn agreement in writing that sets out understandings,
obligations, and benefits for both parties which provides for a framework
that elaborates the principles declared in the [MOA-AD]."29
The MOA-AD states that the Parties "HAVE AGREED AND
ACKNOWLEDGED AS FOLLOWS," and starts with its main body.

7. Whether desistance from signing the MOA derogates any prior valid
commitments of the Government of the Republic of the Philippines.24

The main body of the MOA-AD is divided into four strands, namely,
Concepts and Principles, Territory, Resources, and Governance.

The Court, thereafter, ordered the parties to submit their respective

Memoranda. Most of the parties submitted their memoranda on time.

A. CONCEPTS AND PRINCIPLES

III. OVERVIEW OF THE MOA-AD

As a necessary backdrop to the consideration of the objections raised in
the subject five petitions and six petitions-in-intervention against the
MOA-AD, as well as the two comments-in-intervention in favor of the
MOA-AD, the Court takes an overview of the MOA.
The MOA-AD identifies the Parties to it as the GRP and the MILF.
Under the heading "Terms of Reference" (TOR), the MOA-AD includes
not only four earlier agreements between the GRP and MILF, but also
two agreements between the GRP and the MNLF: the 1976 Tripoli
Agreement, and the Final Peace Agreement on the Implementation of the
1976 Tripoli Agreement, signed on September 2, 1996 during the
administration of President Fidel Ramos.
The MOA-AD also identifies as TOR two local statutes - the organic act
for the Autonomous Region in Muslim Mindanao (ARMM)25 and the
Indigenous Peoples Rights Act (IPRA),26 and several international law
instruments - the ILO Convention No. 169 Concerning Indigenous and
Tribal Peoples in Independent Countries in relation to the UN Declaration
on the Rights of the Indigenous Peoples, and the UN Charter, among
others.
The MOA-AD includes as a final TOR the generic category of "compact
rights entrenchment emanating from the regime of dar-ul-mua'hada (or
territory under compact) and dar-ul-sulh (or

This strand begins with the statement that it is "the birthright of all Moros
and all Indigenous peoples of Mindanao to identify themselves and be
accepted as Bangsamoros.'" It defines "Bangsamoro people" as
the natives or original inhabitants of Mindanao and its adjacent islands
including Palawan and the Sulu archipelago at the time of conquest or
colonization, and their descendants whether mixed or of full
blood, including their spouses.30
Thus, the concept of "Bangsamoro," as defined in this strand of the MOAAD, includes not only "Moros" as traditionally understood even by
Muslims,31 but all indigenous peoples of Mindanao and its adjacent
islands. The MOA-AD adds that the freedom of choice of indigenous
peoples shall be respected. What this freedom of choice consists in has
not been specifically defined.
The MOA-AD proceeds to refer to the "Bangsamoro homeland," the
ownership of which is vested exclusively in the Bangsamoro people by
virtue of their prior rights of occupation.32 Both parties to the MOA-AD
acknowledge that ancestral domain does not form part of the public
domain.33
The Bangsamoro people are acknowledged as having the right to selfgovernance, which right is said to be rooted on ancestral territoriality
exercised originally under the suzerain authority of their sultanates and
the Pat a Pangampong ku Ranaw. The sultanates were described as
states or "karajaan/kadatuan" resembling a body politic endowed with all
the elements of a nation-state in the modern sense.34

The MOA-AD thus grounds the right to self-governance of the

Bangsamoro people on the past suzerain authority of the sultanates. As
gathered, the territory defined as the Bangsamoro homeland was ruled
by several sultanates and, specifically in the case of the Maranao, by
the Pat a Pangampong ku Ranaw, a confederation of independent
principalities (pangampong) each ruled by datus and sultans, none of
whom was supreme over the others.35
The MOA-AD goes on to describe the Bangsamoro people as "the First
Nation' with defined territory and with a system of government having
entered into treaties of amity and commerce with foreign nations."
The term "First Nation" is of Canadian origin referring to the indigenous
peoples of that territory, particularly those known as Indians. In Canada,
each of these indigenous peoples is equally entitled to be called "First
Nation," hence, all of them are usually described collectively by the plural
"First Nations."36 To that extent, the MOA-AD, by identifying the
Bangsamoro people as "the First Nation" - suggesting its exclusive
entitlement to that designation - departs from the Canadian usage of the
term.
The MOA-AD then mentions for the first time the "Bangsamoro Juridical
Entity" (BJE) to which it grants the authority and jurisdiction over the
Ancestral Domain and Ancestral Lands of the Bangsamoro.37
B. TERRITORY

C. RESOURCES
The MOA-AD states that the BJE is free to enter into any economic
cooperation and trade relations with foreign countries and shall have the
option to establish trade missions in those countries. Such relationships
and understandings, however, are not to include aggression against the
GRP. The BJE may also enter into environmental cooperation
agreements.46
The external defense of the BJE is to remain the duty and obligation of
the Central Government. The Central Government is also bound to "take
necessary steps to ensure the BJE's participation in international
meetings and events" like those of the ASEAN and the specialized
agencies of the UN. The BJE is to be entitled to participate in Philippine
official missions and delegations for the negotiation of border agreements
or protocols for environmental protection and equitable sharing of
incomes and revenues involving the bodies of water adjacent to or
between the islands forming part of the ancestral domain.47
With regard to the right of exploring for, producing, and obtaining all
potential sources of energy, petroleum, fossil fuel, mineral oil and natural
gas, the jurisdiction and control thereon is to be vested in the BJE "as the
party having control within its territorial jurisdiction." This right carries
the proviso that, "in times of national emergency, when public interest so
requires," the Central Government may, for a fixed period and under
reasonable terms as may be agreed upon by both Parties, assume or
direct the operation of such resources.48

The territory of the Bangsamoro homeland is described as the land mass

as well as the maritime, terrestrial, fluvial and alluvial domains, including
the aerial domain and the atmospheric space above it, embracing the
Mindanao-Sulu-Palawan geographic region.38

The sharing between the Central Government and the BJE of total
production pertaining to natural resources is to be 75:25 in favor of the
BJE.49

More specifically, the core of the BJE is defined as the present

geographic area of the ARMM - thus constituting the following areas:
Lanao del Sur, Maguindanao, Sulu, Tawi-Tawi, Basilan, and Marawi City.
Significantly, this core also includes certain municipalities of Lanao del
Norte that voted for inclusion in the ARMM in the 2001 plebiscite.39

The MOA-AD provides that legitimate grievances of the Bangsamoro

people arising from any unjust dispossession of their territorial and
proprietary rights, customary land tenures, or their marginalization shall
be acknowledged. Whenever restoration is no longer possible, reparation
is to be in such form as mutually determined by the Parties.50

Outside of this core, the BJE is to cover other provinces, cities,

municipalities and barangays, which are grouped into two categories,
Category A and Category B. Each of these areas is to be subjected to a
plebiscite to be held on different dates, years apart from each other.
Thus, Category A areas are to be subjected to a plebiscite not later than
twelve (12) months following the signing of the MOA-AD.40 Category B
areas, also called "Special Intervention Areas," on the other hand, are to
be subjected to a plebiscite twenty-five (25) years from the signing of a
separate agreement - the Comprehensive Compact.41

The BJE may modify or cancel the forest concessions, timber licenses,
contracts or agreements, mining concessions, Mineral Production and
Sharing Agreements (MPSA), Industrial Forest Management Agreements
(IFMA), and other land tenure instruments granted by the Philippine
Government, including those issued by the present ARMM.51

The Parties to the MOA-AD stipulate that the BJE shall have jurisdiction
over all natural resources within its "internal waters," defined as extending
fifteen (15) kilometers from the coastline of the BJE area;42 that the BJE
shall also have "territorial waters," which shall stretch beyond the BJE
internal waters up to the baselines of the Republic of the Philippines (RP)
south east and south west of mainland Mindanao; and that within
these territorialwaters, the BJE and the "Central Government" (used
interchangeably with RP) shall exercise joint jurisdiction, authority and
management over all natural resources.43 Notably, the jurisdiction over
the internal waters is not similarly described as "joint."
The MOA-AD further provides for the sharing of minerals on
the territorial waters between the Central Government and the BJE, in
favor of the latter, through production sharing and economic cooperation
agreement.44 The activities which the Parties are allowed to conduct on
the territorial waters are enumerated, among which are the exploration
and utilization of natural resources, regulation of shipping and fishing
activities, and the enforcement of police and safety measures.45 There is
no similar provision on the sharing of minerals and allowed activities with
respect to the internal waters of the BJE.

D. GOVERNANCE
The MOA-AD binds the Parties to invite a multinational third-party to
observe and monitor the implementation of the Comprehensive Compact.
This compact is to embody the "details for the effective enforcement" and
"the mechanisms and modalities for the actual implementation" of the
MOA-AD. The MOA-AD explicitly provides that the participation of the
third party shall not in any way affect the status of the relationship
between the Central Government and the BJE.52
The "associative" relationship
between the Central Government
and the BJE
The MOA-AD describes the relationship of the Central Government and
the BJE as "associative," characterized by shared authority and
responsibility. And it states that the structure of governance is to be
based on executive, legislative, judicial, and administrative institutions
with defined powers and functions in the Comprehensive Compact.
The MOA-AD provides that its provisions requiring "amendments to the
existing legal framework" shall take effect upon signing of the
Comprehensive Compact and upon effecting the aforesaid amendments,
with due regard to the non-derogation of prior agreements and within the

stipulated timeframe to be contained in the Comprehensive Compact. As

will be discussed later, much of the present controversy hangs on the
legality of this provision.

MOA-AD remains to be a proposal that does not automatically create

legally demandable rights and obligations until the list of operative acts
required have been duly complied with. x x x

The BJE is granted the power to build, develop and maintain its own
institutions inclusive of civil service, electoral, financial and banking,
education, legislation, legal, economic, police and internal security force,
judicial system and correctional institutions, the details of which shall be
discussed in the negotiation of the comprehensive compact.

xxxx

As stated early on, the MOA-AD was set to be signed on August 5, 2008
by Rodolfo Garcia and Mohagher Iqbal, Chairpersons of the Peace
Negotiating Panels of the GRP and the MILF, respectively. Notably, the
penultimate paragraph of the MOA-AD identifies the signatories as "the
representatives of the Parties," meaning the GRP and MILF themselves,
and not merely of the negotiating panels.53 In addition, the signature
page of the MOA-AD states that it is "WITNESSED BY" Datuk Othman
Bin Abd Razak, Special Adviser to the Prime Minister of Malaysia,
"ENDORSED BY" Ambassador Sayed Elmasry, Adviser to Organization
of the Islamic Conference (OIC) Secretary General and Special Envoy for
Peace Process in Southern Philippines, and SIGNED "IN THE
PRESENCE OF" Dr. Albert G. Romulo, Secretary of Foreign Affairs of RP
and Dato' Seri Utama Dr. Rais Bin Yatim, Minister of Foreign Affairs,
Malaysia, all of whom were scheduled to sign the Agreement last August
5, 2008.
Annexed to the MOA-AD are two documents containing the respective
lists cum maps of the provinces, municipalities, and barangays under
Categories A and B earlier mentioned in the discussion on the strand on
TERRITORY.
IV. PROCEDURAL ISSUES
A. RIPENESS
The power of judicial review is limited to actual cases or
controversies.54 Courts decline to issue advisory opinions or to resolve
hypothetical or feigned problems, or mere academic questions.55 The
limitation of the power of judicial review to actual cases and controversies
defines the role assigned to the judiciary in a tripartite allocation of power,
to assure that the courts will not intrude into areas committed to the other
branches of government.56
An actual case or controversy involves a conflict of legal rights, an
assertion of opposite legal claims, susceptible of judicial resolution as
distinguished from a hypothetical or abstract difference or dispute. There
must be a contrariety of legal rights that can be interpreted and enforced
on the basis of existing law and jurisprudence.57The Court can decide
the constitutionality of an act or treaty only when a proper case between
opposing parties is submitted for judicial determination.58
Related to the requirement of an actual case or controversy is the
requirement of ripeness. A question is ripe for adjudication when the act
being challenged has had a direct adverse effect on the individual
challenging it.59 For a case to be considered ripe for adjudication, it is a
prerequisite that something had then been accomplished or performed by
either branch before a court may come into the picture,60 and the
petitioner must allege the existence of an immediate or threatened injury
to itself as a result of the challenged action.61 He must show that he has
sustained or is immediately in danger of sustaining some direct injury as
a result of the act complained of.62
The Solicitor General argues that there is no justiciable controversy that
is ripe for judicial review in the present petitions, reasoning that
The unsigned MOA-AD is simply a list of consensus points subject to
further negotiations and legislative enactments as well as constitutional
processes aimed at attaining a final peaceful agreement. Simply put, the

In the cases at bar, it is respectfully submitted that this Honorable Court

has no authority to pass upon issues based on hypothetical or feigned
constitutional problems or interests with no concrete bases. Considering
the preliminary character of the MOA-AD, there are no concrete acts that
could possibly violate petitioners' and intervenors' rights since the acts
complained of are mere contemplated steps toward the formulation of a
final peace agreement. Plainly, petitioners and intervenors' perceived
injury, if at all, is merely imaginary and illusory apart from being
unfounded and based on mere conjectures. (Underscoring supplied)
The Solicitor General cites63 the following provisions of the MOA-AD:
TERRITORY
xxxx
2. Toward this end, the Parties enter into the following stipulations:
xxxx
d. Without derogating from the requirements of prior agreements, the
Government stipulates to conduct and deliver, using all possible legal
measures, within twelve (12) months following the signing of the MOAAD, a plebiscite covering the areas as enumerated in the list and
depicted in the map as Category A attached herein (the "Annex"). The
Annex constitutes an integral part of this framework agreement. Toward
this end, the Parties shall endeavor to complete the negotiations and
resolve all outstanding issues on the Comprehensive Compact within
fifteen (15) months from the signing of the MOA-AD.
xxxx
GOVERNANCE
xxxx
7. The Parties agree that mechanisms and modalities for the actual
implementation of this MOA-AD shall be spelt out in the Comprehensive
Compact to mutually take such steps to enable it to occur effectively.
Any provisions of the MOA-AD requiring amendments to the existing
legal framework shall come into forceupon the signing of a
Comprehensive Compact and upon effecting the necessary changes to
the legal framework with due regard to non-derogation of prior
agreements and within the stipulated timeframe to be contained in the
Comprehensive Compact.64 (Underscoring supplied)
The Solicitor General's arguments fail to persuade.
Concrete acts under the MOA-AD are not necessary to render the
present controversy ripe. In Pimentel, Jr. v. Aguirre,65 this Court held:
x x x [B]y the mere enactment of the questioned law or the approval of
the challenged action, the dispute is said to have ripened into a judicial
controversy even without any other overt act. Indeed, even a singular
violation of the Constitution and/or the law is enough to awaken judicial
duty.
xxxx
By the same token, when an act of the President, who in our
constitutional scheme is a coequal of Congress, is seriously alleged to

have infringed the Constitution and the laws x x x settling the dispute
becomes the duty and the responsibility of the courts.66
In Santa Fe Independent School District v. Doe,67 the United States
Supreme Court held that the challenge to the constitutionality of the
school's policy allowing student-led prayers and speeches before games
was ripe for adjudication, even if no public prayer had yet been led under
the policy, because the policy was being challenged as unconstitutional
on its face.68
That the law or act in question is not yet effective does not negate
ripeness. For example, in New York v. United States,69 decided in 1992,
the United States Supreme Court held that the action by the State of New
York challenging the provisions of the Low-Level Radioactive Waste
Policy Act was ripe for adjudication even if the questioned provision was
not to take effect until January 1, 1996, because the parties agreed that
New York had to take immediate action to avoid the provision's
consequences.70
The present petitions pray for Certiorari,71 Prohibition, and Mandamus.
Certiorari and Prohibition are remedies granted by law when any tribunal,
board or officer has acted, in the case of certiorari, or is proceeding, in
the case of prohibition, without or in excess of its jurisdiction or with grave
abuse of discretion amounting to lack or excess of
jurisdiction.72 Mandamus is a remedy granted by law when any tribunal,
corporation, board, officer or person unlawfully neglects the performance
of an act which the law specifically enjoins as a duty resulting from an
office, trust, or station, or unlawfully excludes another from the use or
enjoyment of a right or office to which such other is entitled.73 Certiorari,
Mandamus and Prohibition are appropriate remedies to raise
constitutional issues and to review and/or prohibit/nullify, when proper,
acts of legislative and executive officials.74
The authority of the GRP Negotiating Panel is defined by Executive Order
No. 3 (E.O. No. 3), issued on February 28, 2001.75 The said executive
order requires that "[t]he government's policy framework for peace,
including the systematic approach and the administrative structure for
carrying out the comprehensive peace process x x x be governed by this
Executive Order."76
The present petitions allege that respondents GRP Panel and PAPP
Esperon drafted the terms of the MOA-AD without consulting the local
government units or communities affected, nor informing them of the
proceedings. As will be discussed in greater detail later, such omission,
by itself, constitutes a departure by respondents from their mandate
under E.O. No. 3.
Furthermore, the petitions allege that the provisions of the MOAAD violate the Constitution. The MOA-AD provides that "any provisions of
the MOA-AD requiring amendments to the existing legal framework shall
come into force upon the signing of a Comprehensive Compact and upon
effecting the necessary changes to the legal framework," implying an
amendment of the Constitution to accommodate the MOA-AD. This
stipulation, in effect,guaranteed to the MILF the amendment of the
Constitution. Such act constitutes another violation of its authority. Again,
these points will be discussed in more detail later.
As the petitions allege acts or omissions on the part of respondent
that exceed their authority, by violating their duties under E.O. No. 3 and
the provisions of the Constitution and statutes, the petitions make a prima
facie case for Certiorari, Prohibition, and Mandamus, and an actual case
or controversy ripe for adjudication exists. When an act of a branch of
government is seriously alleged to have infringed the Constitution, it
becomes not only the right but in fact the duty of the judiciary to settle the
dispute.77
B. LOCUS STANDI

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."78
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.79
When suing as a citizen, the person complaining must allege that he has
been or is about to be denied some right or privilege to which he is
lawfully entitled or that he is about to be subjected to some burdens or
penalties by reason of the statute or act complained of.80 When the issue
concerns a public right, it is sufficient that the petitioner is a citizen and
has an interest in the execution of the laws.81
For a taxpayer, one is allowed to sue where there is an assertion that
public funds are illegally disbursed or deflected to an illegal purpose, or
that there is a wastage of public funds through the enforcement of an
invalid or unconstitutional law.82 The Court retains discretion whether or
not to allow a taxpayer's suit.83
In the case of a legislator or member of Congress, an act of the Executive
that injures the institution of Congress causes a derivative but
nonetheless substantial injury that can be questioned by legislators. A
member of the House of Representatives has standing to maintain
inviolate the prerogatives, powers and privileges vested by the
Constitution in his office.84
An organization may be granted standing to assert the rights of its
members,85 but the mere invocation by theIntegrated Bar of the
Philippines or any member of the legal profession of the duty to preserve
the rule of law does not suffice to clothe it with standing.86
As regards a local government unit (LGU), it can seek relief in order to
protect or vindicate an interest of its own, and of the other LGUs.87
Intervenors, meanwhile, may be given legal standing upon showing of
facts that satisfy the requirements of the law authorizing
intervention,88 such as a legal interest in the matter in litigation, or in the
success of either of the parties.
In any case, the Court has discretion to relax the procedural technicality
on locus standi, given the liberal attitude it has exercised, highlighted in
the case of David v. Macapagal-Arroyo,89 where technicalities of
procedure were brushed aside, the constitutional issues raised being of
paramount public interest or of transcendental importance deserving the
attention of the Court in view of their seriousness, novelty and weight as
precedents.90 The Court's forbearing stance on locus standi on issues
involving constitutional issues has for its purpose the protection of
fundamental rights.
In not a few cases, the Court, in keeping with its duty under the
Constitution to determine whether the other branches of government
have kept themselves within the limits of the Constitution and the laws
and have not abused the discretion given them, has brushed aside
technical rules of procedure.91
In the petitions at bar, petitioners Province of North Cotabato (G.R. No.
183591) Province of Zamboanga del Norte (G.R. No. 183951), City of
Iligan (G.R. No. 183893) and City of Zamboanga (G.R. No. 183752) and
petitioners-in-intervention Province of Sultan Kudarat, City of
Isabela and Municipality of Linamon havelocus standi in view of the direct
and substantial injury that they, as LGUs, would suffer as their territories,
whether in whole or in part, are to be included in the intended domain of
the BJE. These petitioners allege that they did not vote for their inclusion
in the ARMM which would be expanded to form the BJE territory.
Petitioners' legal standing is thus beyond doubt.

In G.R. No. 183962, petitioners Ernesto Maceda, Jejomar

Binay and Aquilino Pimentel III would have no standing as citizens and
taxpayers for their failure to specify that they would be denied some right
or privilege or there would be wastage of public funds. The fact that they
are a former Senator, an incumbent mayor of Makati City, and a resident
of Cagayan de Oro, respectively, is of no consequence. Considering their
invocation of the transcendental importance of the issues at hand,
however, the Court grants them standing.
Intervenors Franklin Drilon and Adel Tamano, in alleging their standing as
taxpayers, assert that government funds would be expended for the
conduct of an illegal and unconstitutional plebiscite to delineate the BJE
territory. On that score alone, they can be given legal standing. Their
allegation that the issues involved in these petitions are of "undeniable
transcendental importance" clothes them with added basis for their
personality to intervene in these petitions.
With regard to Senator Manuel Roxas, his standing is premised on his
being a member of the Senate and a citizen to enforce compliance by
respondents of the public's constitutional right to be informed of the MOAAD, as well as on a genuine legal interest in the matter in litigation, or in
the success or failure of either of the parties. He thus possesses the
requisite standing as an intervenor.
With respect to Intervenors Ruy Elias Lopez, as a former congressman of
the 3rd district of Davao City, a taxpayer and a member of the Bagobo
tribe; Carlo B. Gomez, et al., as members of the IBP Palawan chapter,
citizens and taxpayers; Marino Ridao, as taxpayer, resident and member
of the Sangguniang Panlungsod of Cotabato City; and Kisin Buxani, as
taxpayer, they failed to allege any proper legal interest in the present
petitions. Just the same, the Court exercises its discretion to relax the
procedural technicality on locus standi given the paramount public
interest in the issues at hand.
Intervening respondents Muslim Multi-Sectoral Movement for Peace and
Development, an advocacy group for justice and the attainment of peace
and prosperity in Muslim Mindanao; and Muslim Legal Assistance
Foundation Inc., a non-government organization of Muslim lawyers,
allege that they stand to be benefited or prejudiced, as the case may be,
in the resolution of the petitions concerning the MOA-AD, and prays for
the denial of the petitions on the grounds therein stated. Such legal
interest suffices to clothe them with standing.
B. MOOTNESS
Respondents insist that the present petitions have been rendered moot
with the satisfaction of all the reliefs prayed for by petitioners and the
subsequent pronouncement of the Executive Secretary that "[n]o matter
what the Supreme Court ultimately decides[,] the government will not sign
the MOA."92
In lending credence to this policy decision, the Solicitor General points
out that the President had already disbanded the GRP Peace Panel.93
In David v. Macapagal-Arroyo,94 this Court held that the "moot and
academic" principle not being a magical formula that automatically
dissuades courts in resolving a case, it will decide cases, otherwise moot
and academic, if it finds that (a) there is a grave violation of the
Constitution;95 (b) the situation is of exceptional character and
paramount public interest is involved;96 (c) the constitutional issue raised
requires formulation of controlling principles to guide the bench, the bar,
and the public;97 and (d) the case is capable of repetition yet evading
review.98
Another exclusionary circumstance that may be considered is where
there is a voluntary cessation of the activity complained of by the
defendant or doer. Thus, once a suit is filed and the doer voluntarily
ceases the challenged conduct, it does not automatically deprive the

tribunal of power to hear and determine the case and does not render the
case moot especially when the plaintiff seeks damages or prays for
injunctive relief against the possible recurrence of the violation.99
The present petitions fall squarely into these exceptions to thus thrust
them into the domain of judicial review. The grounds cited above
in David are just as applicable in the present cases as they were, not only
in David, but also in Province of Batangas v. Romulo100 and Manalo v.
Calderon101 where the Court similarly decided them on the merits,
supervening events that would ordinarily have rendered the same moot
notwithstanding.
Petitions not mooted
Contrary then to the asseverations of respondents, the non-signing of the
MOA-AD and the eventual dissolution of the GRP Peace Panel did not
moot the present petitions. It bears emphasis that the signing of the
MOA-AD did not push through due to the Court's issuance of a
Temporary Restraining Order.
Contrary too to respondents' position, the MOA-AD cannot be considered
a mere "list of consensus points," especially given its nomenclature,
the need to have it signed or initialed by all the parties concerned on
August 5, 2008, and the far-reaching Constitutional implications of these
"consensus points," foremost of which is the creation of the BJE.
In fact, as what will, in the main, be discussed, there is a commitment on
the part of respondents to amend and effect necessary changes to the
existing legal framework for certain provisions of the MOA-AD to take
effect. Consequently, the present petitions are not confined to the terms
and provisions of the MOA-AD, but to other ongoing and future negotiations and agreements necessary for its
realization. The petitions have not, therefore, been rendered moot and
academic simply by the public disclosure of the MOA-AD,102 the
manifestation that it will not be signed as well as the disbanding of the
GRP Panel not withstanding.
Petitions are imbued with paramount public interest
There is no gainsaying that the petitions are imbued with paramount
public interest, involving a significant part of the country's territory and the
wide-ranging political modifications of affected LGUs. The assertion that
the MOA-AD is subject to further legal enactments including possible
Constitutional amendments more than ever provides impetus for the
Court to formulate controlling principles to guide the bench, the bar, the
public and, in this case, the government and its negotiating entity.
Respondents cite Suplico v. NEDA, et al.103 where the Court did not
"pontificat[e] on issues which no longer legitimately constitute an actual
case or controversy [as this] will do more harm than good to the nation as
a whole."
The present petitions must be differentiated from Suplico. Primarily,
in Suplico, what was assailed and eventually cancelled was a standalone government procurement contract for a national broadband
network involving a one-time contractual relation between two parties-the
government and a private foreign corporation. As the issues therein
involved specific government procurement policies and standard
principles on contracts, the majority opinion in Suplico found nothing
exceptional therein, the factual circumstances being peculiar only to the
transactions and parties involved in the controversy.
The MOA-AD is part of a series of agreements
In the present controversy, the MOA-AD is a significant part of a series of
agreements necessary to carry out the Tripoli Agreement 2001. The
MOA-AD which dwells on the Ancestral Domain Aspect of said Tripoli
Agreement is the third such component to be undertaken following the

implementation of the Security Aspect in August 2001 and

the Humanitarian, Rehabilitation and Development Aspect in May 2002.

Petitioners invoke their constitutional right to information on matters of

public concern, as provided in Section 7, Article III on the Bill of Rights:

Accordingly, even if the Executive Secretary, in his Memorandum of

August 28, 2008 to the Solicitor General, has stated that "no matter what
the Supreme Court ultimately decides[,] the government will not sign the
MOA[-AD],"mootness will not set in in light of the terms of the Tripoli
Agreement 2001.

Sec. 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.107

Need to formulate principles-guidelines

Surely, the present MOA-AD can be renegotiated or another one will be
drawn up to carry out the Ancestral Domain Aspect of the Tripoli
Agreement 2001, in another or in any form, which could contain similar or
significantly drastic provisions. While the Court notes the word of the
Executive Secretary that the government "is committed to securing an
agreement that is both constitutional and equitable because that is the
only way that long-lasting peace can be assured," it is minded to render
a decision on the merits in the present petitions toformulate controlling
principles to guide the bench, the bar, the public and, most especially, the
government in negotiating with the MILF regarding Ancestral Domain.
Respondents invite the Court's attention to the separate opinion of then
Chief Justice Artemio Panganiban inSanlakas v. Reyes104 in which he
stated that the doctrine of "capable of repetition yet evading review" can
override mootness, "provided the party raising it in a proper case has
been and/or continue to be prejudiced or damaged as a direct result of
their issuance." They contend that the Court must have jurisdiction over
the subject matter for the doctrine to be invoked.
The present petitions all contain prayers for Prohibition over which this
Court exercises original jurisdiction. While G.R. No. 183893 (City of Iligan
v. GRP) is a petition for Injunction and Declaratory Relief, the Court will
treat it as one for Prohibition as it has far reaching implications and raises
questions that need to be resolved.105 At all events, the Court has
jurisdiction over most if not the rest of the petitions.
Indeed, the present petitions afford a proper venue for the Court to again
apply the doctrine immediately referred to as what it had done in a
number of landmark cases.106 There is a reasonable expectation that
petitioners, particularly the Provinces of North Cotabato, Zamboanga del
Norte and Sultan Kudarat, the Cities of Zamboanga, Iligan and Isabela,
and the Municipality of Linamon, will again be subjected to the same
problem in the future as respondents' actions are capable of repetition, in
another or any form.
It is with respect to the prayers for Mandamus that the petitions have
become moot, respondents having, by Compliance of August 7, 2008,
provided this Court and petitioners with official copies of the final draft of
the MOA-AD and its annexes. Too, intervenors have been furnished, or
have procured for themselves, copies of the MOA-AD.
V. SUBSTANTIVE ISSUES
As culled from the Petitions and Petitions-in-Intervention, there are
basically two SUBSTANTIVE issues to be resolved, one relating to
the manner in which the MOA-AD was negotiated and finalized, the other
relating to its provisions, viz:
1. Did respondents violate constitutional and statutory provisions on
public consultation and the right to information when they negotiated and
later initialed the MOA-AD?
2. Do the contents of the MOA-AD violate the Constitution and the laws?
ON THE FIRST SUBSTANTIVE ISSUE

As early as 1948, in Subido v. Ozaeta,108 the Court has recognized the

statutory right to examine and inspect public records, a right which was
eventually accorded constitutional status.
The right of access to public documents, as enshrined in both the 1973
Constitution and the 1987 Constitution, has been recognized as a selfexecutory constitutional right.109
In the 1976 case of Baldoza v. Hon. Judge Dimaano,110 the Court ruled
that access to public records is predicated on the right of the people to
acquire information on matters of public concern since, undoubtedly, in a
democracy, the pubic has a legitimate interest in matters of social and
political significance.
x x x The incorporation of this right in the Constitution is a recognition of
the fundamental role of free exchange of information in a democracy.
There can be no realistic perception by the public of the nation's
problems, nor a meaningful democratic decision-making if they are
denied access to information of general interest. Information is needed to
enable the members of society to cope with the exigencies of the times.
As has been aptly observed: "Maintaining the flow of such information
depends on protection for both its acquisition and its dissemination since,
if either process is interrupted, the flow inevitably ceases." x x x111
In the same way that free discussion enables members of society to cope
with the exigencies of their time, access to information of general interest
aids the people in democratic decision-making by giving them a better
perspective of the vital issues confronting the nation112 so that they may
be able to criticize and participate in the affairs of the government in a
responsible, reasonable and effective manner. It is by ensuring an
unfettered and uninhibited exchange of ideas among a well-informed
public that a government remains responsive to the changes desired by
the people.113
The MOA-AD is a matter of public concern
That the subject of the information sought in the present cases is a matter
of public concern114 faces no serious challenge. In fact, respondents
admit that the MOA-AD is indeed of public concern.115 In previous
cases, the Court found that the regularity of real estate transactions
entered in the Register of Deeds,116 the need for adequate notice to the
public of the various laws,117 the civil service eligibility of a public
employee,118 the proper management of GSIS funds allegedly used to
grant loans to public officials,119 the recovery of the Marcoses' alleged
ill-gotten wealth,120 and the identity of party-list nominees,121 among
others, are matters of public concern. Undoubtedly, the MOA-AD subject
of the present cases is of public concern, involving as it does
thesovereignty and territorial integrity of the State, which directly affects
the lives of the public at large.
Matters of public concern covered by the right to information include
steps and negotiations leading to the consummation of the contract. In
not distinguishing as to the executory nature or commercial character of
agreements, the Court has categorically ruled:
x x x [T]he right to information "contemplates inclusion of negotiations
leading to the consummation of the transaction." Certainly, a
consummated contract is not a requirement for the exercise of the right to

information. Otherwise, the people can never exercise the right if no

contract is consummated, and if one is consummated, it may be too late
for the public to expose its defects.

affairs but, of course, Congress here may no longer pass a law revoking
it, or if this is approved, revoking this principle, which is inconsistent with
this policy.129 (Emphasis supplied)

Requiring a consummated contract will keep the public in the dark until
the contract, which may be grossly disadvantageous to the government
or even illegal, becomes fait accompli. This negates the State policy of
full transparency on matters of public concern, a situation which the
framers of the Constitution could not have intended. Such a requirement
will prevent the citizenry from participating in the public discussion of
any proposed contract, effectively truncating a basic right enshrined in
the Bill of Rights. We can allow neither an emasculation of a
constitutional right, nor a retreat by the State of its avowed "policy of full
disclosure of all its transactions involving public interest."122 (Emphasis
and italics in the original)

Indubitably, the effectivity of the policy of public disclosure need not await
the passing of a statute. As Congress cannot revoke this principle, it is
merely directed to provide for "reasonable safeguards." The complete
and effective exercise of the right to information necessitates that its
complementary provision on public disclosure derive the same selfexecutory nature. Since both provisions go hand-in-hand, it is absurd to
say that the broader130 right to information on matters of public concern
is already enforceable while the correlative duty of the State to disclose
its transactions involving public interest is not enforceable until there is an
enabling law.Respondents cannot thus point to the absence of an
implementing legislation as an excuse in not effecting such policy.

Intended as a "splendid symmetry"123 to the right to information under

the Bill of Rights is the policy of public disclosure under Section 28,
Article II of the Constitution reading:
Sec. 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.124

An essential element of these freedoms is to keep open a continuing

dialogue or process of communication between the government and the
people. It is in the interest of the State that the channels for free political
discussion be maintained to the end that the government may perceive
and be responsive to the people's will.131Envisioned to be corollary to
the twin rights to information and disclosure is the design for feedback
mechanisms.

The policy of full public disclosure enunciated in above-quoted Section

28 complements the right of access to information on matters of public
concern found in the Bill of Rights. The right to information guarantees
the right of the people to demand information, while Section 28
recognizes the duty of officialdom to give information even if nobody
demands.125

MS. ROSARIO BRAID. Yes. And lastly, Mr. Presiding Officer, will the
people be able to participate? Will the government provide feedback
mechanisms so that the people can participate and can react where the
existing media facilities are not able to provide full feedback mechanisms
to the government? I suppose this will be part of the government
implementing operational mechanisms.

The policy of public disclosure establishes a concrete ethical principle for

the conduct of public affairs in a genuinely open democracy, with the
people's right to know as the centerpiece. It is a mandate of the State to
be accountable by following such policy.126 These provisions are vital to
the exercise of the freedom of expression and essential to hold public
officials at all times accountable to the people.127

MR. OPLE. Yes. I think through their elected representatives and that is
how these courses take place. There is a message and a feedback, both
ways.

Whether Section 28 is self-executory, the records of the deliberations of

the Constitutional Commission so disclose:
MR. SUAREZ. And since this is not self-executory, this policy will not be
enunciated or will not be in force and effect until after Congress shall
have provided it.
MR. OPLE. I expect it to influence the climate of public ethics
immediately but, of course, the implementing law will have to be enacted
by Congress, Mr. Presiding Officer.128
The following discourse, after Commissioner Hilario Davide, Jr., sought
clarification on the issue, is enlightening.
MR. DAVIDE. I would like to get some clarifications on this. Mr. Presiding
Officer, did I get the Gentleman correctly as having said that this is not a
self-executing provision? It would require a legislation by Congress to
implement?
MR. OPLE. Yes. Originally, it was going to be self-executing, but I
accepted an amendment from Commissioner Regalado, so that the
safeguards on national interest are modified by the clause "as may be
provided by law"
MR. DAVIDE. But as worded, does it not mean that this will immediately
take effect and Congress may provide for reasonable safeguards on the
sole ground national interest?
MR. OPLE. Yes. I think so, Mr. Presiding Officer, I said earlier that it
should immediately influence the climate of the conduct of public

xxxx
MS. ROSARIO BRAID. Mr. Presiding Officer, may I just make one last
sentence?
I think when we talk about the feedback network, we are not talking about
public officials but also network of private business o[r] community-based
organizations that will be reacting. As a matter of fact, we will put more
credence or credibility on the private network of volunteers and voluntary
community-based organizations. So I do not think we are afraid that there
will be another OMA in the making.132 (Emphasis supplied)
The imperative of a public consultation, as a species of the right to
information, is evident in the "marching orders" to respondents. The
mechanics for the duty to disclose information and to conduct public
consultation regarding the peace agenda and process is manifestly
provided by E.O. No. 3.133 The preambulatory clause of E.O. No. 3
declares that there is a need to further enhance the contribution of civil
society to the comprehensive peace process by institutionalizing the
people's participation.
One of the three underlying principles of the comprehensive peace
process is that it "should be community-based, reflecting the sentiments,
values and principles important to all Filipinos" and "shall be defined not
by the government alone, nor by the different contending groups only, but
by all Filipinos as one community."134 Included as a component of the
comprehensive peace process is consensus-building and empowerment
for peace, which includes "continuing consultations on both national and
local levels to build consensus for a peace agenda and process, and the
mobilization and facilitation of people's participation in the peace
process."135

Clearly, E.O. No. 3 contemplates not just the conduct of a plebiscite to

effectuate "continuing" consultations, contrary to respondents' position
that plebiscite is "more than sufficient consultation."136
Further, E.O. No. 3 enumerates the functions and responsibilities of the
PAPP, one of which is to "[c]onductregular dialogues with the National
Peace Forum (NPF) and other peace partners to seek relevant
information, comments, recommendations as well as to render
appropriate and timely reports on the progress of the comprehensive
peace process."137 E.O. No. 3 mandates the establishment of the NPF
to be "the principal forumfor the PAPP to consult with and seek advi[c]e
from the peace advocates, peace partners and concerned sectors of
society on both national and local levels, on the implementation of the
comprehensive peace process, as well as for government[-]civil society
dialogue and consensus-building on peace agenda and initiatives."138
In fine, E.O. No. 3 establishes petitioners' right to be consulted on the
peace agenda, as a corollary to the constitutional right to information and
disclosure.

Prior Consultations Required. - No project or program shall be

implemented by government authoritiesunless the consultations
mentioned in Sections 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.143 (Italics and
underscoring supplied)
In Lina, Jr. v. Hon. Pao,144 the Court held that the above-stated policy
and above-quoted provision of the LGU apply only to national programs
or projects which are to be implemented in a particular local community.
Among the programs and projects covered are those that are critical to
the environment and human ecology including those that may call for
the eviction of a particular group of people residing in the locality where
these will be implemented.145 The MOA-AD is one peculiar program that
unequivocally and unilaterally vests ownership of a vast territory to the
Bangsamoro people,146 which could pervasively and drastically result to
the diaspora or displacement of a great number of inhabitants from their
total environment.

PAPP Esperon committed grave abuse of discretion

The PAPP committed grave abuse of discretion when he failed to carry
out the pertinent consultation. The furtive process by which the MOA-AD
was designed and crafted runs contrary to and in excess of the legal
authority, and amounts to a whimsical, capricious, oppressive, arbitrary
and despotic exercise thereof.
The Court may not, of course, require the PAPP to conduct the
consultation in a particular way or manner. It may, however, require him
to comply with the law and discharge the functions within the authority
granted by the President.139
Petitioners are not claiming a seat at the negotiating table, contrary to
respondents' retort in justifying the denial of petitioners' right to be
consulted. Respondents' stance manifests the manner by which they
treat the salient provisions of E.O. No. 3 on people's participation. Such
disregard of the express mandate of the President is not much different
from superficial conduct toward token provisos that border on classic lip
service.140 It illustrates a gross evasion of positive duty and a virtual
refusal to perform the duty enjoined.
As for respondents' invocation of the doctrine of executive privilege, it is
not tenable under the premises. The argument defies sound reason when
contrasted with E.O. No. 3's explicit provisions on continuing consultation
and dialogue on both national and local levels. The executive order even
recognizes the exercise of the public's right even before the GRP makes
its official recommendations or before the government proffers its definite
propositions.141 It bear emphasis that E.O. No. 3 seeks to elicit relevant
advice, information, comments and recommendations from the people
through dialogue.

With respect to the indigenous cultural communities/indigenous peoples

(ICCs/IPs), whose interests are represented herein by petitioner Lopez
and are adversely affected by the MOA-AD, the ICCs/IPs have, under the
IPRA, the right to participate fully at all levels of decision-making in
matters which may affect their rights, lives and destinies.147 The MOAAD, an instrument recognizing ancestral domain, failed to justify its noncompliance with the clear-cut mechanisms ordained in said
Act,148 which entails, among other things, the observance of the free
and prior informed consent of the ICCs/IPs.
Notably, the IPRA does not grant the Executive Department or any
government agency the power to delineate and recognize an ancestral
domain claim by mere agreement or compromise. The recognition of the
ancestral domain is the raison d'etre of the MOA-AD, without which all
other stipulations or "consensus points" necessarily must fail. In
proceeding to make a sweeping declaration on ancestral domain, without
complying with the IPRA, which is cited as one of the TOR of the MOAAD, respondents clearly transcended the boundaries of their authority. As
it seems, even the heart of the MOA-AD is still subject to necessary
changes to the legal framework. While paragraph 7 on Governance
suspends the effectivity of all provisions requiring changes to the legal
framework, such clause is itself invalid, as will be discussed in the
following section.
Indeed, ours is an open society, with all the acts of the government
subject to public scrutiny and available always to public cognizance. This
has to be so if the country is to remain democratic, with sovereignty
residing in the people and all government authority emanating from
them.149
ON THE SECOND SUBSTANTIVE ISSUE

AT ALL EVENTS, respondents effectively waived the defense of

executive privilege in view of their unqualified disclosure of the official
copies of the final draft of the MOA-AD. By unconditionally complying with
the Court's August 4, 2008 Resolution, without a prayer for the
document's disclosure in camera, or without a manifestation that it was
complying therewith ex abundante ad cautelam.
Petitioners' assertion that the Local Government Code (LGC) of 1991
declares it a State policy to "require all national agencies and offices to
conduct periodic consultations with appropriate local government units,
non-governmental and people's organizations, and other concerned
sectors of the community before any project or program is implemented
in their respective jurisdictions"142 is well-taken. The LGC chapter on
intergovernmental relations puts flesh into this avowed policy:

With regard to the provisions of the MOA-AD, there can be no question

that they cannot all be accommodated under the present Constitution and
laws. Respondents have admitted as much in the oral arguments before
this Court, and the MOA-AD itself recognizes the need to amend the
existing legal framework to render effective at least some of its
provisions. Respondents, nonetheless, counter that the MOA-AD is free
of any legal infirmity because any provisions therein which are
inconsistent with the present legal framework will not be effective until the
necessary changes to that framework are made. The validity of this
argument will be considered later. For now, the Court shall pass upon
how
The MOA-AD is inconsistent with the Constitution and laws as presently
worded.

In general, the objections against the MOA-AD center on the extent of the
powers conceded therein to the BJE. Petitioners assert that the powers
granted to the BJE exceed those granted to any local government under
present laws, and even go beyond those of the present ARMM. Before
assessing some of the specific powers that would have been vested in
the BJE, however, it would be useful to turn first to a general idea that
serves as a unifying link to the different provisions of the MOA-AD,
namely, the international law concept of association. Significantly, the
MOA-AD explicitly alludes to this concept, indicating that the Parties
actually framed its provisions with it in mind.
Association is referred to in paragraph 3 on TERRITORY, paragraph 11
on RESOURCES, and paragraph 4 on GOVERNANCE. It is in the last
mentioned provision, however, that the MOA-AD most clearly uses it to
describe theenvisioned relationship between the BJE and the Central
Government.
4. The relationship between the Central Government and the
Bangsamoro juridical entity shall beassociative characterized by shared
authority and responsibility with a structure of governance based on
executive, legislative, judicial and administrative institutions with defined
powers and functions in the comprehensive compact. A period of
transition shall be established in a comprehensive peace compact
specifying the relationship between the Central Government and the BJE.
(Emphasis and underscoring supplied)
The nature of the "associative" relationship may have been intended to
be defined more precisely in the still to be forged Comprehensive
Compact. Nonetheless, given that there is a concept of "association" in
international law, and the MOA-AD - by its inclusion of international law
instruments in its TOR- placed itself in an international legal context, that
concept of association may be brought to bear in understanding the use
of the term "associative" in the MOA-AD.

It bears noting that in U.S. constitutional and international practice, free

association is understood as an international association between
sovereigns. The Compact of Free Association is a treaty which is
subordinate to the associated nation's national constitution, and each
party may terminate the association consistent with the right of
independence. It has been said that, with the admission of the U.S.associated states to the UN in 1990, the UN recognized that the
American model of free association is actually based on an underlying
status of independence.152
In international practice, the "associated state" arrangement has usually
been used as a transitional device of former colonies on their way to full
independence. Examples of states that have passed through the status of
associated states as a transitional phase are Antigua, St. Kitts-NevisAnguilla, Dominica, St. Lucia, St. Vincent and Grenada. All have since
become independent states.153
Back to the MOA-AD, it contains many provisions which are consistent
with the international legal concept ofassociation, specifically the
following: the BJE's capacity to enter into economic and trade relations
with foreign countries, the commitment of the Central Government to
ensure the BJE's participation in meetings and events in the ASEAN and
the specialized UN agencies, and the continuing responsibility of the
Central Government over external defense. Moreover, the BJE's right to
participate in Philippine official missions bearing on negotiation of border
agreements, environmental protection, and sharing of revenues
pertaining to the bodies of water adjacent to or between the islands
forming part of the ancestral domain, resembles the right of the
governments of FSM and the Marshall Islands to be consulted by the
U.S. government on any foreign affairs matter affecting them.
These provisions of the MOA indicate, among other things, that the
Parties aimed to vest in the BJE the status of an associated state or, at
any rate, a status closely approximating it.

Keitner and Reisman state that

[a]n association is formed when two states of unequal power voluntarily
establish durable links. In the basic model, one state, the associate,
delegates certain responsibilities to the other, the principal, while
maintaining its international status as a state. Free associations represent
a middle ground between integration and independence. x x
x150 (Emphasis and underscoring supplied)
For purposes of illustration, the Republic of the Marshall Islands and the
Federated States of Micronesia (FSM), formerly part of the U.S.administered Trust Territory of the Pacific Islands,151 are associated
states of the U.S. pursuant to a Compact of Free Association. The
currency in these countries is the U.S. dollar, indicating their very close
ties with the U.S., yet they issue their own travel documents, which is a
mark of their statehood. Their international legal status as states was
confirmed by the UN Security Council and by their admission to UN
membership.
According to their compacts of free association, the Marshall Islands and
the FSM generally have the capacity to conduct foreign affairs in their
own name and right, such capacity extending to matters such as the law
of the sea, marine resources, trade, banking, postal, civil aviation, and
cultural relations. The U.S. government, when conducting its foreign
affairs, is obligated to consult with the governments of the Marshall
Islands or the FSM on matters which it (U.S. government) regards as
relating to or affecting either government.
In the event of attacks or threats against the Marshall Islands or the FSM,
the U.S. government has the authority and obligation to defend them as if
they were part of U.S. territory. The U.S. government, moreover, has the
option of establishing and using military areas and facilities within these
associated states and has the right to bar the military personnel of any
third country from having access to these territories for military purposes.

The concept of association is not recognized under the present

Constitution
No province, city, or municipality, not even the ARMM, is recognized
under our laws as having an "associative" relationship with the national
government. Indeed, the concept implies powers that go beyond anything
ever granted by the Constitution to any local or regional government. It
also implies the recognition of the associated entity as a state. The
Constitution, however, does not contemplate any state in this jurisdiction
other than the Philippine State, much less does it provide for a transitory
status that aims to prepare any part of Philippine territory for
independence.
Even the mere concept animating many of the MOA-AD's provisions,
therefore, already requires for its validity the amendment of constitutional
provisions, specifically the following provisions of Article X:
SECTION 1. The territorial and political subdivisions of the Republic of
the Philippines are the provinces, cities, municipalities, and barangays.
There shall be autonomous regions in Muslim Mindanao and the
Cordilleras as hereinafter provided.
SECTION 15. There shall be created autonomous regions in Muslim
Mindanao and in the Cordilleras consisting of provinces, cities,
municipalities, and geographical areas sharing common and distinctive
historical and cultural heritage, economic and social structures, and other
relevant characteristics within the framework of this Constitution and the
national sovereignty as well as territorial integrity of the Republic of the
Philippines.
The BJE is a far more powerful
entity than the autonomous region
recognized in the Constitution

It is not merely an expanded version of the ARMM, the status of its

relationship with the national government being fundamentally different
from that of the ARMM. Indeed, BJE is a state in all but name as it meets
the criteria of a state laid down in the Montevideo
Convention,154 namely, a permanent population, a defined territory,
a government, and a capacity to enter into relations with other states.
Even assuming arguendo that the MOA-AD would not necessarily sever
any portion of Philippine territory, the spirit animating it - which has
betrayed itself by its use of the concept of association - runs counter to
the national sovereignty and territorial integrity of the Republic.
The defining concept underlying the relationship between the national
government and the BJE being itself contrary to the present Constitution,
it is not surprising that many of the specific provisions of the MOA-AD on
the formation and powers of the BJE are in conflict with the Constitution
and the laws.
Article X, Section 18 of the Constitution provides that "[t]he creation of the
autonomous region shall be effective when approved by a majority of the
votes cast by the constituent units in a plebiscite called for the purpose,
provided that only provinces, cities, and geographic areas voting
favorably in such plebiscite shall be included in the autonomous region."
(Emphasis supplied)
As reflected above, the BJE is more of a state than an autonomous
region. But even assuming that it is covered by the term "autonomous
region" in the constitutional provision just quoted, the MOA-AD would still
be in conflict with it. Under paragraph 2(c) on TERRITORY in relation to
2(d) and 2(e), the present geographic area of the ARMM and, in addition,
the municipalities of Lanao del Norte which voted for inclusion in the
ARMM during the 2001 plebiscite - Baloi, Munai, Nunungan, Pantar,
Tagoloan and Tangkal - are automatically part of the BJE without need of
another plebiscite, in contrast to the areas under Categories A and B
mentioned earlier in the overview. That the present components of the
ARMM and the above-mentioned municipalities voted for inclusion
therein in 2001, however, does not render another plebiscite unnecessary
under the Constitution, precisely because what these areas voted for
then was their inclusion in the ARMM, not the BJE.
The MOA-AD, moreover, would not
comply with Article X, Section 20 of
the Constitution
since that provision defines the powers of autonomous regions as
follows:
SECTION 20. Within its territorial jurisdiction and subject to the provisions
of this Constitution and national laws, the organic act of autonomous
regions shall provide for legislative powers over:
(1) Administrative organization;
(2) Creation of sources of revenues;

Again on the premise that the BJE may be regarded as an autonomous

region, the MOA-AD would require an amendment that would expand the
above-quoted provision. The mere passage of new legislation pursuant to
sub-paragraph No. 9 of said constitutional provision would not suffice,
since any new law that might vest in the BJE the powers found in the
MOA-AD must, itself, comply with other provisions of the Constitution. It
would not do, for instance, to merely pass legislation vesting the BJE with
treaty-making power in order to accommodate paragraph 4 of the strand
on RESOURCES which states: "The BJE is free to enter into any
economic cooperation and trade relations with foreign countries:
provided, however, that such relationships and understandings do not
include aggression against the Government of the Republic of the
Philippines x x x." Under our constitutional system, it is only the President
who has that power. Pimentel v. Executive Secretary155 instructs:
In our system of government, the President, being the head of state, is
regarded as the sole organ and authority in external relations and is the
country's sole representative with foreign nations. As the chief architect of
foreign policy, the President acts as the country's mouthpiece with
respect to international affairs. Hence, the President is vested with the
authority to deal with foreign states and governments, extend or withhold
recognition, maintain diplomatic relations, enter into treaties, and
otherwise transact the business of foreign relations. In the realm of treatymaking, the President has the sole authority to negotiate with other
states. (Emphasis and underscoring supplied)
Article II, Section 22 of the Constitution must also be amended if the
scheme envisioned in the MOA-AD is to be effected. That constitutional
provision states: "The State recognizes and promotes the rights
ofindigenous cultural communities within the framework of national
unity and development." (Underscoring
supplied)An associative arrangement does not uphold national unity.
While there may be a semblance of unity because of the associative ties
between the BJE and the national government, the act of placing a
portion of Philippine territory in a status which, in international practice,
has generally been a preparation for independence, is certainly not
conducive to national unity.
Besides being irreconcilable with the Constitution, the MOA-AD is
also inconsistent with prevailing statutory law, among which are R.A. No.
9054156 or the Organic Act of the ARMM, and the IPRA.157
Article X, Section 3 of the Organic Act of the ARMM is a bar to the
adoption of the definition of "Bangsamoro people" used in the MOA-AD.
Paragraph 1 on Concepts and Principles states:
1. It is the birthright of all Moros and all Indigenous peoples of
Mindanao to identify themselves and be accepted as
"Bangsamoros". The Bangsamoro people refers to those who are natives
or original inhabitants of Mindanao and its adjacent islands including
Palawan and the Sulu archipelago at the time of conquest or colonization
of its descendants whether mixed or of full blood. Spouses and their
descendants are classified as Bangsamoro. The freedom of choice of the
Indigenous people shall be respected. (Emphasis and underscoring
supplied)

(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. (Underscoring supplied)

This use of the term Bangsamoro sharply contrasts with that found in
the Article X, Section 3 of the Organic Act, which, rather than lumping
together the identities of the Bangsamoro and other indigenous peoples
living in Mindanao, clearly distinguishes between Bangsamoro people
and Tribal peoples, as follows:
"As used in this Organic Act, the phrase "indigenous cultural community"
refers to Filipino citizens residing in the autonomous region who are:
(a) Tribal peoples. These are citizens whose social, cultural and
economic conditions distinguish them from other sectors of the national
community; and

(b) Bangsa Moro people. These are citizens who are believers in
Islam and who have retained some or all of their own social, economic,
cultural, and political institutions."
Respecting the IPRA, it lays down the prevailing procedure for the
delineation and recognition of ancestral domains. The MOA-AD's manner
of delineating the ancestral domain of the Bangsamoro people is a clear
departure from that procedure. By paragraph 1 of Territory, the Parties
simply agree that, subject to the delimitations in the agreed Schedules,
"[t]he Bangsamoro homeland and historic territory refer to the land mass
as well as the maritime, terrestrial, fluvial and alluvial domains, and the
aerial domain, the atmospheric space above it, embracing the MindanaoSulu-Palawan geographic region."
Chapter VIII of the IPRA, on the other hand, lays down a detailed
procedure, as illustrated in the following provisions thereof:
SECTION 52. Delineation Process. - The identification and delineation of
ancestral domains shall be done in accordance with the following
procedures:
xxxx
b) Petition for Delineation. - The process of delineating a specific
perimeter may be initiated by the NCIP with the consent of the ICC/IP
concerned, or through a Petition for Delineation filed with the NCIP, by a
majority of the members of the ICCs/IPs;
c) Delineation Proper. - The official delineation of ancestral domain
boundaries including census of all community members therein, shall be
immediately undertaken by the Ancestral Domains Office upon filing of
the application by the ICCs/IPs concerned. Delineation will be done in
coordination with the community concerned and shall at all times include
genuine involvement and participation by the members of the
communities concerned;

shall prepare a perimeter map, complete with technical descriptions, and

a description of the natural features and landmarks embraced therein;
f) Report of Investigation and Other Documents. - A complete copy of the
preliminary census and a report of investigation, shall be prepared by the
Ancestral Domains Office of the NCIP;
g) Notice and Publication. - A copy of each document, including a
translation in the native language of the ICCs/IPs concerned shall be
posted in a prominent place therein for at least fifteen (15) days. A copy
of the document shall also be posted at the local, provincial and regional
offices of the NCIP, and shall be published in a newspaper of general
circulation once a week for two (2) consecutive weeks to allow other
claimants to file opposition thereto within fifteen (15) days from date of
such publication: Provided, That in areas where no such newspaper
exists, broadcasting in a radio station will be a valid substitute: Provided,
further, That mere posting shall be deemed sufficient if both newspaper
and radio station are not available;
h) Endorsement to NCIP. - Within fifteen (15) days from publication, and
of the inspection process, the Ancestral Domains Office shall prepare a
report to the NCIP endorsing a favorable action upon a claim that is
deemed to have sufficient proof. However, if the proof is deemed
insufficient, the Ancestral Domains Office shall require the submission of
additional evidence: Provided, That the Ancestral Domains Office shall
reject any claim that is deemed patently false or fraudulent after
inspection and verification: Provided, further, That in case of rejection, the
Ancestral Domains Office shall give the applicant due notice, copy
furnished all concerned, containing the grounds for denial. The denial
shall be appealable to the NCIP: Provided, furthermore, That in cases
where there are conflicting claims among ICCs/IPs on the boundaries of
ancestral domain claims, the Ancestral Domains Office shall cause the
contending parties to meet and assist them in coming up with a
preliminary resolution of the conflict, without prejudice to its full
adjudication according to the section below.

d) Proof Required. - Proof of Ancestral Domain Claims shall include the

testimony of elders or community under oath, and other documents
directly or indirectly attesting to the possession or occupation of the area
since time immemorial by such ICCs/IPs in the concept of owners which
shall be any one (1) of the following authentic documents:

xxxx

1) Written accounts of the ICCs/IPs customs and traditions;

Article II, Section 2 of the Constitution states that the Philippines "adopts
the generally accepted principles of international law as part of the law of
the land."

2) Written accounts of the ICCs/IPs political structure and institution;

3) Pictures showing long term occupation such as those of old
improvements, burial grounds, sacred places and old villages;
4) Historical accounts, including pacts and agreements concerning
boundaries entered into by the ICCs/IPs concerned with other ICCs/IPs;
5) Survey plans and sketch maps;
6) Anthropological data;
7) Genealogical surveys;
8) Pictures and descriptive histories of traditional communal forests and
hunting grounds;
9) Pictures and descriptive histories of traditional landmarks such as
mountains, rivers, creeks, ridges, hills, terraces and the like; and
10) Write-ups of names and places derived from the native dialect of the
community.
e) Preparation of Maps. - On the basis of such investigation and the
findings of fact based thereon, the Ancestral Domains Office of the NCIP

To remove all doubts about the irreconcilability of the MOA-AD with the
present legal system, a discussion of not only the Constitution and
domestic statutes, but also of international law is in order, for

Applying this provision of the Constitution, the Court, in Mejoff v. Director

of Prisons,158 held that the Universal Declaration of Human Rights is
part of the law of the land on account of which it ordered the release on
bail of a detained alien of Russian descent whose deportation order had
not been executed even after two years. Similarly, the Court in Agustin v.
Edu159 applied the aforesaid constitutional provision to the 1968 Vienna
Convention on Road Signs and Signals.
International law has long recognized the right to self-determination of
"peoples," understood not merely as the entire population of a State but
also a portion thereof. In considering the question of whether the people
of Quebec had a right to unilaterally secede from Canada, the Canadian
Supreme Court in REFERENCE RE SECESSION OF QUEBEC160 had
occasion to acknowledge that "the right of a people to self-determination
is now so widely recognized in international conventions that the principle
has acquired a status beyond convention' and is considered a general
principle of international law."
Among the conventions referred to are the International Covenant on
Civil and Political Rights161 and the International Covenant on
Economic, Social and Cultural Rights162 which state, in Article 1 of both
covenants, that all peoples, by virtue of the right of self-determination,

"freely determine their political status and freely pursue their economic,
social, and cultural development."
The people's right to self-determination should not, however, be
understood as extending to a unilateral right of secession. A distinction
should be made between the right of internal and external selfdetermination. REFERENCE RE SECESSION OF QUEBEC is again
instructive:
"(ii) Scope of the Right to Self-determination
126. The recognized sources of international law establish that the right
to self-determination of a people is normally fulfilled through internal selfdetermination - a people's pursuit of its political, economic, social and
cultural development within the framework of an existing state. A right
toexternal self-determination (which in this case potentially takes the form
of the assertion of a right to unilateral secession) arises in only the most
extreme of cases and, even then, under carefully defined
circumstances. x x x
External self-determination can be defined as in the following statement
from the Declaration on Friendly Relations, supra, as
The establishment of a sovereign and independent State, the free
association or integration with an independent State or the emergence
into any other political status freely determined by apeople constitute
modes of implementing the right of self-determination by that people.
(Emphasis added)
127. The international law principle of self-determination has evolved
within a framework of respect for the territorial integrity of existing
states. The various international documents that support the existence of
a people's right to self-determination also contain parallel statements
supportive of the conclusion that the exercise of such a right must be
sufficiently limited to prevent threats to an existing state's territorial
integrity or the stability of relations between sovereign states.
x x x x (Emphasis, italics and underscoring supplied)
The Canadian Court went on to discuss the exceptional cases in which
the right to external self-determination can arise, namely, where a people
is under colonial rule, is subject to foreign domination or exploitation
outside a colonial context, and - less definitely but asserted by a number
of commentators - is blocked from the meaningful exercise of its right to
internal self-determination. The Court ultimately held that the population
of Quebec had no right to secession, as the same is not under colonial
rule or foreign domination, nor is it being deprived of the freedom to make
political choices and pursue economic, social and cultural development,
citing that Quebec is equitably represented in legislative, executive and
judicial institutions within Canada, even occupying prominent positions
therein.
The exceptional nature of the right of secession is further exemplified in
the REPORT OF THE INTERNATIONAL COMMITTEE OF JURISTS ON
THE LEGAL ASPECTS OF THE AALAND ISLANDS
QUESTION.163 There, Sweden presented to the Council of the League
of Nations the question of whether the inhabitants of the Aaland Islands
should be authorized to determine by plebiscite if the archipelago should
remain under Finnish sovereignty or be incorporated in the kingdom of
Sweden. The Council, before resolving the question, appointed an
International Committee composed of three jurists to submit an opinion
on the preliminary issue of whether the dispute should, based on
international law, be entirely left to the domestic jurisdiction of Finland.
The Committee stated the rule as follows:
x x x [I]n the absence of express provisions in international treaties, the
right of disposing of national territory is essentially an attribute of the
sovereignty of every State. Positive International Law does not recognize

the right of national groups, as such, to separate themselves from the

State of which they form part by the simple expression of a wish, any
more than it recognizes the right of other States to claim such a
separation. Generally speaking, the grant or refusal of the right to a
portion of its population of determining its own political fate by plebiscite
or by some other method, is, exclusively, an attribute of the sovereignty
of every State which is definitively constituted. A dispute between two
States concerning such a question, under normal conditions therefore,
bears upon a question which International Law leaves entirely to the
domestic jurisdiction of one of the States concerned. Any other solution
would amount to an infringement of sovereign rights of a State and would
involve the risk of creating difficulties and a lack of stability which would
not only be contrary to the very idea embodied in term "State," but would
also endanger the interests of the international community. If this right is
not possessed by a large or small section of a nation, neither can it be
held by the State to which the national group wishes to be attached, nor
by any other State. (Emphasis and underscoring supplied)
The Committee held that the dispute concerning the Aaland Islands did
not refer to a question which is left by international law to the domestic
jurisdiction of Finland, thereby applying the exception rather than the rule
elucidated above. Its ground for departing from the general rule, however,
was a very narrow one, namely, the Aaland Islands agitation originated at
a time when Finland was undergoing drastic political transformation. The
internal situation of Finland was, according to the Committee, so
abnormal that, for a considerable time, the conditions required for the
formation of a sovereign State did not exist. In the midst of revolution,
anarchy, and civil war, the legitimacy of the Finnish national government
was disputed by a large section of the people, and it had, in fact, been
chased from the capital and forcibly prevented from carrying out its
duties. The armed camps and the police were divided into two opposing
forces. In light of these circumstances, Finland was not, during the
relevant time period, a "definitively constituted" sovereign state. The
Committee, therefore, found that Finland did not possess the right to
withhold from a portion of its population the option to separate itself - a
right which sovereign nations generally have with respect to their own
populations.
Turning now to the more specific category of indigenous peoples, this
term has been used, in scholarship as well as international, regional, and
state practices, to refer to groups with distinct cultures, histories, and
connections to land (spiritual and otherwise) that have been forcibly
incorporated into a larger governing society. These groups are regarded
as "indigenous" since they are the living descendants of pre-invasion
inhabitants of lands now dominated by others. Otherwise stated,
indigenous peoples, nations, or communities are culturally distinctive
groups that find themselves engulfed by settler societies born of the
forces of empire and conquest.164 Examples of groups who have been
regarded as indigenous peoples are the Maori of New Zealand and the
aboriginal peoples of Canada.
As with the broader category of "peoples," indigenous peoples situated
within states do not have a general right to independence or secession
from those states under international law,165 but they do have rights
amounting to what was discussed above as the right to internal selfdetermination.
In a historic development last September 13, 2007, the UN General
Assembly adopted the United Nations Declaration on the Rights of
Indigenous Peoples (UN DRIP) through General Assembly Resolution
61/295. The vote was 143 to 4, the Philippines being included among
those in favor, and the four voting against being Australia, Canada, New
Zealand, and the U.S. The Declaration clearly recognized the right of
indigenous peoples to self-determination, encompassing the right to
autonomy or self-government, to wit:
Article 3

Indigenous peoples have the right to self-determination. By virtue of that

right they freely determine their political status and freely pursue their
economic, social and cultural development.

3. States shall give legal recognition and protection to these lands,

territories and resources. Such recognition shall be conducted with due
respect to the customs, traditions and land tenure systems of the
indigenous peoples concerned.

Article 4
Article 30
Indigenous peoples, in exercising their right to self-determination,
have the right to autonomy or self-government in matters relating to
their internal and local affairs, as well as ways and means for financing
their autonomous functions.

1. Military activities shall not take place in the lands or territories of

indigenous peoples, unless justified by a relevant public interest or
otherwise freely agreed with or requested by the indigenous peoples
concerned.

Article 5
Indigenous peoples have the right to maintain and strengthen their
distinct political, legal, economic, social and cultural institutions, while
retaining their right to participate fully, if they so choose, in the political,
economic, social and cultural life of the State.

2. States shall undertake effective consultations with the indigenous

peoples concerned, through appropriate procedures and in particular
through their representative institutions, prior to using their lands or
territories for military activities.
Article 32

Self-government, as used in international legal discourse pertaining to

indigenous peoples, has been understood as equivalent to "internal selfdetermination."166 The extent of self-determination provided for in the
UN DRIP is more particularly defined in its subsequent articles, some of
which are quoted hereunder:
Article 8
1. Indigenous peoples and individuals have the right not to be subjected
to forced assimilation or destruction of their culture.
2. States shall provide effective mechanisms for prevention of, and
redress for:
(a) Any action which has the aim or effect of depriving them of their
integrity as distinct peoples, or of their cultural values or ethnic identities;

1. Indigenous peoples have the right to determine and develop priorities

and strategies for the development or use of their lands or territories and
other resources.
2. States shall consult and cooperate in good faith with the indigenous
peoples concerned through their own representative institutions in order
to obtain their free and informed consent prior to the approval of any
project affecting their lands or territories and other resources, particularly
in connection with the development, utilization or exploitation of mineral,
water or other resources.
3. States shall provide effective mechanisms for just and fair redress for
any such activities, and appropriate measures shall be taken to mitigate
adverse environmental, economic, social, cultural or spiritual impact.
Article 37

(b) Any action which has the aim or effect of dispossessing them of their
lands, territories or resources;
(c) Any form of forced population transfer which has the aim or effect of
violating or undermining any of their rights;

1. Indigenous peoples have the right to the recognition, observance and

enforcement of treaties, agreements and other constructive
arrangements concluded with States or their successors and to have
States honour and respect such treaties, agreements and other
constructive arrangements.

(d) Any form of forced assimilation or integration;

(e) Any form of propaganda designed to promote or incite racial or ethnic
discrimination directed against them.

2. Nothing in this Declaration may be interpreted as diminishing or

eliminating the rights of indigenous peoples contained in treaties,
agreements and other constructive arrangements.

Article 21

Article 38

1. Indigenous peoples have the right, without discrimination, to the

improvement of their economic and social conditions, including, inter alia,
in the areas of education, employment, vocational training and retraining,
housing, sanitation, health and social security.

States in consultation and cooperation with indigenous peoples, shall

take the appropriate measures, including legislative measures, to achieve
the ends of this Declaration.

2. States shall take effective measures and, where appropriate, special

measures to ensure continuing improvement of their economic and social
conditions. Particular attention shall be paid to the rights and special
needs of indigenous elders, women, youth, children and persons with
disabilities.
Article 26
1. Indigenous peoples have the right to the lands, territories and
resources which they have traditionally owned, occupied or otherwise
used or acquired.
2. Indigenous peoples have the right to own, use, develop and control the
lands, territories and resources that they possess by reason of traditional
ownership or other traditional occupation or use, as well as those which
they have otherwise acquired.

Assuming that the UN DRIP, like the Universal Declaration on Human

Rights, must now be regarded as embodying customary international law
- a question which the Court need not definitively resolve here - the
obligations enumerated therein do not strictly require the Republic to
grant the Bangsamoro people, through the instrumentality of the BJE, the
particular rights and powers provided for in the MOA-AD. Even the more
specific provisions of the UN DRIP are general in scope, allowing for
flexibility in its application by the different States.
There is, for instance, no requirement in the UN DRIP that States now
guarantee indigenous peoples their own police and internal security
force. Indeed, Article 8 presupposes that it is the State which will provide
protection for indigenous peoples against acts like the forced
dispossession of their lands - a function that is normally performed by
police officers. If the protection of a right so essential to indigenous
people's identity is acknowledged to be the responsibility of the State,

then surely the protection of rights less significant to them as such

peoples would also be the duty of States. Nor is there in the UN DRIP an
acknowledgement of the right of indigenous peoples to the aerial domain
and atmospheric space. What it upholds, in Article 26 thereof, is the right
of indigenous peoples to the lands, territories and resources which they
have traditionally owned, occupied or otherwise used or acquired.
Moreover, the UN DRIP, while upholding the right of indigenous peoples
to autonomy, does not obligate States to grant indigenous peoples the
near-independent status of an associated state. All the rights recognized
in that document are qualified in Article 46 as follows:
1. Nothing in this Declaration may be interpreted as implying for any
State, people, group or person any right to engage in any activity or to
perform any act contrary to the Charter of the United Nations orconstrued
as authorizing or encouraging any action which would dismember or
impair, totally or in part, the territorial integrity or political unity of
sovereign and independent States.
Even if the UN DRIP were considered as part of the law of the land
pursuant to Article II, Section 2 of the Constitution, it would not suffice to
uphold the validity of the MOA-AD so as to render its compliance with
other laws unnecessary.
It is, therefore, clear that the MOA-AD contains numerous provisions that
cannot be reconciled with the Constitution and the laws as presently
worded. Respondents proffer, however, that the signing of the MOA-AD
alone would not have entailed any violation of law or grave abuse of
discretion on their part, precisely because it stipulates that the provisions
thereof inconsistent with the laws shall not take effect until these laws are
amended. They cite paragraph 7 of the MOA-AD strand on
GOVERNANCE quoted earlier, but which is reproduced below for
convenience:
7. The Parties agree that the mechanisms and modalities for the actual
implementation of this MOA-AD shall be spelt out in the Comprehensive
Compact to mutually take such steps to enable it to occur effectively.
Any provisions of the MOA-AD requiring amendments to the existing
legal framework shall come into force upon signing of a Comprehensive
Compact and upon effecting the necessary changes to the legal
framework with due regard to non derogation of prior agreements and
within the stipulated timeframe to be contained in the Comprehensive
Compact.
Indeed, the foregoing stipulation keeps many controversial provisions of
the MOA-AD from coming into force until the necessary changes to the
legal framework are effected. While the word "Constitution" is not
mentioned in the provision now under consideration or anywhere else in
the MOA-AD, the term "legal framework" is certainly broad enough to
include the Constitution.
Notwithstanding the suspensive clause, however, respondents, by their
mere act of incorporating in the MOA-AD the provisions thereof regarding
the associative relationship between the BJE and the Central
Government, have already violated the Memorandum of Instructions
From The President dated March 1, 2001, which states that the
"negotiations shall be conducted in accordance with x x x the principles of
the sovereignty and territorial integrity of the Republic of the Philippines."
(Emphasis supplied) Establishing an associative relationship between the
BJE and the Central Government is, for the reasons already discussed, a
preparation for independence, or worse, an implicit acknowledgment of
an independent status already prevailing.
Even apart from the above-mentioned Memorandum, however, the MOAAD is defective because the suspensive clause is invalid, as discussed
below.

The authority of the GRP Peace Negotiating Panel to negotiate with the
MILF is founded on E.O. No. 3, Section 5(c), which states that there shall
be established Government Peace Negotiating Panels for negotiations
with different rebel groups to be "appointed by the President as her
official emissaries to conduct negotiations, dialogues, and face-to-face
discussions with rebel groups." These negotiating panels are to report to
the President, through the PAPP on the conduct and progress of the
negotiations.
It bears noting that the GRP Peace Panel, in exploring lasting solutions to
the Moro Problem through its negotiations with the MILF, was not
restricted by E.O. No. 3 only to those options available under the laws as
they presently stand. One of the components of a comprehensive peace
process, which E.O. No. 3 collectively refers to as the "Paths to Peace,"
is the pursuit of social, economic, and political reforms which may require
new legislation or even constitutional amendments. Sec. 4(a) of E.O. No.
3, which reiterates Section 3(a), of E.O. No. 125,167states:
SECTION 4. The Six Paths to Peace. - The components of the
comprehensive peace process comprise the processes known as the
"Paths to Peace". These component processes are interrelated and not
mutually exclusive, and must therefore be pursued simultaneously in a
coordinated and integrated fashion. They shall include, but may not be
limited to, the following:
a. PURSUIT OF SOCIAL, ECONOMIC AND POLITICAL REFORMS.
This component involves the vigorous implementation of various
policies, reforms, programs and projects aimed at addressing the root
causes of internal armed conflicts and social unrest. This may require
administrative action, new legislation or even constitutional amendments.
x x x x (Emphasis supplied)
The MOA-AD, therefore, may reasonably be perceived as an attempt of
respondents to address, pursuant to this provision of E.O. No. 3, the root
causes of the armed conflict in Mindanao. The E.O. authorized them to
"think outside the box," so to speak. Hence, they negotiated and were set
on signing the MOA-AD that included various social, economic, and
political reforms which cannot, however, all be accommodated within the
present legal framework, and which thus would require new legislation
and constitutional amendments.
The inquiry on the legality of the "suspensive clause," however, cannot
stop here, because it must be askedwhether the President herself may
exercise the power delegated to the GRP Peace Panel under E.O. No. 3,
Sec. 4(a).
The President cannot delegate a power that she herself does not
possess. May the President, in the course of peace negotiations, agree to
pursue reforms that would require new legislation and constitutional
amendments, or should the reforms be restricted only to those solutions
which the present laws allow? The answer to this question requires a
discussion of the extent of the President's power to conduct peace
negotiations.
That the authority of the President to conduct peace negotiations with
rebel groups is not explicitly mentioned in the Constitution does not mean
that she has no such authority. In Sanlakas v. Executive Secretary,168 in
issue was the authority of the President to declare a state of rebellion - an
authority which is not expressly provided for in the Constitution. The
Court held thus:
"In her ponencia in Marcos v. Manglapus, Justice Cortes put her thesis
into jurisprudence. There, the Court, by a slim 8-7 margin, upheld the
President's power to forbid the return of her exiled predecessor. The
rationale for the majority's ruling rested on the President's

. . . unstated residual powers which are implied from the grant of

executive power and which are necessary for her to comply with her
duties under the Constitution. The powers of the President are not limited
to what are expressly enumerated in the article on the Executive
Department and in scattered provisions of the Constitution. This is so,
notwithstanding the avowed intent of the members of the Constitutional
Commission of 1986 to limit the powers of the President as a reaction to
the abuses under the regime of Mr. Marcos, for the result was a limitation
of specific powers of the President, particularly those relating to the
commander-in-chief clause, but not a diminution of the general grant of
executive power.

great deal of the problems. So, my question is: since that already exists,
why do we have to go into something new?

Thus, the President's authority to declare a state of rebellion springs in

the main from her powers as chief executive and, at the same time,
draws strength from her Commander-in-Chief powers. x x x (Emphasis
and underscoring supplied)

The constitutional provisions on autonomy and the statutes enacted

pursuant to them have, to the credit of their drafters, been partly
successful. Nonetheless, the Filipino people are still faced with the reality
of an on-going conflict between the Government and the MILF. If the
President is to be expected to find means for bringing this conflict to an
end and to achieve lasting peace in Mindanao, then she must be given
the leeway to explore, in the course of peace negotiations, solutions that
may require changes to the Constitution for their implementation. Being
uniquely vested with the power to conduct peace negotiations with rebel
groups, the President is in a singular position to know the precise nature
of their grievances which, if resolved, may bring an end to hostilities.

Similarly, the President's power to conduct peace negotiations is implicitly

included in her powers as Chief Executive and Commander-in-Chief. As
Chief Executive, the President has the general responsibility to promote
public peace, and as Commander-in-Chief, she has the more specific
duty to prevent and suppress rebellion and lawless violence.169
As the experience of nations which have similarly gone through internal
armed conflict will show, however, peace is rarely attained by simply
pursuing a military solution. Oftentimes, changes as far-reaching as a
fundamental reconfiguration of the nation's constitutional structure is
required. The observations of Dr. Kirsti Samuels are enlightening, to wit:
x x x [T]he fact remains that a successful political and governance
transition must form the core of any post-conflict peace-building mission.
As we have observed in Liberia and Haiti over the last ten years, conflict
cessation without modification of the political environment, even where
state-building is undertaken through technical electoral assistance and
institution- or capacity-building, is unlikely to succeed. On average, more
than 50 percent of states emerging from conflict return to conflict.
Moreover, a substantial proportion of transitions have resulted in weak or
limited democracies.
The design of a constitution and its constitution-making process can play
an important role in the political and governance transition. Constitutionmaking after conflict is an opportunity to create a common vision of the
future of a state and a road map on how to get there. The constitution can
be partly a peace agreement and partly a framework setting up the rules
by which the new democracy will operate.170
In the same vein, Professor Christine Bell, in her article on the nature and
legal status of peace agreements, observed that the typical way that
peace agreements establish or confirm mechanisms for demilitarization
and demobilization is by linking them to new constitutional
structures addressing governance, elections, and legal and human rights
institutions.171
In the Philippine experience, the link between peace agreements and
constitution-making has been recognized by no less than the framers of
the Constitution. Behind the provisions of the Constitution on autonomous
regions172is the framers' intention to implement a particular peace
agreement, namely, the Tripoli Agreement of 1976 between the GRP and
the MNLF, signed by then Undersecretary of National Defense Carmelo
Z. Barbero and then MNLF Chairman Nur Misuari.
MR. ROMULO. There are other speakers; so, although I have some more
questions, I will reserve my right to ask them if they are not covered by
the other speakers. I have only two questions.
I heard one of the Commissioners say that local autonomy already exists
in the Muslim region; it is working very well; it has, in fact, diminished a

MR. OPLE. May I answer that on behalf of Chairman Nolledo.

Commissioner Yusup Abubakar is right thatcertain definite steps have
been taken to implement the provisions of the Tripoli Agreement with
respect to an autonomous region in Mindanao. This is a good first step,
but there is no question that this is merely a partial response to the Tripoli
Agreement itself and to the fuller standard of regional autonomy
contemplated in that agreement, and now by state policy.173(Emphasis
supplied)

The President may not, of course, unilaterally implement the solutions

that she considers viable, but she may not be prevented from submitting
them as recommendations to Congress, which could then, if it is minded,
act upon them pursuant to the legal procedures for constitutional
amendment and revision. In particular, Congress would have the option,
pursuant to Article XVII, Sections 1 and 3 of the Constitution, to propose
the recommended amendments or revision to the people, call a
constitutional convention, or submit to the electorate the question of
calling such a convention.
While the President does not possess constituent powers - as those
powers may be exercised only by Congress, a Constitutional Convention,
or the people through initiative and referendum - she may submit
proposals for constitutional change to Congress in a manner that does
not involve the arrogation of constituent powers.
In Sanidad v. COMELEC,174 in issue was the legality of then President
Marcos' act of directly submitting proposals for constitutional
amendments to a referendum, bypassing the interim National Assembly
which was the body vested by the 1973 Constitution with the power to
propose such amendments. President Marcos, it will be recalled, never
convened the interim National Assembly. The majority upheld the
President's act, holding that "the urges of absolute necessity" compelled
the President as the agent of the people to act as he did, there being no
interim National Assembly to propose constitutional amendments.
Against this ruling, Justices Teehankee and Muoz Palma vigorously
dissented. The Court's concern at present, however, is not with regard to
the point on which it was then divided in that controversial case, but on
that which was not disputed by either side.
Justice Teehankee's dissent,175 in particular, bears noting. While he
disagreed that the President may directly submit proposed constitutional
amendments to a referendum, implicit in his opinion is a recognition that
he would have upheld the President's action along with the majority had
the President convened the interim National Assembly and coursed his
proposals through it. Thus Justice Teehankee opined:
"Since the Constitution provides for the organization of the essential
departments of government, defines and delimits the powers of each and
prescribes the manner of the exercise of such powers, and the
constituent power has not been granted to but has been withheld from
the President or Prime Minister, it follows that the President's questioned
decrees proposing and submitting constitutional amendments directly to
the people (without the intervention of the interim National Assembly in

whom the power is expressly vested) are devoid of constitutional and

legal basis."176 (Emphasis supplied)
From the foregoing discussion, the principle may be inferred that the
President - in the course of conducting peace negotiations - may validly
consider implementing even those policies that require changes to the
Constitution, but she may not unilaterally implement them without the
intervention of Congress, or act in any way as if the assent of that body
were assumed as a certainty.
Since, under the present Constitution, the people also have the power to
directly propose amendments through initiative and referendum, the
President may also submit her recommendations to the people, not as a
formal proposal to be voted on in a plebiscite similar to what President
Marcos did in Sanidad, but for their independent consideration of whether
these recommendations merit being formally proposed through initiative.
These recommendations, however, may amount to nothing more than the
President's suggestions to the people, for any further involvement in the
process of initiative by the Chief Executive may vitiate its character as a
genuine "people's initiative." The only initiative recognized by the
Constitution is that which truly proceeds from the people. As the Court
stated in Lambino v. COMELEC:177
"The Lambino Group claims that their initiative is the people's voice.'
However, the Lambino Group unabashedly states in ULAP Resolution
No. 2006-02, in the verification of their petition with the COMELEC, that
ULAP maintains its unqualified support to the agenda of Her Excellency
President Gloria Macapagal-Arroyo for constitutional reforms.' The
Lambino Group thus admits that their people's' initiative is an unqualified
support to the agenda' of the incumbent President to change the
Constitution. This forewarns the Court to be wary of incantations of
people's voice' or sovereign will' in the present initiative."
It will be observed that the President has authority, as stated in her oath
of office,178 only to preserve and defend the Constitution. Such
presidential power does not, however, extend to allowing her to change
the Constitution, but simply to recommend proposed amendments or
revision. As long as she limits herself to recommending these changes
and submits to the proper procedure for constitutional amendments and
revision, her mere recommendation need not be construed as an
unconstitutional act.
The foregoing discussion focused on the President's authority to
propose constitutional amendments, since her authority to propose
new legislation is not in controversy. It has been an accepted practice for
Presidents in this jurisdiction to propose new legislation. One of the more
prominent instances the practice is usually done is in the yearly State of
the Nation Address of the President to Congress. Moreover, the annual
general appropriations bill has always been based on the budget
prepared by the President, which - for all intents and purposes - is a
proposal for new legislation coming from the President.179
The "suspensive clause" in the MOA-AD viewed in light of the abovediscussed standards
Given the limited nature of the President's authority to propose
constitutional amendments, she cannot guarantee to any third party that
the required amendments will eventually be put in place, nor even be
submitted to a plebiscite. The most she could do is submit these
proposals as recommendations either to Congress or the people, in
whom constituent powers are vested.
Paragraph 7 on Governance of the MOA-AD states, however, that all
provisions thereof which cannot be reconciled with the present
Constitution and laws "shall come into force upon signing of a
Comprehensive Compact and upon effecting the necessary changes to
the legal framework." This stipulation does not bear the marks of a

suspensive condition - defined in civil law as a future and uncertain event

- but of a term. It is not a question of whether the necessary changes to
the legal framework will be effected, but when. That there is no
uncertainty being contemplated is plain from what follows, for the
paragraph goes on to state that the contemplated changes shall be "with
due regard to non derogation of prior agreements and within the
stipulated timeframe to be contained in the Comprehensive Compact."
Pursuant to this stipulation, therefore, it is mandatory for the GRP to
effect the changes to the legal framework contemplated in the MOA-AD which changes would include constitutional amendments, as discussed
earlier. It bears noting that,
By the time these changes are put in place, the MOA-AD itself would be
counted among the "prior agreements" from which there could be no
derogation.
What remains for discussion in the Comprehensive Compact would
merely be the implementing details for these "consensus points" and,
notably, the deadline for effecting the contemplated changes to the legal
framework.
Plainly, stipulation-paragraph 7 on GOVERNANCE is inconsistent with
the limits of the President's authority to propose constitutional
amendments, it being a virtual guarantee that the Constitution and the
laws of the Republic of the Philippines will certainly be adjusted to
conform to all the "consensus points" found in the MOA-AD.Hence, it
must be struck down as unconstitutional.
A comparison between the "suspensive clause" of the MOA-AD with a
similar provision appearing in the 1996 final peace agreement between
the MNLF and the GRP is most instructive.
As a backdrop, the parties to the 1996 Agreement stipulated that it would
be implemented in two phases. Phase Icovered a three-year transitional
period involving the putting up of new administrative structures through
Executive Order, such as the Special Zone of Peace and Development
(SZOPAD) and the Southern Philippines Council for Peace and
Development (SPCPD), while Phase II covered the establishment of the
new regional autonomous government through amendment or repeal of
R.A. No. 6734, which was then the Organic Act of the ARMM.
The stipulations on Phase II consisted of specific agreements on the
structure of the expanded autonomous region envisioned by the parties.
To that extent, they are similar to the provisions of the MOA-AD. There is,
however, a crucial difference between the two agreements. While the
MOA-AD virtually guarantees that the "necessary changes to the legal
framework" will be put in place, the GRP-MNLF final peace agreement
states thus: "Accordingly, these provisions [on Phase II] shall
be recommended by the GRP to Congress for incorporation in the
amendatory or repealing law."
Concerns have been raised that the MOA-AD would have given rise to a
binding international law obligation on the part of the Philippines to
change its Constitution in conformity thereto, on the ground that it may be
considered either as a binding agreement under international law, or a
unilateral declaration of the Philippine government to the international
community that it would grant to the Bangsamoro people all the
concessions therein stated. Neither ground finds sufficient support in
international law, however.
The MOA-AD, as earlier mentioned in the overview thereof, would have
included foreign dignitaries as signatories. In addition, representatives of
other nations were invited to witness its signing in Kuala Lumpur. These
circumstances readily lead one to surmise that the MOA-AD would have
had the status of a binding international agreement had it been signed.
An examination of the prevailing principles in international law, however,
leads to the contrary conclusion.

The Decision on Challenge to Jurisdiction: Lom Accord

Amnesty180 (the Lom Accord case) of the Special Court of Sierra
Leone is enlightening. The Lom Accord was a peace agreement signed
on July 7, 1999 between the Government of Sierra Leone and the
Revolutionary United Front (RUF), a rebel group with which the Sierra
Leone Government had been in armed conflict for around eight years at
the time of signing. There were non-contracting signatories to the
agreement, among which were the Government of the Togolese
Republic, the Economic Community of West African States, and the UN.
On January 16, 2002, after a successful negotiation between the UN
Secretary-General and the Sierra Leone Government, another agreement
was entered into by the UN and that Government whereby the Special
Court of Sierra Leone was established. The sole purpose of the Special
Court, an international court, was to try persons who bore the greatest
responsibility for serious violations of international humanitarian law and
Sierra Leonean law committed in the territory of Sierra Leone since
November 30, 1996.
Among the stipulations of the Lom Accord was a provision for the full
pardon of the members of the RUF with respect to anything done by them
in pursuit of their objectives as members of that organization since the
conflict began.
In the Lom Accord case, the Defence argued that the Accord created
an internationally binding obligation not to prosecute the beneficiaries of
the amnesty provided therein, citing, among other things, the participation
of foreign dignitaries and international organizations in the finalization of
that agreement. The Special Court, however, rejected this argument,
ruling that the Lome Accord is not a treaty and that it can only create
binding obligations and rights between the parties in municipal law, not in
international law. Hence, the Special Court held, it is ineffective in
depriving an international court like it of jurisdiction.
"37. In regard to the nature of a negotiated settlement of
an internal armed conflict it is easy to assume and to argue with some
degree of plausibility, as Defence counsel for the defendants seem to
have done, that the mere fact that in addition to the parties to the conflict,
the document formalizing the settlement is signed by foreign heads of
state or their representatives and representatives of international
organizations, means the agreement of the parties is internationalized so
as to create obligations in international law.
xxxx
40. Almost every conflict resolution will involve the parties to the conflict
and the mediator or facilitator of the settlement, or persons or bodies
under whose auspices the settlement took place but who are not at all
parties to the conflict, are not contracting parties and who do not claim
any obligation from the contracting parties or incur any obligation from the
settlement.
41. In this case, the parties to the conflict are the lawful authority of the
State and the RUF which has no status of statehood and is to all intents
and purposes a faction within the state. The non-contracting signatories
of the Lom Agreement were moral guarantors of the principle that, in the
terms of Article XXXIV of the Agreement, "this peace agreement is
implemented with integrity and in good faith by both parties". The moral
guarantors assumed no legal obligation. It is recalled that the UN by its
representative appended, presumably for avoidance of doubt, an
understanding of the extent of the agreement to be implemented as not
including certain international crimes.
42. An international agreement in the nature of a treaty must create rights
and obligations regulated by international law so that a breach of its
terms will be a breach determined under international law which will also
provide principle means of enforcement. The Lom Agreement created
neither rights nor obligations capable of being regulated by international

law. An agreement such as the Lom Agreement which brings to an end

an internal armed conflict no doubt creates a factual situation of
restoration of peace that the international community acting through the
Security Council may take note of. That, however, will not convert it to an
international agreement which creates an obligation enforceable in
international, as distinguished from municipal, law. A breach of the terms
of such a peace agreement resulting in resumption of internal armed
conflict or creating a threat to peace in the determination of the Security
Council may indicate a reversal of the factual situation of peace to be
visited with possible legal consequences arising from the new situation of
conflict created. Such consequences such as action by the Security
Council pursuant to Chapter VII arise from the situation and not from the
agreement, nor from the obligation imposed by it. Such action cannot be
regarded as a remedy for the breach. A peace agreement which settles
an internal armed conflict cannot be ascribed the same status as one
which settles an international armed conflict which, essentially, must be
between two or more warring States. The Lom Agreement cannot be
characterised as an international instrument. x x x" (Emphasis, italics and
underscoring supplied)
Similarly, that the MOA-AD would have been signed by representatives of
States and international organizations not parties to the Agreement would
not have sufficed to vest in it a binding character under international law.
In another vein, concern has been raised that the MOA-AD would amount
to a unilateral declaration of the Philippine State, binding under
international law, that it would comply with all the stipulations stated
therein, with the result that it would have to amend its Constitution
accordingly regardless of the true will of the people. Cited as authority for
this view is Australia v. France,181 also known as the Nuclear Tests
Case, decided by the International Court of Justice (ICJ).
In the Nuclear Tests Case, Australia challenged before the ICJ the
legality of France's nuclear tests in the South Pacific. France refused to
appear in the case, but public statements from its President, and similar
statements from other French officials including its Minister of Defence,
that its 1974 series of atmospheric tests would be its last, persuaded the
ICJ to dismiss the case.182 Those statements, the ICJ held, amounted to
a legal undertaking addressed to the international community, which
required no acceptance from other States for it to become effective.
Essential to the ICJ ruling is its finding that the French
government intended to be bound to the international community in
issuing its public statements, viz:
43. It is well recognized that declarations made by way of unilateral acts,
concerning legal or factual situations, may have the effect of creating
legal obligations. Declarations of this kind may be, and often are, very
specific. When it is the intention of the State making the declaration that it
should become bound according to its terms, that intention confers on the
declaration the character of a legal undertaking, the State being
thenceforth legally required to follow a course of conduct consistent with
the declaration. An undertaking of this kind, if given publicly, and with an
intent to be bound, even though not made within the context of
international negotiations, is binding. In these circumstances, nothing in
the nature of a quid pro quo nor any subsequent acceptance of the
declaration, nor even any reply or reaction from other States, is required
for the declaration to take effect, since such a requirement would be
inconsistent with the strictly unilateral nature of the juridical act by which
the pronouncement by the State was made.
44. Of course, not all unilateral acts imply obligation; but a State may
choose to take up a certain position in relation to a particular matter
with the intention of being bound-the intention is to be ascertained by
interpretation of the act. When States make statements by which their
freedom of action is to be limited, a restrictive interpretation is called for.
xxxx

51. In announcing that the 1974 series of atmospheric tests would be the
last, the French Government conveyed to the world at large, including the
Applicant, its intention effectively to terminate these tests. It was bound to
assume that other States might take note of these statements and rely on
their being effective. The validity of these statements and their legal
consequences must be considered within the general framework of the
security of international intercourse, and the confidence and trust which
are so essential in the relations among States. It is from the actual
substance of these statements, and from the circumstances attending
their making, that the legal implications of the unilateral act must be
deduced. The objects of these statements are clear and they were
addressed to the international community as a whole, and the Court
holds that they constitute an undertaking possessing legal effect. The
Court considers *270 that the President of the Republic, in deciding upon
the effective cessation of atmospheric tests, gave an undertaking to the
international community to which his words were addressed. x x x
(Emphasis and underscoring supplied)
As gathered from the above-quoted ruling of the ICJ, public statements of
a state representative may be construed as a unilateral declaration only
when the following conditions are present: the statements were clearly
addressed to the international community, the state intended to be bound
to that community by its statements, and that not to give legal effect to
those statements would be detrimental to the security of international
intercourse. Plainly, unilateral declarations arise only in peculiar
circumstances.
The limited applicability of the Nuclear Tests Case ruling was recognized
in a later case decided by the ICJ entitledBurkina Faso v. Mali,183 also
known as the Case Concerning the Frontier Dispute. The public
declaration subject of that case was a statement made by the President
of Mali, in an interview by a foreign press agency, that Mali would abide
by the decision to be issued by a commission of the Organization of
African Unity on a frontier dispute then pending between Mali and
Burkina Faso.
Unlike in the Nuclear Tests Case, the ICJ held that the statement of
Mali's President was not a unilateral act with legal implications. It clarified
that its ruling in the Nuclear Tests case rested on the peculiar
circumstances surrounding the French declaration subject thereof, to wit:
40. In order to assess the intentions of the author of a unilateral act,
account must be taken of all the factual circumstances in which the act
occurred. For example, in the Nuclear Tests cases, the Court took the
view that since the applicant States were not the only ones concerned at
the possible continuance of atmospheric testing by the French
Government, that Government's unilateral declarations had conveyed to
the world at large, including the Applicant, its intention effectively to
terminate these tests (I.C.J. Reports 1974, p. 269, para. 51; p. 474, para.
53). In the particular circumstances of those cases, the French
Government could not express an intention to be bound otherwise than
by unilateral declarations. It is difficult to see how it could have accepted
the terms of a negotiated solution with each of the applicants without
thereby jeopardizing its contention that its conduct was lawful. The
circumstances of the present case are radically different. Here, there was
nothing to hinder the Parties from manifesting an intention to accept the
binding character of the conclusions of the Organization of African Unity
Mediation Commission by the normal method: a formal agreement on the
basis of reciprocity. Since no agreement of this kind was concluded
between the Parties, the Chamber finds that there are no grounds to
interpret the declaration made by Mali's head of State on 11 April 1975 as
a unilateral act with legal implications in regard to the present case.
(Emphasis and underscoring supplied)
Assessing the MOA-AD in light of the above criteria, it would not have
amounted to a unilateral declaration on the part of the Philippine State to
the international community. The Philippine panel did not draft the same
with the clear intention of being bound thereby to the international

community as a whole or to any State, but only to the MILF. While there
were States and international organizations involved, one way or another,
in the negotiation and projected signing of the MOA-AD, they participated
merely as witnesses or, in the case of Malaysia, as facilitator. As held in
the Lom Accord case, the mere fact that in addition to the parties to the
conflict, the peace settlement is signed by representatives of states and
international organizations does not mean that the agreement is
internationalized so as to create obligations in international law.
Since the commitments in the MOA-AD were not addressed to States,
not to give legal effect to such commitments would not be detrimental to
the security of international intercourse - to the trust and confidence
essential in the relations among States.
In one important respect, the circumstances surrounding the MOA-AD
are closer to that of Burkina Faso wherein, as already discussed, the Mali
President's statement was not held to be a binding unilateral declaration
by the ICJ. As in that case, there was also nothing to hinder the
Philippine panel, had it really been its intention to be bound to other
States, to manifest that intention by formal agreement. Here, that formal
agreement would have come about by the inclusion in the MOA-AD of a
clear commitment to be legally bound to the international community, not
just the MILF, and by an equally clear indication that the signatures of the
participating states-representatives would constitute an acceptance of
that commitment. Entering into such a formal agreement would not have
resulted in a loss of face for the Philippine government before the
international community, which was one of the difficulties that prevented
the French Government from entering into a formal agreement with other
countries. That the Philippine panel did not enter into such a formal
agreement suggests that it had no intention to be bound to the
international community. On that ground, the MOA-AD may not
be considered a unilateral declaration under international law.
The MOA-AD not being a document that can bind the Philippines under
international law notwithstanding, respondents' almost consummated act
of guaranteeing amendments to the legal framework is, by itself, sufficient
to constitute grave abuse of discretion. The grave abuse lies not in the
fact that they considered, as a solution to the Moro Problem, the creation
of a state within a state, but in their brazen willingness toguarantee that
Congress and the sovereign Filipino people would give their imprimatur to
their solution. Upholding such an act would amount to authorizing a
usurpation of the constituent powers vested only in Congress, a
Constitutional Convention, or the people themselves through the process
of initiative, for the only way that the Executive can ensure the outcome
of the amendment process is through an undue influence or interference
with that process.
The sovereign people may, if it so desired, go to the extent of giving up a
portion of its own territory to the Moros for the sake of peace, for it can
change the Constitution in any it wants, so long as the change is not
inconsistent with what, in international law, is known as Jus
Cogens.184 Respondents, however, may not preempt it in that decision.
SUMMARY
The petitions are ripe for adjudication. The failure of respondents to
consult the local government units or communities affected constitutes a
departure by respondents from their mandate under E.O. No. 3.
Moreover, respondents exceeded their authority by the mere act of
guaranteeing amendments to the Constitution. Any alleged violation of
the Constitution by any branch of government is a proper matter for
judicial review.
As the petitions involve constitutional issues which are of paramount
public interest or of transcendental importance, the Court grants the
petitioners, petitioners-in-intervention and intervening respondents the
requisitelocus standi in keeping with the liberal stance adopted in David
v. Macapagal-Arroyo.

Contrary to the assertion of respondents that the non-signing of the MOAAD and the eventual dissolution of the GRP Peace Panel mooted the
present petitions, the Court finds that the present petitions provide an
exception to the "moot and academic" principle in view of (a) the grave
violation of the Constitution involved; (b) the exceptional character of the
situation and paramount public interest; (c) the need to formulate
controlling principles to guide the bench, the bar, and the public; and (d)
the fact that the case is capable of repetition yet evading review.
The MOA-AD is a significant part of a series of agreements necessary to
carry out the GRP-MILF Tripoli Agreement on Peace signed by the
government and the MILF back in June 2001. Hence, the present MOAAD can be renegotiated or another one drawn up that could contain
similar or significantly dissimilar provisions compared to the original.
The Court, however, finds that the prayers for mandamus have been
rendered moot in view of the respondents' action in providing the Court
and the petitioners with the official copy of the final draft of the MOA-AD
and its annexes.
The people's right to information on matters of public concern under Sec.
7, Article III of the Constitution is insplendid symmetry with the state
policy of full public disclosure of all its transactions involving public
interest under Sec. 28, Article II of the Constitution. The right to
information guarantees the right of the people to demand information,
while Section 28 recognizes the duty of officialdom to give information
even if nobody demands. The complete and effective exercise of the right
to information necessitates that its complementary provision on public
disclosure derive the same self-executory nature, subject only to
reasonable safeguards or limitations as may be provided by law.
The contents of the MOA-AD is a matter of paramount public concern
involving public interest in the highest order. In declaring that the right to
information contemplates steps and negotiations leading to the
consummation of the contract, jurisprudence finds no distinction as to the
executory nature or commercial character of the agreement.
An essential element of these twin freedoms is to keep a continuing
dialogue or process of communication between the government and the
people. Corollary to these twin rights is the design for feedback
mechanisms. The right to public consultation was envisioned to be a
species of these public rights.
At least three pertinent laws animate these constitutional imperatives and
justify the exercise of the people's right to be consulted on relevant
matters relating to the peace agenda.
One, E.O. No. 3 itself is replete with mechanics for continuing
consultations on both national and local levels and for a principal forum
for consensus-building. In fact, it is the duty of the Presidential Adviser on
the Peace Process to conduct regular dialogues to seek relevant
information, comments, advice, and recommendations from peace
partners and concerned sectors of society.
Two, Republic Act No. 7160 or the Local Government Code of 1991
requires all national offices to conduct consultations before any project or
program critical to the environment and human ecology including those
that may call for the eviction of a particular group of people residing in
such locality, is implemented therein. The MOA-AD is one peculiar
program that unequivocally and unilaterally vests ownership of a vast
territory to the Bangsamoro people, which could pervasively and
drastically result to the diaspora or displacement of a great number of
inhabitants from their total environment.
Three, Republic Act No. 8371 or the Indigenous Peoples Rights Act of
1997 provides for clear-cut procedure for the recognition and delineation
of ancestral domain, which entails, among other things, the observance
of the free and prior informed consent of the Indigenous Cultural

Communities/Indigenous Peoples. Notably, the statute does not grant the

Executive Department or any government agency the power to delineate
and recognize an ancestral domain claim by mere agreement or
compromise.
The invocation of the doctrine of executive privilege as a defense to the
general right to information or the specific right to consultation is
untenable. The various explicit legal provisions fly in the face of executive
secrecy. In any event, respondents effectively waived such defense after
it unconditionally disclosed the official copies of the final draft of the
MOA-AD, for judicial compliance and public scrutiny.
In sum, the Presidential Adviser on the Peace Process committed grave
abuse of discretion when he failed to carry out the pertinent consultation
process, as mandated by E.O. No. 3, Republic Act No. 7160, and
Republic Act No. 8371. The furtive process by which the MOA-AD was
designed and crafted runs contrary to and in excess of the legal authority,
and amounts to a whimsical, capricious, oppressive, arbitrary and
despotic exercise thereof. It illustrates a gross evasion of positive duty
and a virtual refusal to perform the duty enjoined.
The MOA-AD cannot be reconciled with the present Constitution and
laws. Not only its specific provisions but the very concept underlying
them, namely, the associative relationship envisioned between the GRP
and the BJE, areunconstitutional, for the concept presupposes that the
associated entity is a state and implies that the same is on its way to
independence.
While there is a clause in the MOA-AD stating that the provisions thereof
inconsistent with the present legal framework will not be effective until
that framework is amended, the same does not cure its defect. The
inclusion of provisions in the MOA-AD establishing an associative
relationship between the BJE and the Central Government is, itself, a
violation of the Memorandum of Instructions From The President dated
March 1, 2001, addressed to the government peace panel. Moreover, as
the clause is worded, it virtually guarantees that the necessary
amendments to the Constitution and the laws will eventually be put in
place. Neither the GRP Peace Panel nor the President herself is
authorized to make such a guarantee. Upholding such an act would
amount to authorizing a usurpation of the constituent powers vested only
in Congress, a Constitutional Convention, or the people themselves
through the process of initiative, for the only way that the Executive can
ensure the outcome of the amendment process is through an undue
influence or interference with that process.
While the MOA-AD would not amount to an international agreement or
unilateral declaration binding on the Philippines under international law,
respondents' act of guaranteeing amendments is, by itself, already a
constitutional violation that renders the MOA-AD fatally defective.
WHEREFORE, respondents' motion to dismiss is DENIED. The main and
intervening petitions are GIVEN DUE COURSE and hereby GRANTED.
The Memorandum of Agreement on the Ancestral Domain Aspect of the
GRP-MILF Tripoli Agreement on Peace of 2001 is declared contrary to
law and the Constitution.
SO ORDERED.

B. PRINCIPLES OF LOCAL AUTONOMY

1.

Laws of the City Council of Manila), can question and seek the annulment
of PD 1869 on the alleged grounds mentioned above.

Principle of Local Authority

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. 91649 May 14, 1991

ATTORNEYS HUMBERTO BASCO, EDILBERTO BALCE, SOCRATES
MARANAN AND LORENZO SANCHEZ,petitioners,
vs.
PHILIPPINE AMUSEMENTS AND GAMING CORPORATION
(PAGCOR), respondent.
H.B. Basco & Associates for petitioners.
Valmonte Law Offices collaborating counsel for petitioners.
Aguirre, Laborte and Capule for respondent PAGCOR.

PARAS, J.:p
A TV ad proudly announces:
"The new PAGCOR responding through responsible gaming."
But the petitioners think otherwise, that is why, they filed the instant
petition seeking to annul the Philippine Amusement and Gaming
Corporation (PAGCOR) Charter PD 1869, because it is allegedly
contrary to morals, public policy and order, and because
A. It constitutes a waiver of a right prejudicial to a third person with a right
recognized by law. It waived the Manila City government's right to impose
taxes and license fees, which is recognized by law;
B. For the same reason stated in the immediately preceding paragraph,
the law has intruded into the local government's right to impose local
taxes and license fees. This, in contravention of the constitutionally
enshrined principle of local autonomy;
C. It violates the equal protection clause of the constitution in that it
legalizes PAGCOR conducted gambling, while most other forms of
gambling are outlawed, together with prostitution, drug trafficking and
other vices;
D. It violates the avowed trend of the Cory government away from
monopolistic and crony economy, and toward free enterprise and
privatization. (p. 2, Amended Petition; p. 7, Rollo)
In their Second Amended Petition, petitioners also claim that PD 1869 is
contrary to the declared national policy of the "new restored democracy"
and the people's will as expressed in the 1987 Constitution. The decree is
said to have a "gambling objective" and therefore is contrary to Sections
11, 12 and 13 of Article II, Sec. 1 of Article VIII and Section 3 (2) of Article
XIV, of the present Constitution (p. 3, Second Amended Petition; p.
21, Rollo).
The procedural issue is whether petitioners, as taxpayers and practicing
lawyers (petitioner Basco being also the Chairman of the Committee on

The Philippine Amusements and Gaming Corporation (PAGCOR) was

created by virtue of P.D. 1067-A dated January 1, 1977 and was granted
a franchise under P.D. 1067-B also dated January 1, 1977 "to establish,
operate and maintain gambling casinos on land or water within the
territorial jurisdiction of the Philippines." Its operation was originally
conducted in the well known floating casino "Philippine Tourist." The
operation was considered a success for it proved to be a potential source
of revenue to fund infrastructure and socio-economic projects, thus, P.D.
1399 was passed on June 2, 1978 for PAGCOR to fully attain this
objective.
Subsequently, on July 11, 1983, PAGCOR was created under P.D. 1869
to enable the Government to regulate and centralize all games of chance
authorized by existing franchise or permitted by law, under the following
declared policy
Sec. 1. Declaration of Policy. It is hereby declared to be the policy of
the State to centralize and integrate all games of chance not heretofore
authorized by existing franchises or permitted by law in order to attain the
following objectives:
(a) To centralize and integrate the right and authority to operate and
conduct games of chance into one corporate entity to be controlled,
administered and supervised by the Government.
(b) To establish and operate clubs and casinos, for amusement and
recreation, including sports gaming pools, (basketball, football, lotteries,
etc.) and such other forms of amusement and recreation including games
of chance, which may be allowed by law within the territorial jurisdiction of
the Philippines and which will: (1) generate sources of additional revenue
to fund infrastructure and socio-civic projects, such as flood control
programs, beautification, sewerage and sewage projects, Tulungan ng
Bayan Centers, Nutritional Programs, Population Control and such other
essential public services; (2) create recreation and integrated facilities
which will expand and improve the country's existing tourist attractions;
and (3) minimize, if not totally eradicate, all the evils, malpractices and
corruptions that are normally prevalent on the conduct and operation of
gambling clubs and casinos without direct government involvement.
(Section 1, P.D. 1869)
To attain these objectives PAGCOR is given territorial jurisdiction all over
the Philippines. Under its Charter's repealing clause, all laws, decrees,
executive orders, rules and regulations, inconsistent therewith, are
accordingly repealed, amended or modified.
It is reported that PAGCOR is the third largest source of government
revenue, next to the Bureau of Internal Revenue and the Bureau of
Customs. In 1989 alone, PAGCOR earned P3.43 Billion, and directly
remitted to the National Government a total of P2.5 Billion in form of
franchise tax, government's income share, the President's Social Fund
and Host Cities' share. In addition, PAGCOR sponsored other sociocultural and charitable projects on its own or in cooperation with various
governmental agencies, and other private associations and
organizations. In its 3 1/2 years of operation under the present
administration, PAGCOR remitted to the government a total of P6.2
Billion. As of December 31, 1989, PAGCOR was employing 4,494
employees in its nine (9) casinos nationwide, directly supporting the
livelihood of Four Thousand Four Hundred Ninety-Four (4,494) families.
But the petitioners, are questioning the validity of P.D. No. 1869. They
allege that the same is "null and void" for being "contrary to morals, public
policy and public order," monopolistic and tends toward "crony economy",
and is violative of the equal protection clause and local autonomy as well
as for running counter to the state policies enunciated in Sections 11
(Personal Dignity and Human Rights), 12 (Family) and 13 (Role of Youth)

of Article II, Section 1 (Social Justice) of Article XIII and Section 2

(Educational Values) of Article XIV of the 1987 Constitution.
This challenge to P.D. No. 1869 deserves a searching and thorough
scrutiny and the most deliberate consideration by the Court, involving as
it does the exercise of what has been described as "the highest and most
delicate function which belongs to the judicial department of the
government." (State v. Manuel, 20 N.C. 144; Lozano v. Martinez, 146
SCRA 323).
As We enter upon the task of passing on the validity of an act of a coequal and coordinate branch of the government We need not be
reminded of the time-honored principle, deeply ingrained in our
jurisprudence, that a statute is presumed to be valid. Every presumption
must be indulged in favor of its constitutionality. This is not to say that We
approach Our task with diffidence or timidity. Where it is clear that the
legislature or the executive for that matter, has over-stepped the limits of
its authority under the constitution, We should not hesitate to wield the
axe and let it fall heavily, as fall it must, on the offending statute (Lozano
v. Martinez, supra).
In Victoriano v. Elizalde Rope Workers' Union, et al, 59 SCRA 54, the
Court thru Mr. Justice Zaldivar underscored the
. . . thoroughly established principle which must be followed in all cases
where questions of constitutionality as obtain in the instant cases are
involved. All presumptions are indulged in favor of constitutionality; one
who attacks a statute alleging unconstitutionality must prove its invalidity
beyond a reasonable doubt; that a law may work hardship does not
render it unconstitutional; that if any reasonable basis may be conceived
which supports the statute, it will be upheld and the challenger must
negate all possible basis; that the courts are not concerned with the
wisdom, justice, policy or expediency of a statute and that a liberal
interpretation of the constitution in favor of the constitutionality of
legislation should be adopted. (Danner v. Hass, 194 N.W. 2nd 534, 539;
Spurbeck v. Statton, 106 N.W. 2nd 660, 663; 59 SCRA 66; see also e.g.
Salas v. Jarencio, 46 SCRA 734, 739 [1970]; Peralta v. Commission on
Elections, 82 SCRA 30, 55 [1978]; and Heirs of Ordona v. Reyes, 125
SCRA 220, 241-242 [1983] cited in Citizens Alliance for Consumer
Protection v. Energy Regulatory Board, 162 SCRA 521, 540)
Of course, there is first, the procedural issue. The respondents are
questioning the legal personality of petitioners to file the instant petition.
Considering however the importance to the public of the case at bar, and
in keeping with the Court's duty, under the 1987 Constitution, to
determine whether or not the other branches of government have kept
themselves within the limits of the Constitution and the laws and that they
have not abused the discretion given to them, the Court has brushed
aside technicalities of procedure and has taken cognizance of this
petition. (Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas Inc.
v. Tan, 163 SCRA 371)
With particular regard to the requirement of proper party as applied in the
cases before us, We hold that the same is satisfied by the petitioners and
intervenors because each of them has sustained or is in danger of
sustaining an immediate injury as a result of the acts or measures
complained of. And even if, strictly speaking they are not covered by the
definition, it is still within the wide discretion of the Court to waive the
requirement and so remove the impediment to its addressing and
resolving the serious constitutional questions raised.
In the first Emergency Powers Cases, ordinary citizens and taxpayers
were allowed to question the constitutionality of several executive orders
issued by President Quirino although they were involving only an indirect
and general interest shared in common with the public. The Court
dismissed the objection that they were not proper parties and ruled that
"the transcendental importance to the public of these cases demands that

they be settled promptly and definitely, brushing aside, if we must

technicalities of procedure." We have since then applied the exception in
many other cases. (Association of Small Landowners in the Philippines,
Inc. v. Sec. of Agrarian Reform, 175 SCRA 343).
Having disposed of the procedural issue, We will now discuss the
substantive issues raised.
Gambling in all its forms, unless allowed by law, is generally prohibited.
But the prohibition of gambling does not mean that the Government
cannot regulate it in the exercise of its police power.
The concept of police power is well-established in this jurisdiction. It has
been defined as the "state authority to enact legislation that may interfere
with personal liberty or property in order to promote the general welfare."
(Edu v. Ericta, 35 SCRA 481, 487) As defined, it consists of (1) an
imposition or restraint upon liberty or property, (2) in order to foster the
common good. It is not capable of an exact definition but has been,
purposely, veiled in general terms to underscore its all-comprehensive
embrace. (Philippine Association of Service Exporters, Inc. v. Drilon, 163
SCRA 386).
Its scope, ever-expanding to meet the exigencies of the times, even to
anticipate the future where it could be done, provides enough room for an
efficient and flexible response to conditions and circumstances thus
assuming the greatest benefits. (Edu v. Ericta, supra)
It finds no specific Constitutional grant for the plain reason that it does not
owe its origin to the charter. Along with the taxing power and eminent
domain, it is inborn in the very fact of statehood and sovereignty. It is a
fundamental attribute of government that has enabled it to perform the
most vital functions of governance. Marshall, to whom the expression has
been credited, refers to it succinctly as the plenary power of the state "to
govern its citizens". (Tribe, American Constitutional Law, 323, 1978). The
police power of the State is a power co-extensive with self-protection and
is most aptly termed the "law of overwhelming necessity." (Rubi v.
Provincial Board of Mindoro, 39 Phil. 660, 708) It is "the most essential,
insistent, and illimitable of powers." (Smith Bell & Co. v. National, 40 Phil.
136) It is a dynamic force that enables the state to meet the agencies of
the winds of change.
What was the reason behind the enactment of P.D. 1869?
P.D. 1869 was enacted pursuant to the policy of the government to
"regulate and centralize thru an appropriate institution all games of
chance authorized by existing franchise or permitted by law" (1st whereas
clause, PD 1869). As was subsequently proved, regulating and
centralizing gambling operations in one corporate entity the PAGCOR,
was beneficial not just to the Government but to society in general. It is a
reliable source of much needed revenue for the cash strapped
Government. It provided funds for social impact projects and subjected
gambling to "close scrutiny, regulation, supervision and control of the
Government" (4th Whereas Clause, PD 1869). With the creation of
PAGCOR and the direct intervention of the Government, the evil
practices and corruptions that go with gambling will be minimized if not
totally eradicated. Public welfare, then, lies at the bottom of the
enactment of PD 1896.
Petitioners contend that P.D. 1869 constitutes a waiver of the right of the
City of Manila to impose taxes and legal fees; that the exemption clause
in P.D. 1869 is violative of the principle of local autonomy. They must be
referring to Section 13 par. (2) of P.D. 1869 which exempts PAGCOR, as
the franchise holder from paying any "tax of any kind or form, income or
otherwise, as well as fees, charges or levies of whatever nature, whether
National or Local."
(2) Income and other taxes. a) Franchise Holder: No tax of any kind or
form, income or otherwise as well as fees, charges or levies of whatever

nature, whether National or Local, shall be assessed and collected under

this franchise from the Corporation; nor shall any form or tax or charge
attach in any way to the earnings of the Corporation, except a franchise
tax of five (5%) percent of the gross revenues or earnings derived by the
Corporation from its operations under this franchise. Such tax shall be
due and payable quarterly to the National Government and shall be in
lieu of all kinds of taxes, levies, fees or assessments of any kind, nature
or description, levied, established or collected by any municipal,
provincial or national government authority (Section 13 [2]).

of the Corporation Code of the Philippines to the contrary

notwithstanding, except only with respect to original incorporation.

Their contention stated hereinabove is without merit for the following

reasons:

The states have no power by taxation or otherwise, to retard, impede,

burden or in any manner control the operation of constitutional laws
enacted by Congress to carry into execution the powers vested in the
federal government. (MC Culloch v. Marland, 4 Wheat 316, 4 L Ed. 579)

(a) The City of Manila, being a mere Municipal corporation has no

inherent right to impose taxes (Icard v. City of Baguio, 83 Phil. 870; City
of Iloilo v. Villanueva, 105 Phil. 337; Santos v. Municipality of Caloocan, 7
SCRA 643). Thus, "the Charter or statute must plainly show an intent to
confer that power or the municipality cannot assume it" (Medina v. City of
Baguio, 12 SCRA 62). Its "power to tax" therefore must always yield to a
legislative act which is superior having been passed upon by the state
itself which has the "inherent power to tax" (Bernas, the Revised [1973]
Philippine Constitution, Vol. 1, 1983 ed. p. 445).
(b) The Charter of the City of Manila is subject to control by Congress. It
should be stressed that "municipal corporations are mere creatures of
Congress" (Unson v. Lacson, G.R. No. 7909, January 18, 1957) which
has the power to "create and abolish municipal corporations" due to its
"general legislative powers" (Asuncion v. Yriantes, 28 Phil. 67; Merdanillo
v. Orandia, 5 SCRA 541). Congress, therefore, has the power of control
over Local governments (Hebron v. Reyes, G.R. No. 9124, July 2, 1950).
And if Congress can grant the City of Manila the power to tax certain
matters, it can also provide for exemptions or even take back the power.
(c) The City of Manila's power to impose license fees on gambling, has
long been revoked. As early as 1975, the power of local governments to
regulate gambling thru the grant of "franchise, licenses or permits" was
withdrawn by P.D. No. 771 and was vested exclusively on the National
Government, thus:
Sec. 1. Any provision of law to the contrary notwithstanding, the authority
of chartered cities and other local governments to issue license, permit or
other form of franchise to operate, maintain and establish horse and dog
race tracks, jai-alai and other forms of gambling is hereby revoked.
Sec. 2. Hereafter, all permits or franchises to operate, maintain and
establish, horse and dog race tracks, jai-alai and other forms of gambling
shall be issued by the national government upon proper application and
verification of the qualification of the applicant . . .
Therefore, only the National Government has the power to issue
"licenses or permits" for the operation of gambling. Necessarily, the
power to demand or collect license fees which is a consequence of the
issuance of "licenses or permits" is no longer vested in the City of Manila.
(d) Local governments have no power to tax instrumentalities of the
National Government. PAGCOR is a government owned or controlled
corporation with an original charter, PD 1869. All of its shares of stocks
are owned by the National Government. In addition to its corporate
powers (Sec. 3, Title II, PD 1869) it also exercises regulatory powers
thus:
Sec. 9. Regulatory Power. The Corporation shall maintain a Registry
of the affiliated entities, and shall exercise all the powers, authority and
the responsibilities vested in the Securities and Exchange Commission
over such affiliating entities mentioned under the preceding section,
including, but not limited to amendments of Articles of Incorporation and
By-Laws, changes in corporate term, structure, capitalization and other
matters concerning the operation of the affiliated entities, the provisions

PAGCOR has a dual role, to operate and to regulate gambling casinos.

The latter role is governmental, which places it in the category of an
agency or instrumentality of the Government. Being an instrumentality of
the Government, PAGCOR should be and actually is exempt from local
taxes. Otherwise, its operation might be burdened, impeded or subjected
to control by a mere Local government.

This doctrine emanates from the "supremacy" of the National

Government over local governments.
Justice Holmes, speaking for the Supreme Court, made reference to the
entire absence of power on the part of the States to touch, in that way
(taxation) at least, the instrumentalities of the United States (Johnson v.
Maryland, 254 US 51) and it can be agreed that no state or political
subdivision can regulate a federal instrumentality in such a way as to
prevent it from consummating its federal responsibilities, or even to
seriously burden it in the accomplishment of them. (Antieau, Modern
Constitutional Law, Vol. 2, p. 140, emphasis supplied)
Otherwise, mere creatures of the State can defeat National policies thru
extermination of what local authorities may perceive to be undesirable
activities or enterprise using the power to tax as "a tool for regulation"
(U.S. v. Sanchez, 340 US 42).
The power to tax which was called by Justice Marshall as the "power to
destroy" (Mc Culloch v. Maryland, supra) cannot be allowed to defeat an
instrumentality or creation of the very entity which has the inherent power
to wield it.
(e) Petitioners also argue that the Local Autonomy Clause of the
Constitution will be violated by P.D. 1869. This is a pointless argument.
Article X of the 1987 Constitution (on Local Autonomy) provides:
Sec. 5. Each local government unit shall have the power to create its own
source of revenue and to levy taxes, fees, and other charges subject to
such guidelines and limitation as the congress may provide, consistent
with the basic policy on local autonomy. Such taxes, fees and charges
shall accrue exclusively to the local government. (emphasis supplied)
The power of local government to "impose taxes and fees" is always
subject to "limitations" which Congress may provide by law. Since PD
1869 remains an "operative" law until "amended, repealed or revoked"
(Sec. 3, Art. XVIII, 1987 Constitution), its "exemption clause" remains as
an exception to the exercise of the power of local governments to impose
taxes and fees. It cannot therefore be violative but rather is consistent
with the principle of local autonomy.
Besides, the principle of local autonomy under the 1987 Constitution
simply means "decentralization" (III Records of the 1987 Constitutional
Commission, pp. 435-436, as cited in Bernas, The Constitution of the
Republic of the Philippines, Vol. II, First Ed., 1988, p. 374). It does not
make local governments sovereign within the state or an "imperium in
imperio."
Local Government has been described as a political subdivision of a
nation or state which is constituted by law and has substantial control of
local affairs. In a unitary system of government, such as the government
under the Philippine Constitution, local governments can only be an intra
sovereign subdivision of one sovereign nation, it cannot be
an imperium in imperio. Local government in such a system can only

mean a measure of decentralization of the function of government.

(emphasis supplied)
As to what state powers should be "decentralized" and what may be
delegated to local government units remains a matter of policy, which
concerns wisdom. It is therefore a political question. (Citizens Alliance for
Consumer Protection v. Energy Regulatory Board, 162 SCRA 539).

The judiciary does not settle policy issues. The Court can only declare
what the law is and not what the law should be. Under our system of
government, policy issues are within the domain of the political branches
of government and of the people themselves as the repository of all state
power. (Valmonte v. Belmonte, Jr., 170 SCRA 256).
On the issue of "monopoly," however, the Constitution provides that:

What is settled is that the matter of regulating, taxing or otherwise dealing

with gambling is a State concern and hence, it is the sole prerogative of
the State to retain it or delegate it to local governments.

Sec. 19. The State shall regulate or prohibit monopolies when public
interest so requires. No combinations in restraint of trade or unfair
competition shall be allowed. (Art. XII, National Economy and Patrimony)

As gambling is usually an offense against the State, legislative grant or

express charter power is generally necessary to empower the local
corporation to deal with the subject. . . . In the absence of express grant
of power to enact, ordinance provisions on this subject which are
inconsistent with the state laws are void. (Ligan v. Gadsden, Ala App. 107
So. 733 Ex-Parte Solomon, 9, Cals. 440, 27 PAC 757 following in re Ah
You, 88 Cal. 99, 25 PAC 974, 22 Am St. Rep. 280, 11 LRA 480, as cited
in Mc Quinllan Vol. 3 Ibid, p. 548, emphasis supplied)

It should be noted that, as the provision is worded, monopolies are not

necessarily prohibited by the Constitution. The state must still decide
whether public interest demands that monopolies be regulated or
prohibited. Again, this is a matter of policy for the Legislature to decide.

Petitioners next contend that P.D. 1869 violates the equal protection
clause of the Constitution, because "it legalized PAGCOR conducted
gambling, while most gambling are outlawed together with prostitution,
drug trafficking and other vices" (p. 82, Rollo).
We, likewise, find no valid ground to sustain this contention. The
petitioners' posture ignores the well-accepted meaning of the clause
"equal protection of the laws." The clause does not preclude classification
of individuals who may be accorded different treatment under the law as
long as the classification is not unreasonable or arbitrary (Itchong v.
Hernandez, 101 Phil. 1155). A law does not have to operate in equal
force on all persons or things to be conformable to Article III, Section 1 of
the Constitution (DECS v. San Diego, G.R. No. 89572, December 21,
1989).
The "equal protection clause" does not prohibit the Legislature from
establishing classes of individuals or objects upon which different rules
shall operate (Laurel v. Misa, 43 O.G. 2847). The Constitution does not
require situations which are different in fact or opinion to be treated in law
as though they were the same (Gomez v. Palomar, 25 SCRA 827).
Just how P.D. 1869 in legalizing gambling conducted by PAGCOR is
violative of the equal protection is not clearly explained in the petition.
The mere fact that some gambling activities like cockfighting (P.D 449)
horse racing (R.A. 306 as amended by RA 983), sweepstakes, lotteries
and races (RA 1169 as amended by B.P. 42) are legalized under certain
conditions, while others are prohibited, does not render the applicable
laws, P.D. 1869 for one, unconstitutional.
If the law presumably hits the evil where it is most felt, it is not to be
overthrown because there are other instances to which it might have
been applied. (Gomez v. Palomar, 25 SCRA 827)
The equal protection clause of the 14th Amendment does not mean that
all occupations called by the same name must be treated the same way;
the state may do what it can to prevent which is deemed as evil and stop
short of those cases in which harm to the few concerned is not less than
the harm to the public that would insure if the rule laid down were made
mathematically exact. (Dominican Hotel v. Arizona, 249 US 2651).
Anent petitioners' claim that PD 1869 is contrary to the "avowed trend of
the Cory Government away from monopolies and crony economy and
toward free enterprise and privatization" suffice it to state that this is not a
ground for this Court to nullify P.D. 1869. If, indeed, PD 1869 runs
counter to the government's policies then it is for the Executive
Department to recommend to Congress its repeal or amendment.

On petitioners' allegation that P.D. 1869 violates Sections 11 (Personality

Dignity) 12 (Family) and 13 (Role of Youth) of Article II; Section 13 (Social
Justice) of Article XIII and Section 2 (Educational Values) of Article XIV of
the 1987 Constitution, suffice it to state also that these are merely
statements of principles and, policies. As such, they are basically not selfexecuting, meaning a law should be passed by Congress to clearly define
and effectuate such principles.
In general, therefore, the 1935 provisions were not intended to be selfexecuting principles ready for enforcement through the courts. They were
rather directives addressed to the executive and the legislature. If the
executive and the legislature failed to heed the directives of the articles
the available remedy was not judicial or political. The electorate could
express their displeasure with the failure of the executive and the
legislature through the language of the ballot. (Bernas, Vol. II, p. 2)
Every law has in its favor the presumption of constitutionality (Yu Cong
Eng v. Trinidad, 47 Phil. 387; Salas v. Jarencio, 48 SCRA 734; Peralta v.
Comelec, 82 SCRA 30; Abbas v. Comelec, 179 SCRA 287). Therefore,
for PD 1869 to be nullified, it must be shown that there is a clear and
unequivocal breach of the Constitution, not merely a doubtful and
equivocal one. In other words, the grounds for nullity must be clear and
beyond reasonable doubt. (Peralta v. Comelec, supra) Those who
petition this Court to declare a law, or parts thereof, unconstitutional must
clearly establish the basis for such a declaration. Otherwise, their petition
must fail. Based on the grounds raised by petitioners to challenge the
constitutionality of P.D. 1869, the Court finds that petitioners have failed
to overcome the presumption. The dismissal of this petition is therefore,
inevitable. But as to whether P.D. 1869 remains a wise legislation
considering the issues of "morality, monopoly, trend to free enterprise,
privatization as well as the state principles on social justice, role of youth
and educational values" being raised, is up for Congress to determine.
As this Court held in Citizens' Alliance for Consumer Protection v. Energy
Regulatory Board, 162 SCRA 521
Presidential Decree No. 1956, as amended by Executive Order No. 137
has, in any case, in its favor the presumption of validity and
constitutionality which petitioners Valmonte and the KMU have not
overturned. Petitioners have not undertaken to identify the provisions in
the Constitution which they claim to have been violated by that statute.
This Court, however, is not compelled to speculate and to imagine how
the assailed legislation may possibly offend some provision of the
Constitution. The Court notes, further, in this respect that petitioners have
in the main put in question the wisdom, justice and expediency of the
establishment of the OPSF, issues which are not properly addressed to
this Court and which this Court may not constitutionally pass upon. Those
issues should be addressed rather to the political departments of
government: the President and the Congress.

Parenthetically, We wish to state that gambling is generally immoral, and

this is precisely so when the gambling resorted to is excessive. This
excessiveness necessarily depends not only on the financial resources of
the gambler and his family but also on his mental, social, and spiritual
outlook on life. However, the mere fact that some persons may have lost
their material fortunes, mental control, physical health, or even their lives
does not necessarily mean that the same are directly attributable to
gambling. Gambling may have been the antecedent,but certainly not
necessarily the cause. For the same consequences could have been
preceded by an overdose of food, drink, exercise, work, and even sex.

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.

WHEREFORE, the petition is DISMISSED for lack of merit.

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:

SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 129093

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.

August 30, 2001

SO ORDERED.4

HON. JOSE D. LINA, JR., SANGGUNIANG PANLALAWIGAN OF

LAGUNA, and HON. CALIXTO CATAQUIZ,petitioners,
vs.
HON. FRANCISCO DIZON PAO and TONY
CALVENTO, respondents.
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.

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 plaintiff's 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.
SO ORDERED.5
On May 23, 1997, petitioners filed this petition alleging that the following
errors were committed by the respondent trial court:

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 mayor's 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

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.

SAPAGKA'T, ang sugal dito sa lalawigan ng Laguna ay talamak na;

SAPAGKA'T, ang sugal ay nagdudulot ng masasamang impluwensiya
lalo't higit sa mga kabataan;
KUNG KAYA'T DAHIL DITO, at sa mungkahi nina Kgg. Kgd. Juan M.
Unico at Kgg. Kgd. Gat-Ala A. Alatiit, pinangalawahan ni Kgg. Kgd.
Meliton C. Larano at buong pagkakaisang sinangayunan ng lahat ng
dumalo sa pulong;
IPINASIYA, na tutulan gaya ng dito ay mahigpit na TINUTUTULAN ang
ano mang uri ng sugal dito sa lalawigan ng Laguna lalo't 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

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

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 government's 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 respondent's
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

conferred in section thirteen of Act Numbered One thousand four

hundred fifty-nine, as amended, and shall have the authority:

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
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 case, these councils, as delegates, cannot be superior to the
principal or 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 province's Sangguniang Panlalawigan cannot nullify the exercise of
said authority by preventing something already allowed by Congress.

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.

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 mayor's 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 mayor's 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 government's objection to the
lotto, such resolution is valid. This is part of the local government's
autonomy to air its views which may be contrary to that of the national
government's. 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.
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

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.

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 inMagtajas 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
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 Board's 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. . . .
(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 people's 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:
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 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 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 mayor's 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.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 80391 February 28, 1989
SULTAN ALIMBUSAR P. LIMBONA, petitioner,
vs.
CONTE MANGELIN, SALIC ALI, SALINDATO ALI, PILIMPINAS
CONDING, ACMAD TOMAWIS, GERRY TOMAWIS, JESUS ORTIZ,
ANTONIO DELA FUENTE, DIEGO PALOMARES, JR., RAUL
DAGALANGIT, and BIMBO SINSUAT, respondents.
Ambrosio Padilla, Mempin & Reyes Law Offices for petitioner petitioner.
Makabangkit B. Lanto for respondents.

SARMIENTO, J.:
The acts of the Sangguniang Pampook of Region XII are assailed in this
petition. The antecedent facts are as follows:
1. On September 24, 1986, petitioner Sultan Alimbusar Limbona was
appointed as a member of the Sangguniang Pampook, Regional
Autonomous Government, Region XII, representing Lanao del Sur.
2. On March 12, 1987 petitioner was elected Speaker of the Regional
Legislative Assembly or Batasang Pampook of Central Mindanao
(Assembly for brevity).
3. Said Assembly is composed of eighteen (18) members. Two of said
members, respondents Acmad Tomawis and Pakil Dagalangit, filed on
March 23, 1987 with the Commission on Elections their respective
certificates of candidacy in the May 11, 1987 congressional elections for
the district of Lanao del Sur but they later withdrew from the aforesaid
election and thereafter resumed again their positions as members of the
Assembly.
4. On October 21, 1987 Congressman Datu Guimid Matalam, Chairman
of the Committee on Muslim Affairs of the House of Representatives,
invited Mr. Xavier Razul, Pampook Speaker of Region XI, Zamboanga
City and the petitioner in his capacity as Speaker of the Assembly,
Region XII, in a letter which reads:
The Committee on Muslim Affairs well undertake consultations and
dialogues with local government officials, civic, religious organizations

and traditional leaders on the recent and present political developments

and other issues affecting Regions IX and XII.

3. Ali Salindatu
4. Aratuc, Malik

The result of the conference, consultations and dialogues would hopefully

chart the autonomous governments of the two regions as envisioned and
may prod the President to constitute immediately the Regional
Consultative Commission as mandated by the Commission.
You are requested to invite some members of the Pampook Assembly of
your respective assembly on November 1 to 15, 1987, with venue at the
Congress of the Philippines. Your presence, unstinted support and
cooperation is (sic) indispensable.

5. Cajelo, Rene
6. Conding, Pilipinas (sic)
7. Dagalangit, Rakil
8. Dela Fuente, Antonio
9. Ortiz, Jesus

5. Consistent with the said invitation, petitioner sent a telegram to Acting

Secretary Johnny Alimbuyao of the Assembly to wire all Assemblymen
that there shall be no session in November as "our presence in the house
committee hearing of Congress take (sic) precedence over any pending
business in batasang pampook ... ."
6. In compliance with the aforesaid instruction of the petitioner, Acting
Secretary Alimbuyao sent to the members of the Assembly the following
telegram:
TRANSMITTING FOR YOUR INFORMATION AND GUIDANCE
TELEGRAM RECEIVED FROM SPEAKER LIMBONA QUOTE
CONGRESSMAN JIMMY MATALAM CHAIRMAN OF THE HOUSE
COMMITTEE ON MUSLIM AFFAIRS REQUESTED ME TO ASSIST
SAID COMMITTEE IN THE DISCUSSION OF THE PROPOSED
AUTONOMY ORGANIC NOV. 1ST TO 15. HENCE WERE ALL
ASSEMBLYMEN THAT THERE SHALL BE NO SESSION IN
NOVEMBER AS OUR PRESENCE IN THE HOUSE COMMITTEE
HEARING OF CONGRESS TAKE PRECEDENCE OVER ANY PENDING
BUSINESS IN BATASANG PAMPOOK OF MATALAM FOLLOWS
UNQUOTE REGARDS.
7. On November 2, 1987, the Assembly held session in defiance of
petitioner's advice, with the following assemblymen present:
1. Sali, Salic
2. Conding, Pilipinas (sic)
3. Dagalangit, Rakil
4. Dela Fuente, Antonio
5. Mangelen, Conte
6. Ortiz, Jesus
7. Palomares, Diego
8. Sinsuat, Bimbo
9. Tomawis, Acmad
10. Tomawis, Jerry
After declaring the presence of a quorum, the Speaker Pro-Tempore was
authorized to preside in the session. On Motion to declare the seat of the
Speaker vacant, all Assemblymen in attendance voted in the affirmative,
hence, the chair declared said seat of the Speaker vacant. 8. On
November 5, 1987, the session of the Assembly resumed with the
following Assemblymen present:
1. Mangelen Conte-Presiding Officer
2. Ali Salic

10 Palomares, Diego
11. Quijano, Jesus
12. Sinsuat, Bimbo
13. Tomawis, Acmad
14. Tomawis, Jerry
An excerpt from the debates and proceeding of said session reads:
HON. DAGALANGIT: Mr. Speaker, Honorable Members of the House,
with the presence of our colleagues who have come to attend the session
today, I move to call the names of the new comers in order for them to
cast their votes on the previous motion to declare the position of the
Speaker vacant. But before doing so, I move also that the designation of
the Speaker Pro Tempore as the Presiding Officer and Mr. Johnny
Evangelists as Acting Secretary in the session last November 2, 1987 be
reconfirmed in today's session.
HON. SALIC ALI: I second the motions.
PRESIDING OFFICER: Any comment or objections on the two motions
presented? Me chair hears none and the said motions are approved. ...
Twelve (12) members voted in favor of the motion to declare the seat of
the Speaker vacant; one abstained and none voted against. 1
Accordingly, the petitioner prays for judgment as follows:
WHEREFORE, petitioner respectfully prays that(a) This Petition be given due course;
(b) Pending hearing, a restraining order or writ of preliminary injunction
be issued enjoining respondents from proceeding with their session to be
held on November 5, 1987, and on any day thereafter;
(c) After hearing, judgment be rendered declaring the proceedings held
by respondents of their session on November 2, 1987 as null and void;
(d) Holding the election of petitioner as Speaker of said Legislative
Assembly or Batasan Pampook, Region XII held on March 12, 1987 valid
and subsisting, and
(e) Making the injunction permanent.
Petitioner likewise prays for such other relief as may be just and
equitable. 2
Pending further proceedings, this Court, on January 19, 1988, received a
resolution filed by the Sangguniang Pampook, "EXPECTING
ALIMBUSAR P. LIMBONA FROM MEMBERSHIP OF THE
SANGGUNIANG PAMPOOK AUTONOMOUS REGION XII," 3 on the

grounds, among other things, that the petitioner "had caused to be

prepared and signed by him paying [sic] the salaries and emoluments of
Odin Abdula, who was considered resigned after filing his Certificate of
Candidacy for Congressmen for the First District of Maguindanao in the
last May 11, elections. . . and nothing in the record of the Assembly will
show that any request for reinstatement by Abdula was ever made . .
." 4 and that "such action of Mr. Lim bona in paying Abdula his salaries
and emoluments without authority from the Assembly . . . constituted a
usurpation of the power of the Assembly," 5 that the petitioner "had
recently caused withdrawal of so much amount of cash from the
Assembly resulting to the non-payment of the salaries and emoluments of
some Assembly [sic]," 6 and that he had "filed a case before the Supreme
Court against some members of the Assembly on question which should
have been resolved within the confines of the Assembly," 7 for which the
respondents now submit that the petition had become "moot and
academic". 8
The first question, evidently, is whether or not the expulsion of the
petitioner (pending litigation) has made the case moot and academic.
We do not agree that the case has been rendered moot and academic by
reason simply of the expulsion resolution so issued. For, if the petitioner's
expulsion was done purposely to make this petition moot and academic,
and to preempt the Court, it will not make it academic.
On the ground of the immutable principle of due process alone, we hold
that the expulsion in question is of no force and effect. In the first place,
there is no showing that the Sanggunian had conducted an investigation,
and whether or not the petitioner had been heard in his defense,
assuming that there was an investigation, or otherwise given the
opportunity to do so. On the other hand, what appears in the records is
an admission by the Assembly (at least, the respondents) that "since
November, 1987 up to this writing, the petitioner has not set foot at the
Sangguniang Pampook." 9 "To be sure, the private respondents aver that
"[t]he Assemblymen, in a conciliatory gesture, wanted him to come to
Cotabato City," 10 but that was "so that their differences could be
threshed out and settled."11 Certainly, that avowed wanting or desire to
thresh out and settle, no matter how conciliatory it may be cannot be a
substitute for the notice and hearing contemplated by law.
While we have held that due process, as the term is known in
administrative law, does not absolutely require notice and that a party
need only be given the opportunity to be heard, 12 it does not appear
herein that the petitioner had, to begin with, been made aware that he
had in fact stood charged of graft and corruption before his collegues. It
cannot be said therefore that he was accorded any opportunity to rebut
their accusations. As it stands, then, the charges now levelled amount to
mere accusations that cannot warrant expulsion.
In the second place, (the resolution) appears strongly to be a bare act of
vendetta by the other Assemblymen against the petitioner arising from
what the former perceive to be abduracy on the part of the latter. Indeed,
it (the resolution) speaks of "a case [having been filed] [by the petitioner]
before the Supreme Court . . . on question which should have been
resolved within the confines of the Assemblyman act which some
members claimed unnecessarily and unduly assails their integrity and
character as representative of the people" 13 an act that cannot possibly
justify expulsion. Access to judicial remedies is guaranteed by the
Constitution, 14 and, unless the recourse amounts to malicious
prosecution, no one may be punished for seeking redress in the courts.
We therefore order reinstatement, with the caution that should the past
acts of the petitioner indeed warrant his removal, the Assembly is
enjoined, should it still be so minded, to commence proper proceedings
therefor in line with the most elementary requirements of due process.
And while it is within the discretion of the members of the Sanggunian to
punish their erring colleagues, their acts are nonetheless subject to the

moderating band of this Court in the event that such discretion is

exercised with grave abuse.
It is, to be sure, said that precisely because the Sangguniang
Pampook(s) are "autonomous," the courts may not rightfully intervene in
their affairs, much less strike down their acts. We come, therefore, to the
second issue: Are the so-called autonomous governments of Mindanao,
as they are now constituted, subject to the jurisdiction of the national
courts? In other words, what is the extent of self-government given to the
two autonomous governments of Region IX and XII?
The autonomous governments of Mindanao were organized in Regions
IX and XII by Presidential Decree No. 161815 promulgated on July 25,
1979. Among other things, the Decree established "internal
autonomy" 16 in the two regions "[w]ithin the framework of the national
sovereignty and territorial integrity of the Republic of the Philippines and
its Constitution," 17 with legislative and executive machinery to exercise
the powers and responsibilities 18 specified therein.
It requires the autonomous regional governments to "undertake all
internal administrative matters for the respective regions," 19 except to
"act on matters which are within the jurisdiction and competence of the
National Government," 20 "which include, but are not limited to, the
following:
(1) National defense and security;
(2) Foreign relations;
(3) Foreign trade;
(4) Currency, monetary affairs, foreign exchange, banking and quasibanking, and external borrowing,
(5) Disposition, exploration, development, exploitation or utilization of all
natural resources;
(6) Air and sea transport
(7) Postal matters and telecommunications;
(8) Customs and quarantine;
(9) Immigration and deportation;
(10) Citizenship and naturalization;
(11) National economic, social and educational planning; and
(12) General auditing. 21
In relation to the central government, it provides that "[t]he President shall
have the power of general supervision and control over the Autonomous
Regions ..." 22
Now, autonomy is either decentralization of administration or
decentralization of power. There is decentralization of administration
when the central government delegates administrative powers to political
subdivisions in order to broaden the base of government power and in
the process to make local governments "more responsive and
accountable," 23 "and ensure their fullest development as self-reliant
communities and make them more effective partners in the pursuit of
national development and social progress." 24 At the same time, it
relieves the central government of the burden of managing local affairs
and enables it to concentrate on national concerns. The President
exercises "general supervision" 25 over them, but only to "ensure that
local affairs are administered according to law." 26 He has no control
over their acts in the sense that he can substitute their judgments with his
own. 27

Decentralization of power, on the other hand, involves an abdication of

political power in the favor of local governments units declare to be
autonomous . In that case, the autonomous government is free to chart
its own destiny and shape its future with minimum intervention from
central authorities. According to a constitutional author, decentralization
of power amounts to "self-immolation," since in that event, the
autonomous government becomes accountable not to the central
authorities but to its constituency. 28
But the question of whether or not the grant of autonomy Muslim
Mindanao under the 1987 Constitution involves, truly, an effort to
decentralize power rather than mere administration is a question foreign
to this petition, since what is involved herein is a local government unit
constituted prior to the ratification of the present Constitution. Hence, the
Court will not resolve that controversy now, in this case, since no
controversy in fact exists. We will resolve it at the proper time and in the
proper case.
Under the 1987 Constitution, local government units enjoy autonomy in
these two senses, thus:
Section 1. The territorial and political subdivisions of the Republic of the
Philippines are the provinces, cities, municipalities, and barangays. Here
shall be autonomous regions in Muslim Mindanao ,and the Cordilleras as
hereinafter provided. 29
Sec. 2. The territorial and political subdivisions shall enjoy local
autonomy. 30
xxx xxx xxx
See. 15. Mere shall be created autonomous regions in Muslim Mindanao
and in the Cordilleras consisting of provinces, cities, municipalities, and
geographical areas sharing common and distinctive historical and cultural
heritage, economic and social structures, and other relevant
characteristics within the framework of this Constitution and the national
sovereignty as well as territorial integrity of the Republic of the
Philippines. 31
An autonomous government that enjoys autonomy of the latter category
[CONST. (1987), art. X, sec. 15.] is subject alone to the decree of the
organic act creating it and accepted principles on the effects and limits of
"autonomy." On the other hand, an autonomous government of the
former class is, as we noted, under the supervision of the national
government acting through the President (and the Department of Local
Government).32 If the Sangguniang Pampook (of Region XII), then, is
autonomous in the latter sense, its acts are, debatably beyond the
domain of this Court in perhaps the same way that the internal acts, say,
of the Congress of the Philippines are beyond our jurisdiction. But if it is
autonomous in the former category only, it comes unarguably under our
jurisdiction. An examination of the very Presidential Decree creating the
autonomous governments of Mindanao persuades us that they were
never meant to exercise autonomy in the second sense, that is, in which
the central government commits an act of self-immolation. Presidential
Decree No. 1618, in the first place, mandates that "[t]he President shall
have the power of general supervision and control over Autonomous
Regions." 33 In the second place, the Sangguniang Pampook, their
legislative arm, is made to discharge chiefly administrative services, thus:
SEC. 7. Powers of the Sangguniang Pampook. The Sangguniang
Pampook shall exercise local legislative powers over regional affairs
within the framework of national development plans, policies and goals, in
the following areas:
(1) Organization of regional administrative system;
(2) Economic, social and cultural development of the Autonomous
Region;

(3) Agricultural, commercial and industrial programs for the Autonomous

Region;
(4) Infrastructure development for the Autonomous Region;
(5) Urban and rural planning for the Autonomous Region;
(6) Taxation and other revenue-raising measures as provided for in this
Decree;
(7) Maintenance, operation and administration of schools established by
the Autonomous Region;
(8) Establishment, operation and maintenance of health, welfare and
other social services, programs and facilities;
(9) Preservation and development of customs, traditions, languages and
culture indigenous to the Autonomous Region; and
(10) Such other matters as may be authorized by law,including the
enactment of such measures as may be necessary for the promotion of
the general welfare of the people in the Autonomous Region.
The President shall exercise such powers as may be necessary to assure
that enactment and acts of the Sangguniang Pampook and the Lupong
Tagapagpaganap ng Pook are in compliance with this Decree, national
legislation, policies, plans and programs.
The Sangguniang Pampook shall maintain liaison with the Batasang
Pambansa. 34
Hence, we assume jurisdiction. And if we can make an inquiry in the
validity of the expulsion in question, with more reason can we review the
petitioner's removal as Speaker.
Briefly, the petitioner assails the legality of his ouster as Speaker on the
grounds that: (1) the Sanggunian, in convening on November 2 and 5,
1987 (for the sole purpose of declaring the office of the Speaker vacant),
did so in violation of the Rules of the Sangguniang Pampook since the
Assembly was then on recess; and (2) assuming that it was valid, his
ouster was ineffective nevertheless for lack of quorum.
Upon the facts presented, we hold that the November 2 and 5, 1987
sessions were invalid. It is true that under Section 31 of the Region XII
Sanggunian Rules, "[s]essions shall not be suspended or adjourned
except by direction of the Sangguniang Pampook," 35 but it provides
likewise that "the Speaker may, on [sic] his discretion, declare a recess of
"short intervals." 36 Of course, there is disagreement between the
protagonists as to whether or not the recess called by the petitioner
effective November 1 through 15, 1987 is the "recess of short intervals"
referred to; the petitioner says that it is while the respondents insist that,
to all intents and purposes, it was an adjournment and that "recess" as
used by their Rules only refers to "a recess when arguments get heated
up so that protagonists in a debate can talk things out informally and
obviate dissenssion [sic] and disunity. 37 The Court agrees with the
respondents on this regard, since clearly, the Rules speak of "short
intervals." Secondly, the Court likewise agrees that the Speaker could not
have validly called a recess since the Assembly had yet to convene on
November 1, the date session opens under the same Rules. 38 Hence,
there can be no recess to speak of that could possibly interrupt any
session. But while this opinion is in accord with the respondents' own, we
still invalidate the twin sessions in question, since at the time the
petitioner called the "recess," it was not a settled matter whether or not he
could. do so. In the second place, the invitation tendered by the
Committee on Muslim Affairs of the House of Representatives provided a
plausible reason for the intermission sought. Thirdly, assuming that a
valid recess could not be called, it does not appear that the respondents
called his attention to this mistake. What appears is that instead, they

opened the sessions themselves behind his back in an apparent act of

mutiny. Under the circumstances, we find equity on his side. For this
reason, we uphold the "recess" called on the ground of good faith.
It does not appear to us, moreover, that the petitioner had resorted to the
aforesaid "recess" in order to forestall the Assembly from bringing about
his ouster. This is not apparent from the pleadings before us. We are
convinced that the invitation was what precipitated it.
In holding that the "recess" in question is valid, we are not to be taken as
establishing a precedent, since, as we said, a recess can not be validly
declared without a session having been first opened. In upholding the
petitioner herein, we are not giving him a carte blanche to order recesses
in the future in violation of the Rules, or otherwise to prevent the lawful
meetings thereof.
Neither are we, by this disposition, discouraging the Sanggunian from
reorganizing itself pursuant to its lawful prerogatives. Certainly, it can do
so at the proper time. In the event that be petitioner should initiate
obstructive moves, the Court is certain that it is armed with enough
coercive remedies to thwart them. 39
In view hereof, we find no need in dwelling on the issue of quorum.
WHEREFORE, premises considered, the petition is GRANTED. The
Sangguniang Pampook, Region XII, is ENJOINED to (1) REINSTATE the
petitioner as Member, Sangguniang Pampook, Region XII; and (2)
REINSTATE him as Speaker thereof. No costs.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 149848

November 25, 2004

ARSADI M. DISOMANGCOP and RAMIR M.

DIMALOTANG, petitioners,
vs.
THE SECRETARY OF THE DEPARTMENT OF PUBLIC WORKS AND
HIGHWAYS SIMEON A. DATUMANONG and THE SECRETARY OF
BUDGET and MANAGEMENT EMILIA T. BONCODIN, respondents.
DECISION
TINGA, J.:
At stake in the present case is the fate of regional autonomy for Muslim
Mindanao which is the epoch-making, Constitution-based project for
achieving national unity in diversity.
Challenged in the instant petition for certiorari, prohibition and mandamus
with prayer for a temporary restraining order and/or writ of preliminary
injunction1 (Petition) are the constitutionality and validity of Republic Act
No. 8999 (R.A. 8999),2 entitled "An Act Establishing An Engineering
District in the First District of the Province of Lanao del Sur and
Appropriating Funds Therefor," and Department of Public Works and
Highways (DPWH) Department Order No. 119 (D.O. 119)3 on the
subject, "Creation of Marawi Sub-District Engineering Office."
The Background
The uncontested legal and factual antecedents of the case follow.
For the first time in its history after three Constitutions, the Philippines
ordained the establishment of regional autonomy with the adoption of the

1987 Constitution. Sections 14 and 15, Article X mandate the creation of

autonomous regions in Muslim Mindanao and in the Cordilleras. Section
15 specifically provides that "[t]here shall be created autonomous regions
in Muslim Mindanao and in the Cordilleras consisting of provinces, cities,
municipalities, and geographical areas sharing common and distinctive
historical and cultural heritage, economic and social structures, and other
relevant characteristics within the framework of this Constitution and the
national sovereignty as well as territorial integrity of the Republic of the
Philippines." To effectuate this mandate, the Charter devotes a number of
provisions under Article X.5
Pursuant to the constitutional mandate, Republic Act No. 6734 (R.A.
6734), entitled "An Act Providing for An Organic Act for the Autonomous
Region in Muslim Mindanao," was enacted and signed into law on 1
August 1989. The law called for the holding of a plebiscite in the
provinces of Basilan, Cotabato, Davao del Sur, Lanao del Norte, Lanao
del Sur, Maguindanao, Palawan, South Cotabato, Sultan Kudarat, Sulu,
Tawi-Tawi, Zamboanga del Norte, and Zamboanga del Sur, and the cities
of Cotabato, Dapitan, Dipolog, General Santos, Iligan, Marawi, Pagadian,
Puerto Princesa and Zamboanga.6 In the ensuing plebiscite held on 19
November 1989, only four (4) provinces voted for the creation of an
autonomous region, namely: Lanao del Sur, Maguindanao, Sulu and
Tawi-Tawi. These provinces became the Autonomous Region in Muslim
Mindanao (ARMM).7 The law contains elaborate provisions on the
powers of the Regional Government and the areas of jurisdiction which
are reserved for the National Government.8
In accordance with R.A. 6734, then President Corazon C. Aquino issued
on 12 October 1990, Executive Order No. 426 (E.O. 426), entitled
"Placing the Control and Supervision of the Offices of the Department of
Public Works and Highways within the Autonomous Region in Muslim
Mindanao under the Autonomous Regional Government, and for other
purposes." Sections 1 to 39 of the Executive Order are its operative
provisions.
ARMM was formally organized on 6 November 1990. President Corazon
C. Aquino flew to Cotabato, the seat of the Regional Government, for the
inauguration. At that point, she had already signed seven (7) Executive
Orders devolving to ARMM the powers of seven (7) cabinet departments,
namely: (1) local government; (2) labor and employment; (3) science and
technology; (4) public works and highways; (5) social welfare and
development; (6) tourism; and (7) environment and national resources.10
Nearly nine (9) years later, on 20 May 1999, then Department of Public
Works and Highways (DPWH) Secretary Gregorio R. Vigilar issued D.O.
119 which reads, thus:
Subject: Creation of Marawi Sub-District Engineering Office
Pursuant to Sections 6 and 25 of Executive Order No. 124 dated 30
January 1987, there is hereby created a DPWH Marawi Sub-District
Engineering Office which shall have jurisdiction over all national
infrastructure projects and facilities under the DPWH within Marawi City
and the province of Lanao del Sur. The headquarters of the Marawi SubDistrict Engineering Office shall be at the former quarters of the Marawi
City Engineering Office.
Personnel of the above-mentioned Sub-District Engineering Office shall
be made up of employees of the National Government Section of the
former Marawi City Engineering Office who are now assigned with the
Iligan City Sub-District Engineering Office as may be determined by the
DPWH Region XII Regional Director. (Emphasis supplied)
Almost two (2) years later, on 17 January 2001, then President Joseph E.
Estrada approved and signed into law R.A. 8999. The text of the law
reads:

AN ACT ESTABLISHING AN ENGINEERING DISTRICT IN THE FIRST

DISTRICT OF THE PROVINCE OF LANAO DEL SUR AND
APPROPRIATING FUNDS THEREFOR
Be it enacted by the Senate and House of Representatives of the
Philippines in Congress assembled:
SECTION 1. The City of Marawi and the municipalities comprising the
First District of the Province of Lanao del Sur are hereby constituted into
an engineering district to be known as the First Engineering District of the
Province of Lanao del Sur.
SEC. 2. The office of the engineering district hereby created shall be
established in Marawi City, Province of Lanao del Sur.
SEC. 3. The amount necessary to carry out the provisions of this Act
shall be included in the General Appropriations Act of the year following
its enactment into law. Thereafter, such sums as may be necessary for
the maintenance and continued operation of the engineering district office
shall be included in the annual General Appropriations Act.
SEC. 4. This Act shall take effect upon its approval. (Emphasis supplied)
Congress later passed Republic Act No. 9054 (R.A. 9054), entitled "An
Act to Strengthen and Expand the Organic Act for the Autonomous
Region in Muslim Mindanao, Amending for the Purpose Republic Act No.
6734, entitled An Act Providing for the Autonomous Region in Muslim
Mindanao, as Amended." Like its forerunner, R.A. 9054 contains detailed
provisions on the powers of the Regional Government and the retained
areas of governance of the National Government.11
R.A. 9054 lapsed into law12 on 31 March 2001. It was ratified in a
plebiscite held on 14 August 2001. The province of Basilan and the City
of Marawi also voted to join ARMM on the same date. R.A. 6734 and
R.A. 9054 are collectively referred to as the ARMM Organic Acts.

Engineering District in Lanao del Sur to implement public works projects

in Lanao del Sur.15
To support their petition, petitioners allege that D.O. 119 was issued with
grave abuse of discretion and that it violates the constitutional autonomy
of the ARMM. They point out that the challenged Department Order has
tasked the Marawi Sub-District Engineering Office with functions that
have already been devolved to the DPWH-ARMM First Engineering
District in Lanao del Sur.16
Petitioners also contend that R.A. 8999 is a piece of legislation that was
not intelligently and thoroughly studied, and that the explanatory note to
House Bill No. 995 (H.B. 995) from which the law originated is
questionable. Petitioners assert as well that prior to the sponsorship of
the law, no public hearing nor consultation with the DPWH-ARMM was
made. The House Committee on Public Works and Highways
(Committee) failed to invite a single official from the affected agency.
Finally, petitioners argue that the law was skillfully timed for signature by
former President Joseph E. Estrada during the pendency of the
impeachment proceedings.17
In its resolution of 8 October 2001, the Court required respondents to file
their comment.18 In compliance, respondents DPWH Secretary and DBM
Secretary, through the Solicitor General, filed on 7 January 2002, their
Comment.
In their Comment,19 respondents, through the Office of the Solicitor
General, maintain the validity of D.O. 119, arguing that it was issued in
accordance with Executive Order No. 124 (E.O. 124).20 In defense of the
constitutionality of R.A. 8999, they submit that the powers of the
autonomous regions did not diminish the legislative power of
Congress.21 Respondents also contend that the petitioners have no
locus standi or legal standing to assail the constitutionality of the law and
the department order. They note that petitioners have no personal stake
in the outcome of the controversy.22

On 23 July 2001, petitioners Arsadi M. Disomangcop (Disomangcop) and

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

Asserting their locus standi, petitioners in their Memorandum23 point out

that they will suffer actual injury as a result of the enactments complained
of.24

Consequently, petitioners Disomangcop and Dimalotang filed the instant

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

First, the jurisdictional predicates.

Petitioners seek the following principal reliefs: (1) to annul and set aside
D.O. 119; (2) to prohibit respondent DPWH Secretary from implementing
D.O. 119 and R.A. 8999 and releasing funds for public works projects
intended for Lanao del Sur and Marawi City to the Marawi Sub-District
Engineering Office and other administrative regions of DPWH; and (3) to
compel the Secretary of the Department of Budget and Management
(DBM) to release all funds for public works projects intended for Marawi
City and the First District of Lanao del Sur to the DPWH-ARMM First
Engineering District in Lanao del Sur only; and to compel respondent
DPWH Secretary to let the DPWH-ARMM First Engineering District in
Lanao del Sur implement all public works projects within its jurisdictional
area.14
The petition includes an urgent application for the issuance of a
temporary restraining order (TRO) and, after hearing, a writ of preliminary
injunction, to enjoin respondent DBM Secretary from releasing funds for
public works projects in Lanao del Sur to entities other than the DPWHARMM First Engineering District in Lanao del Sur, and also to restrain the
DPWH Secretary from allowing others besides the DPWH-ARMM First

Jurisdictional Considerations

The 1987 Constitution is explicit in defining the scope of judicial power. It

establishes the authority of the courts to determine in an appropriate
action the validity of acts of the political departments. It speaks of judicial
prerogative in terms of duty.25
Jurisprudence has laid down the following requisites for the exercise of
judicial power: First, there must be before the Court an actual case calling
for the exercise of judicial review. Second, the question before the Court
must be ripe for adjudication. Third, the person challenging the validity of
the act must have standing to challenge. Fourth, the question of
constitutionality must have been raised at the earliest opportunity. Fifth,
the issue of constitutionality must be the very lis mota of the case.26
In seeking to nullify acts of the legislature and the executive department
on the ground that they contravene the Constitution, the petition no doubt
raises a justiciable controversy. As held in Taada v. Angara,27 "where
an action of the legislative branch is seriously alleged to have infringed
the Constitution, it becomes not only the right but in fact the duty of the
judiciary to settle the dispute." But in deciding to take jurisdiction over this
petition questioning acts of the political departments of government, the
Court will not review the wisdom, merits, or propriety thereof, but will
strike them down only on either of two grounds: (1) unconstitutionality or
illegality and (2) grave abuse of discretion.28

For an abuse to be grave, the power must be exercised in an arbitrary or

despotic manner by reason of passion or personal hostility. The abuse of
discretion must be patent and gross as to amount to an evasion of a
positive duty, or a virtual refusal to perform the duty enjoined or to act in
contemplation of law. There is grave abuse of discretion when
respondent acts in a capricious or whimsical manner in the exercise of its
judgment as to be equivalent to lack of jurisdiction.29
The challenge to the legal standing of petitioners cannot succeed. Legal
standing or locus standi is defined as a personal and substantial interest
in the case such that the party has sustained or will sustain direct injury
as a result of the governmental act that is being challenged. The term
"interest" means a material interest, an interest in issue affected by the
decree, as distinguished from a mere interest in the question involved, or
a mere incidental interest.30
A party challenging the constitutionality of a law, act, or statute must
show "not only that the law is invalid, but also that he has sustained or is
in immediate, or imminent danger of sustaining some direct injury as a
result of its enforcement, and not merely that he suffers thereby in some
indefinite way." He must show that he has been, or is about to be, denied
some right or privilege to which he is lawfully entitled, or that he is about
to be subjected to some burdens or penalties by reason of the statute
complained of.31
But following the new trend, this Court is inclined to take cognizance of a
suit although it does not satisfy the requirement of legal standing when
paramount interests are involved. In several cases, the Court has
adopted a liberal stance on the locus standi of a petitioner where the
petitioner is able to craft an issue of transcendental significance to the
people.32
In the instant case, petitioner Disomangcop holds the position of
Engineer IV. When he filed this petition, he was the Officer-in-Charge,
Office of the District Engineer of the First Engineering District of DPWHARMM, Lanao del Sur. On the other hand, petitioner Dimalotang is an
Engineer II and President of the rank and file employees also of the First
Engineering District of DPWH-ARMM in Lanao del Sur. Both are charged
with the duty and responsibility of supervising and implementing all public
works projects to be undertaken and being undertaken in Lanao del Sur
which is the area of their jurisdiction.33
It is thus not far-fetched that the creation of the Marawi Sub-District
Engineering Office under D.O. 119 and the creation of and appropriation
of funds to the First Engineering District of Lanao del Sur as directed
under R.A. 8999 will affect the powers, functions and responsibilities of
the petitioners and the DPWH-ARMM. As the two offices have apparently
been endowed with functions almost identical to those of DPWH-ARMM
First Engineering District in Lanao del Sur, it is likely that petitioners are
in imminent danger of being eased out of their duties and, not remotely,
even their jobs. Their material and substantial interests will definitely be
prejudiced by the enforcement of D.O. 119 and R.A. 8999. Such injury is
direct and immediate. Thus, they can legitimately challenge the validity of
the enactments subject of the instant case.

the lis mota of the case, or if the case can be disposed of or settled on
other grounds.34
The plain truth is the challenged law never became operative and was
superseded or repealed by a subsequent enactment.
The ARMM Organic Acts are deemed a part of the regional autonomy
scheme. While they are classified as statutes, the Organic Acts are more
than ordinary statutes because they enjoy affirmation by a
plebiscite.35Hence, the provisions thereof cannot be amended by an
ordinary statute, such as R.A. 8999 in this case. The amendatory law has
to be submitted to a plebiscite.
We quote excerpts of the deliberations of the Constitutional Commission:
FR. BERNAS. Yes, that is the reason I am bringing this up. This thing
involves some rather far-reaching consequences also in relation to the
issue raised by Commissioner Romulo with respect to federalism. Are we,
in effect, creating new categories of laws? Generally, we have statutes
and constitutional provisions. Is this organic act equivalent to a
constitutional provision? If it is going to be equivalent to a constitutional
provision, it would seem to me that the formulation of the provisions of
the organic act will have to be done by the legislature, acting as a
constituent assembly, and therefore, subject to the provisions of the
Article on Amendments. That is the point that I am trying to bring up. In
effect, if we opt for federalism, it would really involve an act of the
National Assembly or Congress acting as a constituent assembly and
present amendments to this Constitution, and the end product itself would
be a constitutional provision which would only be amendable according to
the processes indicated in the Constitution.
MR. OPLE. Madam President, may I express my personal opinion in this
respect.
I think to require Congress to act as a constituent body before enacting
an organic act would be to raise an autonomous region to the same level
as the sovereign people of the whole country. And I think the powers of
the Congress should be quite sufficient in enacting a law, even if it is now
exalted to the level of an organic act for the purpose of providing a basic
law for an autonomous region without having to transform itself into a
constituent assembly. We are dealing still with one subordinate
subdivision of the State even if it is now vested with certain autonomous
powers on which its own legislature can pass laws.
FR. BERNAS. So the questions I have raised so far with respect to this
organic act are: What segment of the population will participate in the
plebiscite? In what capacity would the legislature be acting when it
passes this? Will it be a constituent assembly or merely a legislative
body? What is the nature, therefore, of this organic act in relation to
ordinary statutes and the Constitution? Finally, if we are going to amend
this organic act, what process will be followed?
MR. NOLLEDO. May I answer that, please, in the light of what is now
appearing in our report.

We agree in part.

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

Republic Act No. 8999

FR. BERNAS. But with plebiscite again.

At the outset, let it be made clear that it is not necessary to declare R.A.
No. 8999 unconstitutional for the adjudication of this case. The accepted
rule is that the Court will not resolve a constitutional question unless it is

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

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

Although R.A. 9054 was enacted later, it reaffirmed the imperativeness of

the plebiscite requirement.37 In fact, R.A. 9054 itself, being the second or
later ARMM Organic Act, was subjected to and ratified in a plebiscite.
The first ARMM Organic Act, R.A. 6074, as implemented by E.O. 426,
devolved the functions of the DPWH in the ARMM which includes Lanao
del Sur (minus Marawi City at the time)38 to the Regional Government.
By creating an office with previously devolved functions, R.A. 8999, in
essence, sought to amend R.A. 6074. The amendatory law should
therefore first obtain the approval of the people of the ARMM before it
could validly take effect. Absent compliance with this requirement, R.A.
8999 has not even become operative.
From another perspective, R.A. 8999 was repealed and superseded by
R.A. 9054. Where a statute of later date clearly reveals an intention on
the part of the legislature to abrogate a prior act on the subject, that
intention must be given effect.
Of course, the intention to repeal must be clear and manifest.39 Implied
repeal by irreconcilable inconsistency takes place when the two statutes
cover the same subject matter; they are clearly inconsistent and
incompatible with each other that they cannot be reconciled or
harmonized; and both cannot be given effect, that is, that one law cannot
be enforced without nullifying the other.40
The Court has also held that statutes should be construed in light of the
objective to be achieved and the evil or mischief to be suppressed, and
they should be given such construction as will advance the object,
suppress the mischief and secure the benefits intended.41
R.A. 9054 is anchored on the 1987 Constitution. It advances the
constitutional grant of autonomy by detailing the powers of the ARG
covering, among others, Lanao del Sur and Marawi City, one of which is
its jurisdiction over regional urban and rural planning. R.A. 8999,
however, ventures to reestablish the National Government's jurisdiction
over infrastructure programs in Lanao del Sur. R.A. 8999 is patently
inconsistent with R.A. 9054, and it destroys the latter law's objective.
Clearly, R.A. 8999 is antagonistic to and cannot be reconciled with both
ARMM Organic Acts, R.A. 6734 and R.A. 9054. The kernel of the
antagonism and disharmony lies in the regional autonomy which the
ARMM Organic Acts ordain pursuant to the Constitution. On the other
hand, R.A. 8999 contravenes true decentralization which is the essence
of regional autonomy.
Regional Autonomy Under

being open for minority representation. As a result, democracy becomes

an irony to the minority group.47
Several commissioners echoed the pervasive sentiment in the plenary
sessions in their own inimitable way. Thus, Commissioner Blas Ople
referred to the recognition that the Muslim Mindanao and the Cordilleras
"do not belong to the dominant national community" as the justification for
conferring on them a "measure of legal self-sufficiency, meaning selfgovernment, so that they will flourish politically, economically and
culturally," with the hope that after achieving parity with the rest of the
country they would "give up their own autonomous region in favor of
joining the national mainstream."48 For his part, the Muslim delegate,
Commissioner Ahmad Alonto, spoke of the diversity of cultures as the
framework for nation-building.49 Finally, excerpts of the poignant plea of
Commissioner Ponciano Bennagen deserve to be quoted verbatim:
. . . They see regional autonomy as the answer to their centuries of
struggle against oppression and exploitation. For so long, their names
and identities have been debased. Their ancestral lands have been
ransacked for their treasures, for their wealth. Their cultures have been
defiled, their very lives threatened, and worse, extinguished, all in the
name of national development; all in the name of public interest; all in the
name of common good; all in the name of the right to property; all in the
name of Regalian Doctrine; all in the name of national security. These
phrases have meant nothing to our indigenous communities, except for
the violation of their human rights.
...
Honorable Commissioners, we wish to impress upon you the gravity of
the decision to be made by every single one of us in this Commission.
We have the overwhelming support of the Bangsa Moro and the
Cordillera Constitution. By this we mean meaningful and authentic
regional autonomy. We propose that we have a separate Article on the
autonomous regions for the Bangsa Moro and Cordillera people clearly
spelled out in this Constitution, instead of prolonging the agony of their
vigil and their struggle. This, too is a plea for national peace. Let us not
pass the buck to the Congress to decide on this. Let us not wash our
hands of our responsibility to attain national unity and peace and to settle
this problem and rectify past injustices, once and for all.50
The need for regional autonomy is more pressing in the case of the
Filipino Muslims and the Cordillera people who have been fighting for it.
Their political struggle highlights their unique cultures and the
unresponsiveness of the unitary system to their aspirations.51 The
Moros' struggle for self-determination dates as far back as the Spanish
conquest in the Philippines. Even at present, the struggle goes on.52

R.A. 6734 and R.A. 9054

The 1987 Constitution mandates regional autonomy to give a bold and
unequivocal answer to the cry for a meaningful, effective and forceful
autonomy.42 According to Commissioner Jose Nolledo, Chairman of the
Committee which drafted the provisions, it "is an indictment against the
status quo of a unitary system that, to my mind, has ineluctably tied the
hands of progress in our country . . . our varying regional characteristics
are factors to capitalize on to attain national strength through
decentralization."43
The idea behind the Constitutional provisions for autonomous regions is
to allow the separate development of peoples with distinctive cultures and
traditions.44 These cultures, as a matter of right, must be allowed to
flourish.45
Autonomy, as a national policy, recognizes the wholeness of the
Philippine society in its ethnolinguistic, cultural, and even religious
diversities. It strives to free Philippine society of the strain and wastage
caused by the assimilationist approach.46 Policies emanating from the
legislature are invariably assimilationist in character despite channels

Perforce, regional autonomy is also a means towards solving existing

serious peace and order problems and secessionist movements.
Parenthetically, autonomy, decentralization and regionalization, in
international law, have become politically acceptable answers to
intractable problems of nationalism, separatism, ethnic conflict and threat
of secession.53
However, the creation of autonomous regions does not signify the
establishment of a sovereignty distinct from that of the Republic, as it can
be installed only "within the framework of this Constitution and the
national sovereignty as well as territorial integrity of the Republic of the
Philippines."54
Regional autonomy is the degree of self-determination exercised by the
local government unit vis--vis the central government.
In international law, the right to self-determination need not be
understood as a right to political separation, but rather as a complex net
of legal-political relations between a certain people and the state
authorities. It ensures the right of peoples to the necessary level of

autonomy that would guarantee the support of their own cultural identity,
the establishment of priorities by the community's internal decisionmaking processes and the management of collective matters by
themselves.55

lives were lost in that struggle in Mindanao, and to this day, the
Cordilleras is being shaken by an armed struggle as well as a peaceful
and militant struggle.
...

If self-determination is viewed as an end in itself reflecting a preference

for homogeneous, independent nation-states, it is incapable of universal
application without massive disruption. However, if self-determination is
viewed as a means to an endthat end being a democratic, participatory
political and economic system in which the rights of individuals and the
identity of minority communities are protectedits continuing validity is
more easily perceived.56
Regional autonomy refers to the granting of basic internal government
powers to the people of a particular area or region with least control and
supervision from the central government.57
The objective of the autonomy system is to permit determined groups,
with a common tradition and shared social-cultural characteristics, to
develop freely their ways of life and heritage, exercise their rights, and be
in charge of their own business. This is achieved through the
establishment of a special governance regime for certain member
communities who choose their own authorities from within the community
and exercise the jurisdictional authority legally accorded to them to
decide internal community affairs.58
In the Philippine setting, regional autonomy implies the cultivation of more
positive means for national integration. It would remove the wariness
among the Muslims, increase their trust in the government and pave the
way for the unhampered implementation of the development programs in
the region.59 Again, even a glimpse of the deliberations of the
Constitutional Commission could lend a sense of the urgency and the
inexorable appeal of true decentralization:
MR. OPLE. . . . We are writing a Constitution, of course, for generations
to come, not only for the present but for our posterity. There is no harm in
recognizing certain vital pragmatic needs for national peace and
solidarity, and the writing of this Constitution just happens at a time when
it is possible for this Commission to help the cause of peace and
reconciliation in Mindanao and the Cordilleras, by taking advantage of a
heaven-sent opportunity. . . . 60
...
MR. ABUBAKAR. . . . So in order to foreclose and convince the rest of
the of the Philippines that Mindanao autonomy will be granted to them as
soon as possible, more or less, to dissuade these armed men from going
outside while Mindanao will be under the control of the national
government, let us establish an autonomous Mindanao within our effort
and capacity to do so within the shortest possible time. This will be an
answer to the Misuari clamor, not only for autonomy but for
independence.61
...
MR. OPLE. . . . The reason for this abbreviation of the period for the
consideration of the Congress of the organic acts and their passage is
that we live in abnormal times. In the case of Muslim Mindanao and the
Cordilleras, we know that we deal with questions of war and peace.
These are momentous issues in which the territorial integrity and the
solidarity of this country are being put at stake, in a manner of speaking.
We are writing a peace Constitution. We hope that the Article on Social
Justice can contribute to a climate of peace so that any civil strife in the
countryside can be more quickly and more justly resolved. We are
providing for autonomous regions so that we give constitutional
permanence to the just demands and grievances of our own fellow
countrymen in the Cordilleras and in Mindanao. One hundred thousand

Rather than give opportunity to foreign bodies, no matter how

sympathetic to the Philippines, to contribute to the settlement of this
issue, I think the Constitutional Commission ought not to forego the
opportunity to put the stamp of this Commission through definitive action
on the settlement of the problems that have nagged us and our
forefathers for so long.62
A necessary prerequisite of autonomy is decentralization.63
Decentralization is a decision by the central government authorizing its
subordinates, whether geographically or functionally defined, to exercise
authority in certain areas. It involves decision-making by subnational
units. It is typically a delegated power, wherein a larger government
chooses to delegate certain authority to more local governments.
Federalism implies some measure of decentralization, but unitary
systems may also decentralize. Decentralization differs intrinsically from
federalism in that the sub-units that have been authorized to act (by
delegation) do not possess any claim of right against the central
government.64
Decentralization comes in two formsdeconcentration and devolution.
Deconcentration is administrative in nature; it involves the transfer of
functions or the delegation of authority and responsibility from the
national office to the regional and local offices. This mode of
decentralization is also referred to as administrative decentralization.65
Devolution, on the other hand, connotes political decentralization, or the
transfer of powers, responsibilities, and resources for the performance of
certain functions from the central government to local government
units.66 This is a more liberal form of decentralization since there is an
actual transfer of powers and responsibilities.67 It aims to grant greater
autonomy to local government units in cognizance of their right to selfgovernment, to make them self-reliant, and to improve their
administrative and technical capabilities.68
This Court elucidated the concept of autonomy in Limbona v.
Mangelin,69 thus:
Autonomy is either decentralization of administration or decentralization
of power. There is decentralization of administration when the central
government delegates administrative powers to political subdivisions in
order to broaden the base of government power and in the process to
make local governments "more responsive and accountable," and
"ensure their fullest development as self-reliant communities and make
them more effective partners in the pursuit of national development and
social progress." At the same time, it relieves the central government of
the burden of managing local affairs and enables it to concentrate on
national concerns. The President exercises "general supervision" over
them, but only to "ensure that local affairs are administered according to
law." He has no control over their acts in the sense that he can substitute
their judgments with his own.
Decentralization of power, on the other hand, involves an abdication of
political power in the favor of local government units declared to be
autonomous. In that case, the autonomous government is free to chart its
own destiny and shape its future with minimum intervention from central
authorities. According to a constitutional author, decentralization of power
amounts to "self-immolation," since in that event the autonomous
government becomes accountable not to the central authorities but to its
constituency.

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

(1) Administrative organization;

A year later, in Cordillera Broad Coalition v. Commission on Audit,71 the

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

(5) Regional urban and rural planning development;

And by regional autonomy, the framers intended it to mean "meaningful

and authentic regional autonomy."73 As articulated by a Muslim author,
substantial and meaningful autonomy is "the kind of local self-government
which allows the people of the region or area the power to determine
what is best for their growth and development without undue interference
or dictation from the central government."74
To this end, Section 16, Article X75 limits the power of the President over
autonomous regions.76 In essence, the provision also curtails the power
of Congress over autonomous regions.77 Consequently, Congress will
have to re-examine national laws and make sure that they reflect the
Constitution's adherence to local autonomy. And in case of conflicts, the
underlying spirit which should guide its resolution is the Constitution's
desire for genuine local autonomy.78
The diminution of Congress' powers over autonomous regions was
confirmed in Ganzon v. Court of Appeals,79wherein this Court held that
"the omission (of "as may be provided by law") signifies nothing more
than to underscore local governments' autonomy from Congress and to
break Congress' 'control' over local government affairs."
This is true to subjects over which autonomous regions have powers, as
specified in Sections 18 and 20, Article X of the 1987 Constitution.
Expressly not included therein are powers over certain areas. Worthy of
note is that the area of public works is not excluded and neither is it
reserved for the National Government. The key provisions read, thus:
SEC. 18. The Congress shall enact an organic act for each autonomous
region with the assistance and participation of the regional consultative
commission composed of representatives appointed by the President
from a list of nominees from multisectoral bodies. The organic act shall
define the basic structure of government for the region consisting of the
executive department and legislative assembly, both of which shall be
elective and representative of the constituent political units. The organic
acts shall likewise provide for special courts with personal, family and
property law jurisdiction consistent with the provisions of the Constitution
and national laws.
The creation of the autonomous region shall be effective when approved
by majority of the votes cast by the constituent units in a plebiscite called
for the purpose, provided that only provinces, cities, and geographic
areas voting favorably in such plebiscite shall be included in the
autonomous region.
SEC. 20. Within its territorial jurisdiction and subject to the provisions of
this Constitution and national laws, the organic act of autonomous
regions shall provide for legislative powers over:

(2) Creation of sources of revenues;

(3) Ancestral domain and natural resources;
(4) Personal, family and property relations;

(6) Economic, social, and tourism development;

(7) Educational policies;
(8) Preservation and development of the cultural heritage; and
(9) Such other matters as may be authorized by law for the promotion of
general welfare of the people of the region. (Emphasis supplied)
E.O. 426 officially devolved the powers and functions of the DPWH in
ARMM to the Autonomous Regional Government (ARG). Sections 1 and
2 of E.O. 426 provide:
SECTION 1. Transfer of Control and Supervision. The offices of the
Department of Public Works and Highways (DPWH) within the
Autonomous Region in Muslim Mindanao (ARMM) including their
functions, powers and responsibilities, personnel, equipment, properties,
budgets and liabilities are hereby placed under the control and
supervision of the Autonomous Regional Government.
In particular, these offices are identified as the four (4) District
Engineering Offices (DEO) in each of the four provinces respectively and
the three (3) Area Equipment Services (AES) located in Tawi-Tawi, Sulu
and Maguindanao (Municipality of Sultan Kudarat).
SEC. 2. Functions Transferred. The Autonomous Regional Government
shall be responsible for highways, flood control and water resource
development systems, and other public works within the ARMM and shall
exercise the following functions:
1. Undertake and evaluate the planning, design, construction and works
supervision for the infrastructure projects whose location and impact are
confined within the ARMM;
2. Undertake the maintenance of infrastructure facilities within the ARMM
and supervise the maintenance of such local roads and other
infrastructure facilities receiving financial assistance from the National
Government;
3. Ensure the implementation of laws, policies, programs, rules and
regulations regarding infrastructure projects as well as all public and
private physical structures within the ARMM;
4. Provide technical assistance related to their functions to other
agencies within the ARMM, especially the local government units;
5. Coordinate with other national and regional government departments,
agencies, institutions and organizations, especially the local government
units within the ARMM in the planning and implementation of
infrastructure projects;
6. Conduct continuing consultations with the local communities, take
appropriate measures to make the services of the Autonomous Regional
Government responsive to the needs of the general public and
recommend such appropriate actions as may be necessary; and
7. Perform such other related duties and responsibilities within the ARMM
as may be assigned or delegated by the Regional Governor or as may be
provided by law. (Emphasis supplied)

More importantly, Congress itself through R.A. 9054 transferred and

devolved the administrative and fiscal management of public works and
funds for public works to the ARG. Section 20, Article VI of R.A. 9054
provides:
ARTICLE VI

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

THE LEGISLATIVE DEPARTMENT

SEC. 20. Annual Budget and Infrastructure Funds. The annual budget
of the Regional Government shall be enacted by Regional Assembly.
Funds for infrastructure in the autonomous region allocated by the central
government or national government shall be appropriated through a
Regional Assembly Public Works Act.
Unless approved by the Regional Assembly, no public works funds
allocated by the central government or national government for the
Regional Government or allocated by the Regional Government from its
own revenues may be disbursed, distributed, realigned, or used in any
manner.
The aim of the Constitution is to extend to the autonomous peoples, the
people of Muslim Mindanao in this case, the right to self-determinationa
right to choose their own path of development; the right to determine the
political, cultural and economic content of their development path within
the framework of the sovereignty and territorial integrity of the Philippine
Republic.80 Self-determination refers to the need for a political structure
that will respect the autonomous peoples' uniqueness and grant them
sufficient room for self-expression and self-construction.81
In treading their chosen path of development, the Muslims in Mindanao
are to be given freedom and independence with minimum interference
from the National Government. This necessarily includes the freedom to
decide on, build, supervise and maintain the public works and
infrastructure projects within the autonomous region. The devolution of
the powers and functions of the DPWH in the ARMM and transfer of the
administrative and fiscal management of public works and funds to the
ARG are meant to be true, meaningful and unfettered. This unassailable
conclusion is grounded on a clear consensus, reached at the
Constitutional Commission and ratified by the entire Filipino electorate,
on the centrality of decentralization of power as the appropriate vessel of
deliverance for Muslim Filipinos and the ultimate unity of Muslims and
Christians in this country.
With R.A. 8999, however, this freedom is taken away, and the National
Government takes control again. The hands, once more, of the
autonomous peoples are reined in and tied up.
The challenged law creates an office with functions and powers which, by
virtue of E.O. 426, have been previously devolved to the DPWH-ARMM,
First Engineering District in Lanao del Sur.

It is clear from the foregoing provision of law that except for the areas of
executive power mentioned therein, all other such areas shall be
exercised by the Autonomous Regional Government ("ARG") of the
Autonomous Region in Muslim Mindanao. It is noted that programs
relative to infrastructure facilities, health, education, women in
development, agricultural extension and watershed management do not
fall under any of the exempted areas listed in the abovequoted provision
of law. Thus, the inevitable conclusion is that all these spheres of
executive responsibility have been transferred to the ARG.
Reinforcing the aboveview (sic) are the various executive orders issued
by the President providing for the devolution of the powers and functions
of specified executive departments of the National Government to the
ARG. These are E.O. Nos. 425 (Department of Labor and Employment,
Local Government, Tourism, Environment and Natural Resources, Social
Welfare and Development and Science and Technology), 426
(Department of Public Works and Highways), 459 (Department of
Education, Culture and Sports) and 460 (Department of Agriculture). The
execution of projects on infrastructure, education, women, agricultural
extension and watershed management within the Autonomous Region of
Muslim Mindanao normally fall within the responsibility of one of the
aforementioned executive departments of the National Government, but
by virtue of the aforestated EOs, such responsibility has been transferred
to the ARG.
E.O. 426 was issued to implement the provisions of the first ARMM
Organic Act, R.A. 6734the validity of which this Court upheld in the
case of Abbas v. Commission on Elections.83 In Section 4, Article XVIII
of said Act, "central government or national government offices and
agencies in the autonomous region which are not excluded under Section
3, Article IV84 of this Organic Act, shall be placed under the control and
supervision of the Regional Government pursuant to a schedule
prescribed by the oversight committee."
Evidently, the intention is to cede some, if not most, of the powers of the
national government to the autonomous government in order to
effectuate a veritable autonomy. The continued enforcement of R.A.
8999, therefore, runs afoul of the ARMM Organic Acts and results in the
recall of powers which have previously been handed over. This should
not be sanctioned, elsewise the Organic Acts' desire for greater
autonomy for the ARMM in accordance with the Constitution would be
quelled. It bears stressing that national laws are subject to the
Constitution one of whose state policies is to ensure the autonomy of
autonomous regions. Section 25, Article II of the 1987 Constitution states:
Sec. 25. The State shall ensure the autonomy of local governments.

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

R.A. 8999 has made the DPWH-ARMM effete and rendered regional
autonomy illusory with respect to infrastructure projects. The
Congressional Record shows, on the other hand, that the "lack of an
implementing and monitoring body within the area" has hindered the
speedy implementation, of infrastructure projects.85Apparently, in the
legislature's estimation, the existing DPWH-ARMM engineering districts
failed to measure up to the task. But if it was indeed the case, the
problem could not be solved through the simple legislative creation of an
incongruous engineering district for the central government in the ARMM.
As it was, House Bill No. 995 which ultimately became R.A. 8999 was
passed in record time on second reading (not more than 10 minutes),
absolutely without the usual sponsorship speech and debates.86 The
precipitate speed which characterized the passage of R.A. 8999 is

difficult to comprehend since R.A. 8999 could have resulted in the

amendment of the first ARMM Organic Act and, therefore, could not take
effect without first being ratified in a plebiscite. What is more baffling is
that in March 2001, or barely two (2) months after it enacted R.A. 8999 in
January 2001, Congress passed R.A. 9054, the second ARMM Organic
Act, where it reaffirmed the devolution of the DPWH in ARMM, including
Lanao del Sur and Marawi City, to the Regional Government and
effectively repealed R.A. 8999.
DPWH Department Order No. 119
Now, the question directly related to D.O. 119.
D.O. 119 creating the Marawi Sub-District Engineering Office which has
jurisdiction over infrastructure projects within Marawi City and Lanao del
Sur is violative of the provisions of E.O. 426. The Executive Order was
issued pursuant to R.A. 6734which initiated the creation of the
constitutionally-mandated autonomous region87 and which defined the
basic structure of the autonomous government.88 E.O. 426 sought to
implement the transfer of the control and supervision of the DPWH within
the ARMM to the Autonomous Regional Government. In particular, it
identified four (4) District Engineering Offices in each of the four (4)
provinces, namely: Lanao del Sur, Maguindanao, Sulu and TawiTawi.89 Accordingly, the First Engineering District of the DPWH-ARMM in
Lanao del Sur has jurisdiction over the public works within the province.
The office created under D.O. 119, having essentially the same powers,
is a duplication of the DPWH-ARMM First Engineering District in Lanao
del Sur formed under the aegis of E.O. 426. The department order, in
effect, takes back powers which have been previously devolved under
the said executive order. D.O. 119 runs counter to the provisions of E.O.
426. The DPWH's order, like spring water, cannot rise higher than its
source of powerthe Executive.
The fact that the department order was issued pursuant to E.O. 124
signed and approved by President Aquino in her residual legislative
powersis of no moment. It is a finely-imbedded principle in statutory
construction that a special provision or law prevails over a general
one.90 Lex specialis derogant generali. As this Court expressed in the
case of Leveriza v. Intermediate Appellate Court,91 "another basic
principle of statutory construction mandates that general legislation must
give way to special legislation on the same subject, and generally be so
interpreted as to embrace only cases in which the special provisions are
not applicable, that specific statute prevails over a general statute and
that where two statutes are of equal theoretical application to a particular
case, the one designed therefor specially should prevail."
E.O. No. 124, upon which D.O. 119 is based, is a general law
reorganizing the Ministry of Public Works and Highways while E.O. 426 is
a special law transferring the control and supervision of the DPWH offices
within ARMM to the Autonomous Regional Government. The latter
statute specifically applies to DPWH-ARMM offices. E.O. 124 should
therefore give way to E.O. 426 in the instant case.
In any event, the ARMM Organic Acts and their ratification in a plebiscite
in effect superseded E.O. 124. In case of an irreconcilable conflict
between two laws of different vintages, the later enactment prevails
because it is the later legislative will.92
Further, in its repealing clause, R.A. 9054 states that "all laws, decrees,
orders, rules and regulations, and other issuances or parts thereof, which
are inconsistent with this Organic Act, are hereby repealed or modified
accordingly."93 With the repeal of E.O. 124 which is the basis of D.O.
119, it necessarily follows that D.O. 119 was also rendered functus officio
by the ARMM Organic Acts.
Grave abuse of discretion

Without doubt, respondents committed grave abuse of discretion. They

implemented R.A. 8999 despite its inoperativeness and repeal. They also
put in place and maintained the DPWH Marawi Sub-District Engineering
Office in accordance with D.O. 119 which has been rendered functus
officio by the ARMM Organic Acts.
Still, on the issue of grave abuse of discretion, this Court, however,
cannot uphold petitioners' argument that R.A. 8999 was signed into law
under suspicious circumstances to support the assertion that there was a
capricious and whimsical exercise of legislative authority. Once more, this
Court cannot inquire into the wisdom, merits, propriety or expediency of
the acts of the legislative branch.
Likewise, the alleged lack of consultation or public hearing with the
affected agency during the inception of the law does not render the law
infirm. This Court holds that the Congress did not transgress the
Constitution nor any statute or House Rule in failing to invite a resource
person from the DPWH-ARMM during the Committee meeting. Section
27, Rule VII of the Rules of the House94 only requires that a written
notice be given to all the members of a Committee seven (7) calendar
days before a regularly scheduled meeting, specifying the subject matter
of the meeting and the names of the invited resource persons. And it
must be emphasized that the questions of who to invite and whether
there is a need to invite resource persons during Committee meetings
should be addressed solely to Congress in its plenary legislative
powers.95
Conclusion
The repeal of R.A. 8999 and the functus officio state of D.O. 119 provide
the necessary basis for the grant of the writs of certiorari and prohibition
sought by the petitioners. However, there is no similar basis for the
issuance of a writ of mandamus to compel respondent DBM Secretary to
release funds appropriated for public works projects in Marawi City and
Lanao del Sur to the DPWH-ARMM First Engineering District in Lanao del
Sur and to compel respondent DPWH Secretary to allow the DPWHARMM, First Engineering District in Lanao del Sur to implement all public
works projects within its jurisdictional area. Section 20, Article VI of R.A.
9054 clearly provides that "(f)unds for infrastructure in the autonomous
region allocated by the central government or national government shall
only be appropriated through a Regional Assembly Public Works Act"
passed by the Regional Assembly. There is no showing that such
Regional Assembly Public Works Act has been enacted.
WHEREFORE, considering that Republic Act No. 9054 repealed
Republic Act No. 8999 and rendered DPWH Department Order No. 119
functus officio, the petition insofar as it seeks the writs of certiorari and
prohibition is GRANTED. Accordingly, let a writ of prohibition ISSUE
commanding respondents to desist from implementing R.A. 8999 and
D.O. 119, and maintaining the DPWH Marawi Sub-District Engineering
Office and the First Engineering District of the Province of Lanao del Sur
comprising the City of Marawi and the municipalities within the First
District of Lanao del Sur. However, the petition insofar as it seeks a writ
of mandamus against respondents is DENIED.
No costs.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 138810

September 29, 2004

BATANGAS CATV, INC., petitioner,

vs.
THE COURT OF APPEALS, THE BATANGAS CITY SANGGUNIANG
PANLUNGSOD and BATANGAS CITY MAYOR, respondents.

"WHEREFORE, as prayed for, the defendants, their representatives,

agents, deputies or other persons acting on their behalf or under their
instructions, are hereby enjoined from canceling plaintiffs permit to
operate a Cable Antenna Television (CATV) system in the City of
Batangas or its environs or in any manner, from interfering with the
authority and power of the National Telecommunications Commission to
grant franchises to operate CATV systems to qualified applicants, and the
right of plaintiff in fixing its service rates which needs no prior approval of
the Sangguniang Panlungsodof Batangas City.
The counterclaim of the plaintiff is hereby dismissed. No pronouncement
as to costs.

DECISION

IT IS SO ORDERED."10

SANDOVAL-GUTIERREZ, J.:

The trial court held that the enactment of Resolution No. 210 by
respondent violates the States deregulation policy as set forth by then
NTC Commissioner Jose Luis A. Alcuaz in his Memorandum dated
August 25, 1989. Also, it pointed out that the sole agency of the
government which can regulate CATV operation is the NTC, and that the
LGUs cannot exercise regulatory power over it without appropriate
legislation.

In the late 1940s, John Walson, an appliance dealer in Pennsylvania,

suffered a decline in the sale of television (tv) sets because of poor
reception of signals in his community. Troubled, he built an antenna on
top of a nearby mountain. Using coaxial cable lines, he distributed the tv
signals from the antenna to the homes of his customers. Walsons
innovative idea improved his sales and at the same time gave birth to a
new telecommunication system -- the Community Antenna Television
(CATV) or Cable Television.1
This technological breakthrough found its way in our shores and, like in
its country of origin, it spawned legal controversies, especially in the field
of regulation. The case at bar is just another occasion to clarify a shady
area. Here, we are tasked to resolve the inquiry -- may a local
government unit (LGU) regulate the subscriber rates charged by CATV
operators within its territorial jurisdiction?
This is a petition for review on certiorari filed by Batangas CATV, Inc.
(petitioner herein) against the Sangguniang Panlungsod and the Mayor of
Batangas City (respondents herein) assailing the Court of
Appeals (1) Decision2dated February 12, 1999 and (2) Resolution3 dated
May 26, 1999, in CA-G.R. CV No. 52361.4 The Appellate Court reversed
and set aside the Judgment5 dated October 29, 1995 of the Regional
Trial Court (RTC), Branch 7, Batangas City in Civil Case No.
4254,6 holding that neither of the respondents has the power to fix the
subscriber rates of CATV operators, such being outside the scope of the
LGUs power.
The antecedent facts are as follows:
On July 28, 1986, respondent Sangguniang Panlungsod enacted
Resolution No. 2107 granting petitioner apermit to construct, install, and
operate a CATV system in Batangas City. Section 8 of the Resolution
provides that petitioner is authorized to charge its subscribers the
maximum rates specified therein, "provided, however, that any increase
of rates shall be subject to the approval of the Sangguniang
Panlungsod."8
Sometime in November 1993, petitioner increased its subscriber rates
from P88.00 to P180.00 per month. As a result, respondent Mayor wrote
petitioner a letter9 threatening to cancel its permit unless it secures the
approval of respondent Sangguniang Panlungsod, pursuant to Resolution
No. 210.
Petitioner then filed with the RTC, Branch 7, Batangas City, a petition for
injunction docketed as Civil Case No. 4254. It alleged that
respondent Sangguniang Panlungsod has no authority to regulate the
subscriber rates charged by CATV operators because under Executive
Order No. 205, the National Telecommunications Commission (NTC) has
the sole authority to regulate the CATV operation in the Philippines.
On October 29, 1995, the trial court decided in favor of petitioner, thus:

Unsatisfied, respondents elevated the case to the Court of Appeals,

docketed as CA-G.R. CV No. 52361.
On February 12, 1999, the Appellate Court reversed and set aside the
trial courts Decision, ratiocinating as follows:
"Although the Certificate of Authority to operate a Cable Antenna
Television (CATV) System is granted by the National
Telecommunications Commission pursuant to Executive Order No. 205,
this does not preclude the Sangguniang Panlungsod from regulating the
operation of the CATV in their locality under the powers vested upon it by
Batas Pambansa Bilang 337, otherwise known as the Local Government
Code of 1983. Section 177 (now Section 457 paragraph 3 (ii) of Republic
Act 7160) provides:
Section 177. Powers and Duties The Sangguniang Panlungsod shall:
a) Enact such ordinances as may be necessary to carry into effect and
discharge the responsibilities conferred upon it by law, and such as shall
be necessary and proper to provide for health and safety, comfort and
convenience, maintain peace and order, improve the morals, and
promote the prosperity and general welfare of the community and the
inhabitants thereof, and the protection of property therein;
xxx
d) Regulate, fix the license fee for, and tax any business or profession
being carried on and exercised within the territorial jurisdiction of the city,
except travel agencies, tourist guides, tourist transports, hotels, resorts,
de luxe restaurants, and tourist inns of international standards which shall
remain under the licensing and regulatory power of the Ministry of
Tourism which shall exercise such authority without infringement on the
taxing and regulatory powers of the city government;
Under cover of the General Welfare Clause as provided in this section,
Local Government Units can perform just about any power that will
benefit their constituencies. Thus, local government units can exercise
powers that are: (1) expressly granted; (2) necessarily implied from the
power that is expressly granted; (3)necessary, appropriate or incidental
for its efficient and effective governance; and (4) essential to the
promotion of the general welfare of their inhabitants. (Pimentel, The Local
Government Code of 1991, p. 46)

Verily, the regulation of businesses in the locality is expressly provided in

the Local Government Code. The fixing of service rates is lawful under
the General Welfare Clause.
Resolution No. 210 granting appellee a permit to construct, install and
operate a community antenna television (CATV) system in Batangas City
as quoted earlier in this decision, authorized the grantee to impose
charges which cannot be increased except upon approval of the
Sangguniang Bayan. It further provided that in case of violation by the
grantee of the terms and conditions/requirements specifically provided
therein, the City shall have the right to withdraw the franchise.
Appellee increased the service rates from EIGHTY EIGHT PESOS
(P88.00) to ONE HUNDRED EIGHTY PESOS (P180.00) (Records, p. 25)
without the approval of appellant. Such act breached Resolution No. 210
which gives appellant the right to withdraw the permit granted to
appellee."11
Petitioner filed a motion for reconsideration but was denied.12
Hence, the instant petition for review on certiorari anchored on the
following assignments of error:
"I
THE COURT OF APPEALS ERRED IN HOLDING THAT THE GENERAL
WELFARE CLAUSE of the LOCAL GOVERNMENT CODE
AUTHORIZES RESPONDENT SANGGUNIANG PANLUNGSOD TO
EXERCISE THE REGULATORY FUNCTION SOLELY LODGED WITH
THE NATIONAL TELECOMMUNICATIONS COMMISSION UNDER
EXECUTIVE ORDER NO. 205, INCLUDING THE AUTHORITY TO FIX
AND/OR APPROVE THE SERVICE RATES OF CATV OPERATORS;
AND

Makulay, Inc., an exclusive franchise to operate CATV system in any

place within the Philippines. Accordingly, it terminated all franchises,
permits or certificates for the operation of CATV system previously
granted by local governments or by any instrumentality or agency of the
national government.17 Likewise, it prescribed the subscriber rates to be
charged by Sining Makulay, Inc. to its customers.18
On July 21, 1979, President Marcos issued Letter of Instruction (LOI) No.
894 vesting upon the Chairman of the Board of Communications direct
supervision over the operations of Sining Makulay, Inc. Three days after,
he issued E.O. No. 54619 integrating the Board of
Communications20 and the Telecommunications Control Bureau21to
form a single entity to be known as the "National Telecommunications
Commission." Two of its assigned functions are:
"a. Issue Certificate of Public Convenience for the operation of
communications utilities and services, radio communications systems,
wire or wireless telephone or telegraph systems, radio and television
broadcasting system and other similar public utilities;
b. Establish, prescribe and regulate areas of operation of particular
operators of public service communications; and determine and prescribe
charges or rates pertinent to the operation of such public utility facilities
and services except in cases where charges or rates are established by
international bodies or associations of which the Philippines is a
participating member or by bodies recognized by the Philippine
Government as the proper arbiter of such charges or rates;"
Although Sining Makulay Inc.s exclusive franchise had a life term of 25
years, it was cut short by the advent of the 1986 Revolution. Upon
President Corazon C. Aquinos assumption of power, she issued E.O.
No. 20522 opening the CATV industry to all citizens of the Philippines. It
mandated the NTC to grant Certificates of Authority to CATV operators
and to issue the necessary implementing rules and regulations.

II
THE COURT OF APPEALS ERRED IN REVERSING THE DECISION
APPEALED FROM AND DISMISSING PETITIONERS COMPLAINT."13

On September 9, 1997, President Fidel V. Ramos issued E.O. No.

43623 prescribing policy guidelines to govern CATV operation in the
Philippines. Cast in more definitive terms, it restated the NTCs regulatory
powers over CATV operations, thus:

Petitioner contends that while Republic Act No. 7160, the Local
Government Code of 1991, extends to the LGUs the general power to
perform any act that will benefit their constituents, nonetheless, it does
not authorize them to regulate the CATV operation. Pursuant to E.O. No.
205, only the NTC has the authority to regulate the CATV operation,
including the fixing of subscriber rates.

"SECTION 2. The regulation and supervision of the cable television

industry in the Philippines shall remain vested solely with the National
Telecommunications Commission (NTC).

Respondents counter that the Appellate Court did not commit any
reversible error in rendering the assailed Decision. First, Resolution No.
210 was enacted pursuant to Section 177(c) and (d) of Batas Pambansa
Bilang337, the Local Government Code of 1983, which authorizes LGUs
to regulate businesses. The term "businesses" necessarily includes the
CATV industry. And second, Resolution No. 210 is in the nature of a
contract between petitioner and respondents, it being a grant to the
former of a franchise to operate a CATV system. To hold that E.O. No.
205 amended its terms would violate the constitutional prohibition against
impairment of contracts.14

SECTION 3. Only persons, associations, partnerships, corporations or

cooperatives, granted a Provisional Authority or Certificate of Authority by
the Commission may install, operate and maintain a cable television
system or render cable television service within a service area."

Earlier, we posed the question -- may a local government unit (LGU)

regulate the subscriber rates charged by CATV operators within its
territorial jurisdiction? A review of pertinent laws and jurisprudence yields
a negative answer.

Clearly, it has been more than two decades now since our national
government, through the NTC, assumed regulatory power over the CATV
industry. Changes in the political arena did not alter the trend. Instead,
subsequent presidential issuances further reinforced the NTCs power.
Significantly, President Marcos and President Aquino, in the exercise of
their legislative power, issued P.D. No. 1512, E.O. No. 546 and E.O. No.
205. Hence, they have the force and effect of statutes or laws passed by
Congress.24 That the regulatory power stays with the NTC is also clear
from President Ramos E.O. No. 436 mandating that the regulation and
supervision of the CATV industry shall remain vested "solely" in the NTC.
Blacks Law Dictionary defines "sole" as "without another or
others."25 The logical conclusion, therefore, is that in light of the above
laws and E.O. No. 436, the NTC exercises regulatory power over CATV
operators to the exclusion of other bodies.

President Ferdinand E. Marcos was the first one to place the CATV
industry under the regulatory power of the national government.15 On
June 11, 1978, he issued Presidential Decree (P.D.) No.
151216 establishing a monopoly of the industry by granting Sining

But, lest we be misunderstood, nothing herein should be interpreted as to

strip LGUs of their general power to prescribe regulations under the
general welfare clause of the Local Government Code. It must be
emphasized that when E.O. No. 436 decrees that the "regulatory power"

The petition is impressed with merit.

shall be vested "solely" in the NTC, it pertains to the "regulatory power"

over those matters which are peculiarly within the NTCs competence,
such as, the: (1) determination of rates, (2) issuance of "certificates of
authority, (3) establishment of areas of operation, (4) examination and
assessment of the legal, technical and financial qualifications of applicant
operators, (5) granting of permits for the use of frequencies, (6) regulation
of ownership and operation, (7) adjudication of issues arising from its
functions, and (8) other similar matters.26 Within these areas, the NTC
reigns supreme as it possesses the exclusive power to regulate -- a
power comprising varied acts, such as "to fix, establish, or control; to
adjust by rule, method or established mode; to direct by rule or restriction;
or to subject to governing principles or laws."27
Coincidentally, respondents justify their exercise of regulatory power over
petitioners CATV operation under the general welfare clause of the Local
Government Code of 1983. The Court of Appeals sustained their stance.
There is no dispute that respondent Sangguniang Panlungsod, like other
local legislative bodies, has been empowered to enact ordinances and
approve resolutions under the general welfare clause of B.P. Blg. 337,
the Local Government Code of 1983. That it continues to posses such
power is clear under the new law, R.A. No. 7160 (the Local Government
Code of 1991). Section 16 thereof provides:
"SECTION 16. General Welfare. Every local government unit shall
exercise the powers expressly granted, those necessarily implied
therefrom, as well as powers necessary, appropriate, or incidental for its
efficient and effective governance, and those which are essential to the
promotion of the general welfare. Within their respective territorial
jurisdictions, local government units shall ensure and support, among
others, the preservation and enrichment of culture, promote health and
safety, enhance the right of the people to a balanced ecology, encourage
and support the development of appropriate and self-reliant, scientific and
technological capabilities, improve public morals, enhance economic
prosperity and social justice, promote full employment among their
residents, maintain peace and order, and preserve the comfort and
convenience of their inhabitants."
In addition, Section 458 of the same Code specifically mandates:
"SECTION 458. Powers, Duties, Functions and Compensation. (a)
The Sangguniang Panlungsod, as the legislative body of the city, shall
enact ordinances, approve resolutions and appropriate funds for the
general welfare of the city and its inhabitants pursuant to Section 16 of
this Code and in the proper exercise of the corporate powers of the city
as provided for under Section 22 of this Code, x x x:"
The general welfare clause is the delegation in statutory form of the
police power of the State to LGUs.28 Through this, LGUs may prescribe
regulations to protect the lives, health, and property of their constituents
and maintain peace and order within their respective territorial
jurisdictions. Accordingly, we have upheld enactments providing, for
instance, the regulation of gambling,29 the occupation of rig
drivers,30 the installation and operation of pinball machines,31 the
maintenance and operation of cockpits,32 the exhumation and transfer of
corpses from public burial grounds,33 and the operation of hotels, motels,
and lodging houses34 as valid exercises by local legislatures of the
police power under the general welfare clause.
Like any other enterprise, CATV operation maybe regulated by LGUs
under the general welfare clause. This is primarily because the CATV
system commits the indiscretion of crossing public properties. (It uses
public properties in order to reach subscribers.) The physical realities of
constructing CATV system the use of public streets, rights of ways, the
founding of structures, and the parceling of large regions allow an LGU
a certain degree of regulation over CATV operators.35 This is the same
regulation that it exercises over all private enterprises within its territory.

But, while we recognize the LGUs power under the general welfare
clause, we cannot sustain Resolution No. 210. We are convinced that
respondents strayed from the well recognized limits of its power. The
flaws in Resolution No. 210 are: (1) it violates the mandate of existing
laws and (2) it violates the States deregulation policy over the CATV
industry.
I.
Resolution No. 210 is an enactment of an LGU acting only as agent of
the national legislature. Necessarily, its act must reflect and conform to
the will of its principal. To test its validity, we must apply the particular
requisites of a valid ordinance as laid down by the accepted principles
governing municipal corporations.36
Speaking for the Court in the leading case of United States vs.
Abendan,37 Justice Moreland said: "An ordinance enacted by virtue of
the general welfare clause is valid, unless it contravenes the fundamental
law of the Philippine Islands, or an Act of the Philippine Legislature, or
unless it is against public policy, or is unreasonable, oppressive, partial,
discriminating, or in derogation of common right." In De la Cruz vs.
Paraz,38 we laid the general rule "that ordinances passed by virtue of the
implied power found in the general welfare clause must be reasonable,
consonant with the general powers and purposes of the corporation, and
not inconsistent with the laws or policy of the State."
The apparent defect in Resolution No. 210 is that it contravenes E.O. No.
205 and E.O. No. 436 insofar as it permits respondent Sangguniang
Panlungsod to usurp a power exclusively vested in the NTC, i.e., the
power to fix the subscriber rates charged by CATV operators. As earlier
discussed, the fixing of subscriber rates is definitely one of the matters
within the NTCs exclusive domain.
In this regard, it is appropriate to stress that where the state legislature
has made provision for the regulation of conduct, it has manifested its
intention that the subject matter shall be fully covered by the statute, and
that a municipality, under its general powers, cannot regulate the same
conduct.39 In Keller vs. State,40 it was held that: "Where there is no
express power in the charter of a municipality authorizing it to adopt
ordinances regulating certain matters which are specifically covered by a
general statute, a municipal ordinance, insofar as it attempts to regulate
the subject which is completely covered by a general statute of the
legislature, may be rendered invalid. x x x Where the subject is of
statewide concern, and the legislature has appropriated the field and
declared the rule, its declaration is binding throughout the State." A
reason advanced for this view is that such ordinances are in excess of
the powers granted to the municipal corporation.41
Since E.O. No. 205, a general law, mandates that the regulation of CATV
operations shall be exercised by the NTC, an LGU cannot enact an
ordinance or approve a resolution in violation of the said law.
It is a fundamental principle that municipal ordinances are inferior in
status and subordinate to the laws of the state. An ordinance in conflict
with a state law of general character and statewide application is
universally held to be invalid.42 The principle is frequently expressed in
the declaration that municipal authorities, under a general grant of power,
cannot adopt ordinances which infringe the spirit of a state law or
repugnant to the general policy of the state.43 In every power to pass
ordinances given to a municipality, there is an implied restriction that the
ordinances shall be consistent with the general law.44 In the language of
Justice Isagani Cruz (ret.), this Court, inMagtajas vs. Pryce Properties
Corp., Inc.,45 ruled that:
"The rationale of the requirement that the ordinances should not
contravene a statute is obvious. Municipal governments are only agents
of the national government. Local councils exercise only delegated
legislative powers conferred on 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
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 to the corporation themselves are concerned. They are, so to
phrase it, the mere tenants at will of the legislature.
This 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, 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."
Respondents have an ingenious retort against the above disquisition.
Their theory is that the regulatory power of the LGUs is granted by R.A.
No. 7160 (the Local Government Code of 1991), a handiwork of the
national lawmaking authority. They contend that R.A. No. 7160 repealed
E.O. No. 205 (issued by President Aquino). Respondents argument
espouses a bad precedent. To say that LGUs exercise the same
regulatory power over matters which are peculiarly within the NTCs
competence is to promote a scenario of LGUs and the NTC locked in
constant clash over the appropriate regulatory measure on the same
subject matter. LGUs must recognize that technical matters concerning
CATV operation are within the exclusive regulatory power of the NTC.
At any rate, we find no basis to conclude that R.A. No. 7160 repealed
E.O. No. 205, either expressly or impliedly. It is noteworthy that R.A. No.
7160 repealing clause, which painstakingly mentions the specific laws or
the parts thereof which are repealed, does not include E.O. No. 205,
thus:
"SECTION 534. Repealing Clause. (a) Batas Pambansa Blg. 337,
otherwise known as the Local Government Code." Executive Order No.
112 (1987), and Executive Order No. 319 (1988) are hereby repealed.
(b) Presidential Decree Nos. 684, 1191, 1508 and such other decrees,
orders, instructions, memoranda and issuances related to or concerning
the barangay are hereby repealed.
(c) The provisions of Sections 2, 3, and 4 of Republic Act No. 1939
regarding hospital fund; Section 3, a (3) and b (2) of Republic Act. No.
5447 regarding the Special Education Fund; Presidential Decree No. 144
as amended by Presidential Decree Nos. 559 and 1741; Presidential
Decree No. 231 as amended; Presidential Decree No. 436 as amended
by Presidential Decree No. 558; and Presidential Decree Nos. 381, 436,
464, 477, 526, 632, 752, and 1136 are hereby repealed and rendered of
no force and effect.
(d) Presidential Decree No. 1594 is hereby repealed insofar as it governs
locally-funded projects.

(e) The following provisions are hereby repealed or amended insofar as

they are inconsistent with the provisions of this Code: Sections 2, 16, and
29 of Presidential Decree No. 704; Section 12 of Presidential Decree No.
87, as amended; Sections 52, 53, 66, 67, 68, 69, 70, 71, 72, 73, and 74
of Presidential Decree No. 463, as amended; and Section 16 of
Presidential Decree No. 972, as amended, and
(f) All general and special laws, acts, city charters, decrees, executive
orders, proclamations and administrative regulations, or part or parts
thereof which are inconsistent with any of the provisions of this Code are
hereby repealed or modified accordingly."
Neither is there an indication that E.O. No. 205 was impliedly repealed by
R.A. No. 7160. It is a settled rule that implied repeals are not lightly
presumed in the absence of a clear and unmistakable showing of such
intentions. In Mecano vs. Commission on Audit,46 we ruled:
"Repeal by implication proceeds on the premise that where a statute of
later date clearly reveals an intention on the part of the legislature to
abrogate a prior act on the subject, that intention must be given effect.
Hence, before there can be a repeal, there must be a clear showing on
the part of the lawmaker that the intent in enacting the new law was to
abrogate the old one. The intention to repeal must be clear and manifest;
otherwise, at least, as a general rule, the later act is to be construed as a
continuation of, and not a substitute for, the first act and will continue so
far as the two acts are the same from the time of the first enactment."
As previously stated, E.O. No. 436 (issued by President Ramos) vests
upon the NTC the power to regulate the CATV operation in this country.
So also Memorandum Circular No. 8-9-95, the Implementing Rules and
Regulations of R.A. No. 7925 (the "Public Telecommunications Policy Act
of the Philippines"). This shows that the NTCs regulatory power over
CATV operation is continuously recognized.
It is a canon of legal hermeneutics that instead of pitting one statute
against another in an inevitably destructive confrontation, courts must
exert every effort to reconcile them, remembering that both laws deserve
a becoming respect as the handiwork of coordinate branches of the
government.47 On the assumption of a conflict between E.O. No. 205
and R.A. No. 7160, the proper action is not to uphold one and annul the
other but to give effect to both by harmonizing them if possible. This
recourse finds application here. Thus, we hold that the NTC, under E.O.
No. 205, has exclusive jurisdiction over matters affecting CATV
operation, including specifically the fixing of subscriber rates, but nothing
herein precludes LGUs from exercising its general power, under R.A. No.
7160, to prescribe regulations to promote the health, morals, peace,
education, good order or safety and general welfare of their constituents.
In effect, both laws become equally effective and mutually
complementary.
The grant of regulatory power to the NTC is easily understandable. CATV
system is not a mere local concern. The complexities that characterize
this new technology demand that it be regulated by a specialized agency.
This is particularly true in the area of rate-fixing. Rate fixing involves a
series of technical operations.48 Consequently, on the hands of the
regulatory body lies the ample discretion in the choice of such rational
processes as might be appropriate to the solution of its highly
complicated and technical problems. Considering that the CATV industry
is so technical a field, we believe that the NTC, a specialized agency, is
in a better position than the LGU, to regulate it. Notably, in United States
vs. Southwestern Cable Co.,49 the US Supreme Court affirmed the
Federal Communications Commissions (FCCs) jurisdiction over CATV
operation. The Court held that the FCCs authority over cable systems
assures the preservation of the local broadcast service and an equitable
distribution of broadcast services among the various regions of the
country.
II.

Resolution No. 210 violated the States deregulation policy.

We are not convinced.

Deregulation is the reduction of government regulation of business to

permit freer markets and competition.50Oftentimes, the State, through its
regulatory agencies, carries out a policy of deregulation to attain certain
objectives or to address certain problems. In the field of
telecommunications, it is recognized that many areas in the Philippines
are still "unserved" or "underserved." Thus, to encourage private sectors
to venture in this field and be partners of the government in stimulating
the growth and development of telecommunications, the State promoted
the policy of deregulation.

There is no law specifically authorizing the LGUs to grant franchises to

operate CATV system. Whatever authority the LGUs had before, the
same had been withdrawn when President Marcos issued P.D. No. 1512
"terminating all franchises, permits or certificates for the operation of
CATV system previously granted by local governments." Today, pursuant
to Section 3 of E.O. No. 436, "only persons, associations, partnerships,
corporations or cooperatives granted a Provisional Authority or Certificate
of Authority by the NTC may install, operate and maintain a cable
television system or render cable television service within a service area."
It is clear that in the absence of constitutional or legislative authorization,
municipalities have no power to grant franchises.53Consequently, the
protection of the constitutional provision as to impairment of the obligation
of a contract does not extend to privileges, franchises and grants given
by a municipality in excess of its powers, or ultra vires.54

In the United States, the country where CATV originated, the Congress
observed, when it adopted the Telecommunications Act of 1996, that
there was a need to provide a pro-competitive, deregulatory national
policy framework designed to accelerate rapidly private sector
deployment of advanced telecommunications and information
technologies and services to all Americans by opening all
telecommunications markets to competition. The FCC has adopted
regulations to implement the requirements of the 1996 Act and the intent
of the Congress.
Our country follows the same policy. The fifth Whereas Clause of E.O.
No. 436 states:
"WHEREAS, professionalism and self-regulation among existing
operators, through a nationally recognized cable television operators
association, have enhanced the growth of the cable television industry
and must therefore be maintained along with minimal reasonable
government regulations;"
This policy reaffirms the NTCs mandate set forth in the Memorandum
dated August 25, 1989 of Commissioner Jose Luis A. Alcuaz, to wit:

One last word. The devolution of powers to the LGUs, pursuant to the
Constitutional mandate of ensuring their autonomy, has bred jurisdictional
tension between said LGUs and the State. LGUs must be reminded that
they merely form part of the whole. Thus, when the Drafters of the 1987
Constitution enunciated the policy of ensuring the autonomy of local
governments,55 it was never their intention to create an imperium in
imperio and install an intra-sovereign political subdivision independent of
a single sovereign state.
WHEREFORE, the petition is GRANTED. The assailed Decision of the
Court of Appeals dated February 12, 1999 as well as its Resolution dated
May 26, 1999 in CA-G.R. CV No. 52461, are hereby REVERSED. The
RTC Decision in Civil Case No. 4254 is AFFIRMED.
No pronouncement as to costs.
SO ORDERED.

"In line with the purpose and objective of MC 4-08-88, Cable Television
System or Community Antenna Television (CATV) is made part of the
broadcast media to promote the orderly growth of the Cable Television
Industry it being in its developing stage. Being part of the Broadcast
Media, the service rates of CATV are likewise considered deregulated in
accordance with MC 06-2-81 dated 25 February 1981, the implementing
guidelines for the authorization and operation of Radio and Television
Broadcasting stations/systems.
Further, the Commission will issue Provisional Authority to existing CATV
operators to authorize their operations for a period of ninety (90) days
until such time that the Commission can issue the regular Certificate of
Authority."
When the State declared a policy of deregulation, the LGUs are bound to
follow. To rule otherwise is to render the States policy ineffective. Being
mere creatures of the State, LGUs cannot defeat national policies
through enactments of contrary measures. Verily, in the case at bar,
petitioner may increase its subscriber rates without respondents
approval.
At this juncture, it bears emphasizing that municipal corporations are
bodies politic and corporate, created not only as local units of local selfgovernment, but as governmental agencies of the state.51 The
legislature, by establishing a municipal corporation, does not divest the
State of any of its sovereignty; absolve itself from its right and duty to
administer the public affairs of the entire state; or divest itself of any
power over the inhabitants of the district which it possesses before the
charter was granted.52
Respondents likewise argue that E.O. No. 205 violates the constitutional
prohibition against impairment of contracts, Resolution No. 210 of
Batangas City Sangguniang Panlungsod being a grant of franchise to
petitioner.

2.

Power of the President over LGUs

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 125350

December 3, 2002

HON. RTC JUDGES MERCEDES G. DADOLE (Executive Judge,

Branch 28),
ULRIC R. CAETE (Presiding Judge, Branch 25),
AGUSTINE R. VESTIL (Presiding Judge, Branch 56),
HON. MTC JUDGES TEMISTOCLES M. BOHOLST (Presiding Judge,
Branch 1),
VICENTE C. FANILAG (Judge Designate, Branch 2),
and WILFREDO A. DAGATAN (Presiding Judge, Branch 3), all of
Mandaue City, petitioners,
vs.
COMMISSION ON AUDIT, respondent.
DECISION
CORONA, J.:
Before us is a petition for certiorari under Rule 64 to annul the
decision1 and resolution2, dated September 21, 1995 and May 28, 1996,
respectively, of the respondent Commission on Audit (COA) affirming the
notices of the Mandaue City Auditor which diminished the monthly
additional allowances received by the petitioner judges of the Regional

Trial Court (RTC) and Municipal Trial Court (MTC) stationed in Mandaue
City.
The undisputed facts are as follows:
In 1986, the RTC and MTC judges of Mandaue City started receiving
monthly allowances of P1,260 each through the yearly appropriation
ordinance enacted by the Sangguniang Panlungsod of the said city. In
1991, Mandaue City increased the amount to P1,500 for each judge.
On March 15, 1994, the Department of Budget and Management (DBM)
issued the disputed Local Budget Circular No. 55 (LBC 55) which
provided that:
"x x x

xxx

xxx

2.3.2. In the light of the authority granted to the local government units
under the Local Government Code to provide for additional allowances
and other benefits to national government officials and employees
assigned in their locality, such additional allowances in the form of
honorarium at rates not exceeding P1,000.00 in provinces and cities and
P700.00 in municipalities may be granted subject to the following
conditions:

Applying the foregoing doctrine, appropriation ordinance of local

government units is subject to the organizational, budgetary and
compensation policies of budgetary authorities (COA 5th Ind., dated
March 17, 1994 re: Province of Antique; COA letter dated May 17, 1994
re: Request of Hon. Renato Leviste, Cong. 1st Dist. Oriental Mindoro). In
this regard, attention is invited to Administrative Order No. 42 issued on
March 3, 1993 by the President of the Philippines clarifying the role of
DBM in the compensation and classification of local government positions
under RA No. 7160 vis-avis the provisions of RA No. 6758 in view of the
abolition of the JCLGPA. Section 1 of said Administrative Order provides
that:
"Section 1. The Department of Budget and Management as the lead
administrator of RA No. 6758 shall, through its Compensation and
Position Classification Bureau, continue to have the following
responsibilities in connection with the implementation of the Local
Government Code of 1991:
a) Provide guidelines on the classification of local government positions
and on the specific rates of pay therefore;
b) Provide criteria and guidelines for the grant of
all allowances and additional forms of compensation to local government
employees; xxx." (underscoring supplied)

a) That the grant is not mandatory on the part of the LGUs;

b) That all contractual and statutory obligations of the LGU including the
implementation of R.A. 6758 shall have been fully provided in the budget;

To operationalize the aforecited presidential directive, DBM issued LBC

No. 55, dated March 15, 1994, whose effectivity clause provides that:
xxx

c) That the budgetary requirements/limitations under Section 324 and

325 of R.A. 7160 should be satisfied and/or complied with; and
d) That the LGU has fully implemented the devolution of
functions/personnel in accordance with R.A. 7160.3" (italics supplied)
xxx

xxx

xxx

The said circular likewise provided for its immediate effectivity without
need of publication:
"5.0 EFFECTIVITY

xxx

xxx

"5.0 EFFECTIVITY
This Circular shall take effect immediately."
It is a well-settled rule that implementing rules and regulations
promulgated by administrative or executive officer in accordance with,
and as authorized by law, has the force and effect of law or partake the
nature of a statute (Victorias Milling Co., Inc., vs. Social Security
Commission, 114 Phil. 555, cited in Agpalo's Statutory Construction, 2nd
Ed. P. 16; Justice Cruz's Phil. Political Law, 1984 Ed., p. 103; Espanol vs.
Phil Veterans Administration, 137 SCRA 314; Antique Sawmills Inc. vs.
Tayco, 17 SCRA 316).

This Circular shall take effect immediately."

xxx
Acting on the DBM directive, the Mandaue City Auditor issued notices of
disallowance to herein petitioners, namely, Honorable RTC Judges
Mercedes G. Dadole, Ulric R. Caete, Agustin R. Vestil, Honorable MTC
Judges Temistocles M. Boholst, Vicente C. Fanilag and Wilfredo A.
Dagatan, in excess of the amount authorized by LBC 55. Beginning
October, 1994, the additional monthly allowances of the petitioner judges
were reduced to P1,000 each. They were also asked to reimburse the
amount they received in excess of P1,000 from April to September, 1994.
The petitioner judges filed with the Office of the City Auditor a protest
against the notices of disallowance. But the City Auditor treated the
protest as a motion for reconsideration and indorsed the same to the
COA Regional Office No. 7. In turn, the COA Regional Office referred the
motion to the head office with a recommendation that the same be
denied.
On September 21, 1995, respondent COA rendered a decision denying
petitioners' motion for reconsideration. The COA held that:
The issue to be resolved in the instant appeal is whether or not the City
Ordinance of Mandaue which provides a higher rate of allowances to the
appellant judges may prevail over that fixed by the DBM under Local
Budget Circular No. 55 dated March 15, 1994.
xxx

xxx

xxx

xxx

xxx

There being no statutory basis to grant additional allowance to judges in

excess of P1,000.00 chargeable against the local government units
where they are stationed, this Commission finds no substantial grounds
or cogent reason to disturb the decision of the City Auditor, Mandaue
City, disallowing in audit the allowances in question. Accordingly, the
above-captioned appeal of the MTC and RTC Judges of Mandaue City,
insofar as the same is not covered by Circular Letter No. 91-7, is hereby
dismissed for lack of merit.
xxx

xxx

x x x4

On November 27, 1995, Executive Judge Mercedes Gozo-Dadole, for

and in behalf of the petitioner judges, filed a motion for reconsideration of
the decision of the COA. In a resolution dated May 28, 1996, the COA
denied the motion.
Hence, this petition for certiorari by the petitioner judges, submitting the
following questions for resolution:
I
HAS THE CITY OF MANDAUE STATUTORY AND CONSTITUTIONAL
BASIS TO PROVIDE ADDITIONAL ALLOWANCES AND OTHER

BENEFITS TO JUDGES STATIONED IN AND ASSIGNED TO THE

CITY?
II
CAN AN ADMINISTRATIVE CIRCULAR OR GUIDELINE SUCH AS
LOCAL BUDGET CIRCULAR NO. 55 RENDER INOPERATIVE THE
POWER OF THE LEGISLATIVE BODY OF A CITY BY SETTING A
LIMIT TO THE EXTENT OF THE EXERCISE OF SUCH POWER?
III
HAS THE COMMISSION ON AUDIT CORRECTLY INTERPRETED
LOCAL BUDGET CIRCULAR NO. 55 TO INCLUDE MEMBERS OF THE
JUDICIARY IN FIXING THE CEILING OF ADDITIONAL ALLOWANCES
AND BENEFITS TO BE PROVIDED TO JUDGES STATIONED IN AND
ASSIGNED TO MANDAUE CITY BY THE CITY GOVERNMENT AT
P1,000.00 PER MONTH NOTWITHSTANDING THAT THEY HAVE
BEEN RECEIVING ALLOWANCES OF P1,500.00 MONTHLY FOR THE
PAST FIVE YEARS?
IV
IS LOCAL BUDGET CIRCULAR NO. 55 DATED MARCH 15, 1994
ISSUED BY THE DEPARTMENT OF BUDGET AND MANAGEMENT
VALID AND ENFORCEABLE CONSIDERING THAT IT WAS NOT DULY
PUBLISHED IN ACCODANCE WITH LAW?5
Petitioner judges argue that LBC 55 is void for infringing on the local
autonomy of Mandaue City by dictating a uniform amount that a local
government unit can disburse as additional allowances to judges
stationed therein. They maintain that said circular is not supported by any
law and therefore goes beyond the supervisory powers of the President.
They further allege that said circular is void for lack of publication.
On the other hand, the yearly appropriation ordinance providing for
additional allowances to judges is allowed by Section 458, par. (a)(1)[xi],
of RA 7160, otherwise known as the Local Government Code of 1991,
which provides that:
Sec. 458. Powers, Duties, Functions and Compensation. (a) The
sangguniang panlungsod, as the legislative body of the city, shall enact
ordinances, approve resolutions and appropriate funds for the general
welfare of the city and its inhabitants pursuant to Section 16 of this Code
and in the proper exercise of the corporate powers of the city as provided
for under Section 22 of this Code, and shall:
(1) Approve ordinances and pass resolutions necessary for an efficient
and effective city government, and in this connection, shall:
xxx

xxx

xxx

(xi) When the finances of the city government allow, provide for additional
allowances and other benefits to judges, prosecutors, public elementary
and high school teachers, and other national government officials
stationed in or assigned to the city; (italics supplied)
Instead of filing a comment on behalf of respondent COA, the Solicitor
General filed a manifestation supporting the position of the petitioner
judges. The Solicitor General argues that (1) DBM only enjoys the power
to review and determine whether the disbursements of funds were made
in accordance with the ordinance passed by a local government unit
while (2) the COA has no more than auditorial visitation powers over local
government units pursuant to Section 348 of RA 7160 which provides for
the power to inspect at any time the financial accounts of local
government units.

Moreover, the Solicitor General opines that "the DBM and the respondent
are only authorized under RA 7160 to promulgate a Budget Operations
Manual for local government units, to improve and systematize methods,
techniques and procedures employed in budget preparation,
authorization, execution and accountability" pursuant to Section 354 of
RA 7160. The Solicitor General points out that LBC 55 was not exercised
under any of the aforementioned provisions.
Respondent COA, on the other hand, insists that the constitutional and
statutory authority of a city government to provide allowances to judges
stationed therein is not absolute. Congress may set limitations on the
exercise of autonomy. It is for the President, through the DBM, to check
whether these legislative limitations are being followed by the local
government units.
One such law imposing a limitation on a local government unit's
autonomy is Section 458, par. (a) (1) [xi], of RA 7160, which authorizes
the disbursement of additional allowances and other benefits to
judges subject to the condition that the finances of the city government
should allow the same. Thus, DBM is merely enforcing the condition of
the law when it sets a uniform maximum amount for the additional
allowances that a city government can release to judges stationed
therein.
Assuming arguendo that LBC 55 is void, respondent COA maintains that
the provisions of the yearly approved ordinance granting additional
allowances to judges are still prohibited by the appropriation laws passed
by Congress every year. COA argues that Mandaue City gets the funds
for the said additional allowances of judges from the Internal Revenue
Allotment (IRA). But the General Appropriations Acts of 1994 and 1995
do not mention the disbursement of additional allowances to judges as
one of the allowable uses of the IRA. Hence, the provisions of said
ordinance granting additional allowances, taken from the IRA, to herein
petitioner judges are void for being contrary to law.
To resolve the instant petition, there are two issues that we must
address: (1) whether LBC 55 of the DBM is void for going beyond the
supervisory powers of the President and for not having been published
and (2) whether the yearly appropriation ordinance enacted by the City of
Mandaue that provides for additional allowances to judges contravenes
the annual appropriation laws enacted by Congress.
We rule in favor of the petitioner judges.
On the first issue, we declare LBC 55 to be null and void.
We recognize that, although our Constitution6 guarantees autonomy to
local government units, the exercise of local autonomy remains subject to
the power of control by Congress and the power of supervision by the
President. Section 4 of Article X of the 1987 Philippine Constitution
provides that:
Sec. 4. The President of the Philippines shall exercise general
supervision over local governments. x x x
In Pimentel vs. Aguirre7, we defined the supervisory power of the
President and distinguished it from the power of control exercised by
Congress. Thus:
This provision (Section 4 of Article X of the 1987 Philippine Constitution)
has been interpreted to exclude the power of control. In Mondano v.
Silvosa,i 5 the Court contrasted the President's power of supervision over
local government officials with that of his power of control over executive
officials of the national government. It was emphasized that the two terms
-- supervision and control -- differed in meaning and extent. The Court
distinguished them as follows:

"x x x In administrative law, supervision means overseeing or the power

or authority of an officer to see that subordinate officers perform their
duties. If the latter fail or neglect to fulfill them, the former may take such
action or step as prescribed by law to make them perform their duties.
Control, on the other hand, means the power of an officer to alter or
modify or nullify or set aside what a subordinate officer ha[s] done in the
performance of his duties and to substitute the judgment of the former for
that of the latter."ii 6
In Taule v. Santos,iii 7 we further stated that the Chief Executive wielded
no more authority than that of checking whether local governments or
their officials were performing their duties as provided by the fundamental
law and by statutes. He cannot interfere with local governments, so long
as they act within the scope of their authority. "Supervisory power, when
contrasted with control, is the power of mere oversight over an inferior
body; it does not include any restraining authority over such body,"iv 8 we
said.
In a more recent case, Drilon v. Lim,v 9 the difference between control
and supervision was further delineated. Officers in control lay down the
rules in the performance or accomplishment of an act. If these rules are
not followed, they may, in their discretion, order the act undone or redone
by their subordinates or even decide to do it themselves. On the other
hand, supervision does not cover such authority. Supervising officials
merely see to it that the rules are followed, but they themselves do not lay
down such rules, nor do they have the discretion to modify or replace
them. If the rules are not observed, they may order the work done or
redone, but only to conform to such rules. They may not prescribe their
own manner of execution of the act. They have no discretion on this
matter except to see to it that the rules are followed.
Under our present system of government, executive power is vested in
the President.vi10 The members of the Cabinet and other executive
officials are merely alter egos. As such, they are subject to the power of
control of the President, at whose will and behest they can be removed
from office; or their actions and decisions changed, suspended or
reversed.vii 11 In contrast, the heads of political subdivisions are elected
by the people. Their sovereign powers emanate from the electorate, to
whom they are directly accountable. By constitutional fiat, they are
subject to the President's supervision only, not control, so long as their
acts are exercised within the sphere of their legitimate powers. By the
same token, the President may not withhold or alter any authority or
power given them by the Constitution and the law.
Clearly then, the President can only interfere in the affairs and activities
of a local government unit if he or she finds that the latter has acted
contrary to law. This is the scope of the President's supervisory powers
over local government units. Hence, the President or any of his or
her alter egos cannot interfere in local affairs as long as the concerned
local government unit acts within the parameters of the law and the
Constitution. Any directive therefore by the President or any of his or
her alter egos seeking to alter the wisdom of a law-conforming judgment
on local affairs of a local government unit is a patent nullity because it
violates the principle of local autonomy and separation of powers of the
executive and legislative departments in governing municipal
corporations.
Does LBC 55 go beyond the law it seeks to implement? Yes.
LBC 55 provides that the additional monthly allowances to be given by a
local government unit should not exceedP1,000 in provinces and cities
and P700 in municipalities. Section 458, par. (a)(1)(xi), of RA 7160, the
law that supposedly serves as the legal basis of LBC 55, allows the grant
of additional allowances to judges "when the finances of the city
government allow." The said provision does not authorize setting a
definite maximum limit to the additional allowances granted to judges.
Thus, we need not belabor the point that the finances of a city
government may allow the grant of additional allowances higher

than P1,000 if the revenues of the said city government exceed its annual
expenditures. Thus, to illustrate, a city government with locally generated
annual revenues of P40 million and expenditures of P35 million can
afford to grant additional allowances of more thanP1,000 each to, say,
ten judges inasmuch as the finances of the city can afford it.
Setting a uniform amount for the grant of additional allowances is an
inappropriate way of enforcing the criterion found in Section 458, par.
(a)(1)(xi), of RA 7160. The DBM over-stepped its power of supervision
over local government units by imposing a prohibition that did not
correspond with the law it sought to implement. In other words, the
prohibitory nature of the circular had no legal basis.
Furthermore, LBC 55 is void on account of its lack of publication, in
violation of our ruling in Taada vs. Tuvera8where we held that:
xxx. Administrative rules and regulations must also be published if their
purpose is to enforce or implement existing law pursuant to a valid
delegation.
Interpretative regulations and those merely internal in nature, that is,
regulating only the personnel of an administrative agency and the public,
need not be published. Neither is publication required of the so-called
letters of instruction issued by administrative superiors concerning the
rules or guidelines to be followed by their subordinates in the
performance of their duties.
Respondent COA claims that publication is not required for LBC 55
inasmuch as it is merely an interpretative regulation applicable to the
personnel of an LGU. We disagree. In De Jesus vs. Commission on
Audit9 where we dealt with the same issue, this Court declared void, for
lack of publication, a DBM circular that disallowed payment of allowances
and other additional compensation to government officials and
employees. In refuting respondent COA's argument that said circular was
merely an internal regulation, we ruled that:
On the need for publication of subject DBM-CCC No. 10, we rule in the
affirmative. Following the doctrine enunciated in Taada v. Tuvera,
publication in the Official Gazette or in a newspaper of general circulation
in the Philippines is required since DBM-CCC No. 10 is in the nature of
an administrative circular the purpose of which is to enforce or implement
an existing law. Stated differently, to be effective and enforceable, DBMCCC No. 10 must go through the requisite publication in the Official
Gazette or in a newspaper of general circulation in the Philippines.
In the present case under scrutiny, it is decisively clear that DBM-CCC
No. 10, which completely disallows payment of allowances and other
additional compensation to government officials and employees, starting
November 1, 1989, is not a mere interpretative or internal regulation. It is
something more than that. And why not, when it tends to deprive
government workers of their allowance and additional compensation
sorely needed to keep body and soul together. At the very least, before
the said circular under attack may be permitted to substantially reduce
their income, the government officials and employees concerned should
be apprised and alerted by the publication of subject circular in the
Official Gazette or in a newspaper of general circulation in the Philippines
to the end that they be given amplest opportunity to voice out whatever
opposition they may have, and to ventilate their stance on the matter.
This approach is more in keeping with democratic precepts and
rudiments of fairness and transparency. (emphasis supplied)
In Philippine International Trading Corporation vs. Commission on
Audit10, we again declared the same circular as void, for lack of
publication, despite the fact that it was re-issued and then submitted for
publication. Emphasizing the importance of publication to the effectivity of
a regulation, we therein held that:

It has come to our knowledge that DBM-CCC No. 10 has been re-issued
in its entirety and submitted for publication in the Official Gazette per
letter to the National Printing Office dated March 9, 1999. Would the
subsequent publication thereof cure the defect and retroact to the time
that the above-mentioned items were disallowed in audit?
The answer is in the negative, precisely for the reason that publication is
required as a condition precedent to the effectivity of a law to inform the
public of the contents of the law or rules and regulations before their
rights and interests are affected by the same. From the time the COA
disallowed the expenses in audit up to the filing of herein petition the
subject circular remained in legal limbo due to its non-publication. As was
stated in Taada v. Tuvera, "prior publication of laws before they become
effective cannot be dispensed with, for the reason that it would deny the
public knowledge of the laws that are supposed to govern it."11
We now resolve the second issue of whether the yearly appropriation
ordinance enacted by Mandaue City providing for fixed allowances for
judges contravenes any law and should therefore be struck down as null
and void.
According to respondent COA, even if LBC 55 were void, the ordinances
enacted by Mandaue City granting additional allowances to the petitioner
judges would "still (be) bereft of legal basis for want of a lawful source of
funds considering that the IRA cannot be used for such purposes."
Respondent COA showed that Mandaue City's funds consisted of locally
generated revenues and the IRA. From 1989 to 1995, Mandaue City's
yearly expenditures exceeded its locally generated revenues, thus
resulting in a deficit. During all those years, it was the IRA that enabled
Mandaue City to incur a surplus. Respondent avers that Mandaue City
used its IRA to pay for said additional allowances and this violated
paragraph 2 of the Special Provisions, page 1060, of RA 7845 (The
General Appropriations Act of 1995)12 and paragraph 3 of the Special
Provision, page 1225, of RA 7663 (The General Appropriations Act of
1994)13 which specifically identified the objects of expenditure of the
IRA. Nowhere in said provisions of the two budgetary laws does it say
that the IRA can be used for additional allowances of judges. Respondent
COA thus argues that the provisions in the ordinance providing for such
disbursement are against the law, considering that the grant of the
subject allowances is not within the specified use allowed by the
aforesaid yearly appropriations acts.
We disagree.
Respondent COA failed to prove that Mandaue City used the IRA to
spend for the additional allowances of the judges. There was no evidence
submitted by COA showing the breakdown of the expenses of the city
government and the funds used for said expenses. All the COA
presented were the amounts expended, the locally generated revenues,
the deficit, the surplus and the IRA received each year. Aside from these
items, no data or figures were presented to show that Mandaue City
deducted the subject allowances from the IRA. In other words, just
because Mandaue City's locally generated revenues were not enough to
cover its expenditures, this did not mean that the additional allowances of
petitioner judges were taken from the IRA and not from the city's own
revenues.
Moreover, the DBM neither conducted a formal review nor ordered a
disapproval of Mandaue City's appropriation ordinances, in accordance
with the procedure outlined by Sections 326 and 327 of RA 7160 which
provide that:
Section 326. Review of Appropriation Ordinances of Provinces, Highly
Urbanized Cities, Independent Component Cities, and Municipalities
within the Metropolitan Manila Area. The Department of Budget and
Management shall review ordinances authorizing the annual or
supplemental appropriations of provinces, highly-urbanized cities,

independent component cities, and municipalities within the Metropolitan

Manila Area in accordance with the immediately succeeding Section.
Section 327. Review of Appropriation Ordinances of Component Cities
and Municipalities.- The sangguninang panlalawigan shall review the
ordinance authorizing annual or supplemental appropriations of
component cities and municipalities in the same manner and within the
same period prescribed for the review of other ordinances.
If within ninety (90) days from receipt of copies of such ordinance, the
sangguniang panlalawigan takes no action thereon, the same shall be
deemed to have been reviewed in accordance with law and shall
continue to be in full force and effect. (emphasis supplied)
Within 90 days from receipt of the copies of the appropriation ordinance,
the DBM should have taken positive action. Otherwise, such ordinance
was deemed to have been properly reviewed and deemed to have taken
effect. Inasmuch as, in the instant case, the DBM did not follow the
appropriate procedure for reviewing the subject ordinance of Mandaue
City and allowed the 90-day period to lapse, it can no longer question the
legality of the provisions in the said ordinance granting additional
allowances to judges stationed in the said city.
WHEREFORE, the petition is hereby GRANTED, and the assailed
decision and resolution, dated September 21, 1995 and May 28, 1996,
respectively, of the Commission on Audit are hereby set aside.
No costs.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 132988

July 19, 2000

AQUILINO Q. PIMENTEL JR., petitioner,

vs.
Hon. ALEXANDER AGUIRRE in his capacity as Executive Secretary,
Hon. EMILIA BONCODIN in her capacity as Secretary of the
Department of Budget and Management, respondents.
ROBERTO PAGDANGANAN, intervenor.
DECISION
PANGANIBAN, J.:
The Constitution vests the President with the power of supervision, not
control, over local government units (LGUs). Such power enables him to
see to it that LGUs and their officials execute their tasks in accordance
with law. While he may issue advisories and seek their cooperation in
solving economic difficulties, he cannot prevent them from performing
their tasks and using available resources to achieve their goals. He may
not withhold or alter any authority or power given them by the law. Thus,
the withholding of a portion of internal revenue allotments legally due
them cannot be directed by administrative fiat.
The Case
Before us is an original Petition for Certiorari and Prohibition seeking (1)
to annul Section 1 of Administrative Order (AO) No. 372, insofar as it
requires local government units to reduce their expenditures by 25
percent of their authorized regular appropriations for non-personal
services; and (2) to enjoin respondents from implementing Section 4 of
the Order, which withholds a portion of their internal revenue allotments.

On November 17, 1998, Roberto Pagdanganan, through Counsel Alberto

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

f. Conduct of cultural and social celebrations and sports activities, except

those associated with the Philippine Centennial celebration and those
involving regular competitions/events;
g. Grant of honoraria, except in cases where it constitutes the only source
of compensation from government received by the person concerned;
h. Publications, media advertisements and related items, except those
required by law or those already being undertaken on a regular basis;

The Facts and the Arguments

On December 27, 1997, the President of the Philippines issued AO 372.
Its full text, with emphasis on the assailed provisions, is as follows:
"ADMINISTRATIVE ORDER NO. 372
ADOPTION OF ECONOMY MEASURES IN GOVERNMENT FOR FY
1998
WHEREAS, the current economic difficulties brought about by the peso
depreciation requires continued prudence in government fiscal
management to maintain economic stability and sustain the country's
growth momentum;

i. Grant of new/additional benefits to employees, except those expressly

and specifically authorized by law; and
j. Donations, contributions, grants and gifts, except those given by
institutions to victims of calamities.
3. Suspension of all tax expenditure subsidies to all GOCCs and LGUs
4. Reduction in the volume of consumption of fuel, water, office supplies,
electricity and other utilities
5. Deferment of projects that are encountering significant implementation
problems

WHEREAS, it is imperative that all government agencies adopt cash

management measures to match expenditures with available resources;

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

reserves

NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Republic of

the Philippines, by virtue of the powers vested in me by the Constitution,
do hereby order and direct:

SECTION 2. Agencies are given the flexibility to identify the specific

sources of cost-savings, provided the 25% minimum savings under
Section 1 is complied with.

SECTION 1. All government departments and agencies, including state

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

SECTION 3. A report on the estimated savings generated from these

measures shall be submitted to the Office of the President, through the
Department of Budget and Management, on a quarterly basis using the
attached format.

1. Continued implementation of the streamlining policy on organization

and staffing by deferring action on the following:

SECTION 4. Pending the assessment and evaluation by the

Development Budget Coordinating Committee of the emerging fiscal
situation, the amount equivalent to 10% of the internal revenue allotment
to local government units shall be withheld.

c. Filling of positions; and

SECTION 5. The Development Budget Coordination Committee shall

conduct a monthly review of the fiscal position of the National
Government and if necessary, shall recommend to the President the
imposition of additional reserves or the lifting of previously imposed
reserves.

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

regardless of funding source.

SECTION 6. This Administrative Order shall take effect January 1, 1998

and shall remain valid for the entire year unless otherwise lifted.

2. Suspension of the following activities:

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

a. Operationalization of new agencies;

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

a. Implementation of new capital/infrastructure projects, except those

which have already been contracted out;
b. Acquisition of new equipment and motor vehicles;
c. All foreign travels of government personnel, except those associated
with scholarships and trainings funded by grants;
d. Attendance in conferences abroad where the cost is charged to the
government except those clearly essential to Philippine commitments in
the international field as may be determined by the Cabinet;
e. Conduct of trainings/workshops/seminars, except those conducted by
government training institutions and agencies in the performance of their
regular functions and those that are funded by grants;

Subsequently, on December 10, 1998, President Joseph E. Estrada

issued AO 43, amending Section 4 of AO 372, by reducing to five percent
(5%) the amount of internal revenue allotment (IRA) to be withheld from
the LGUs.
Petitioner contends that the President, in issuing AO 372, was in effect
exercising the power of control over LGUs. The Constitution vests in the
President, however, only the power of general supervision over LGUs,
consistent with the principle of local autonomy. Petitioner further argues
that the directive to withhold ten percent (10%) of their IRA is in
contravention of Section 286 of the Local Government Code and of
Section 6, Article X of the Constitution, providing for the automatic
release to each of these units its share in the national internal revenue.
The solicitor general, on behalf of the respondents, claims on the other
hand that AO 372 was issued to alleviate the "economic difficulties

brought about by the peso devaluation" and constituted merely an

exercise of the President's power of supervision over LGUs. It allegedly
does not violate local fiscal autonomy, because it merelydirects local
governments to identify measures that will reduce their total expenditures
for non-personal services by at least 25 percent. Likewise, the
withholding of 10 percent of the LGUs IRA does not violate the statutory
prohibition on the imposition of any lien or holdback on their revenue
shares, because such withholding is "temporary in nature pending the
assessment and evaluation by the Development Coordination Committee
of the emerging fiscal situation."

performance of his duties and to substitute the judgment of the former for
that of the latter."6
In Taule v. Santos,7 we further stated that the Chief Executive wielded no
more authority than that of checking whether local governments or their
officials were performing their duties as provided by the fundamental law
and by statutes. He cannot interfere with local governments, so long as
they act within the scope of their authority. "Supervisory power, when
contrasted with control, is the power of mere oversight over an inferior
body; it does not include any restraining authority over such body,"8 we
said.

The Issues
The Petition3 submits the following issues for the Court's resolution:
"A. Whether or not the president committed grave abuse of discretion [in]
ordering all LGUS to adopt a 25% cost reduction program in violation of
the LGU[']S fiscal autonomy
"B. Whether or not the president committed grave abuse of discretion in
ordering the withholding of 10% of the LGU[']S IRA"
In sum, the main issue is whether (a) Section 1 of AO 372, insofar as it
"directs" LGUs to reduce their expenditures by 25 percent; and (b)
Section 4 of the same issuance, which withholds 10 percent of their
internal revenue allotments, are valid exercises of the President's power
of general supervision over local governments.
Additionally, the Court deliberated on the question whether petitioner had
the locus standi to bring this suit, despite respondents' failure to raise the
issue.4 However, the intervention of Roberto Pagdanganan has rendered
academic any further discussion on this matter.
The Court's Ruling
The Petition is partly meritorious.
Main Issue:
Validity of AO 372
Insofar as LGUs Are Concerned
Before resolving the main issue, we deem it important and appropriate to
define certain crucial concepts: (1) the scope of the President's power of
general supervision over local governments and (2) the extent of the local
governments' autonomy.
Scope of President's Power of Supervision Over LGUs
Section 4 of Article X of the Constitution confines the President's power
over local governments to one of general supervision. It reads as follows:
"Sec. 4. The President of the Philippines shall exercise general
supervision over local governments. x x x"
This provision has been interpreted to exclude the power of control.
In Mondano v. Silvosa,5 the Court contrasted the President's power of
supervision over local government officials with that of his power of
control over executive officials of the national government. It was
emphasized that the two terms -- supervision and control -- differed in
meaning and extent. The Court distinguished them as follows:
"x x x In administrative law, supervision means overseeing or the power
or authority of an officer to see that subordinate officers perform their
duties. If the latter fail or neglect to fulfill them, the former may take such
action or step as prescribed by law to make them perform their duties.
Control, on the other hand, means the power of an officer to alter or
modify or nullify or set aside what a subordinate officer ha[s] done in the

In a more recent case, Drilon v. Lim,9 the difference between control and
supervision was further delineated. Officers in control lay down the rules
in the performance or accomplishment of an act. If these rules are not
followed, they may, in their discretion, order the act undone or redone by
their subordinates or even decide to do it themselves. On the other hand,
supervision does not cover such authority. Supervising officials merely
see to it that the rules are followed, but they themselves do not lay down
such rules, nor do they have the discretion to modify or replace them. If
the rules are not observed, they may order the work done or redone, but
only to conform to such rules. They may not prescribe their own manner
of execution of the act. They have no discretion on this matter except to
see to it that the rules are followed.
Under our present system of government, executive power is vested in
the President.10 The members of the Cabinet and other executive
officials are merely alter egos. As such, they are subject to the power of
control of the President, at whose will and behest they can be removed
from office; or their actions and decisions changed, suspended or
reversed.11 In contrast, the heads of political subdivisions are elected by
the people. Their sovereign powers emanate from the electorate, to
whom they are directly accountable. By constitutional fiat, they are
subject to the Presidents supervision only, not control, so long as their
acts are exercised within the sphere of their legitimate powers. By the
same token, the President may not withhold or alter any authority or
power given them by the Constitution and the law.
Extent of Local Autonomy
Hand in hand with the constitutional restraint on the President's power
over local governments is the state policy of ensuring local autonomy.12
In Ganzon v. Court of Appeals,13 we said that local autonomy signified "a
more responsive and accountable local government structure instituted
through a system of decentralization." The grant of autonomy is intended
to "break up the monopoly of the national government over the affairs of
local governments, x x x not x x x to end the relation of partnership and
interdependence between the central administration and local
government units x x x." Paradoxically, local governments are still subject
to regulation, however limited, for the purpose of enhancing selfgovernment.14
Decentralization simply means the devolution of national administration,
not power, to local governments. Local officials remain accountable to the
central government as the law may provide.15 The difference between
decentralization of administration and that of power was explained in
detail in Limbona v. Mangelin16 as follows:
"Now, autonomy is either decentralization of administration or
decentralization of power. There is decentralization of administration
when the central government delegates administrative powers to political
subdivisions in order to broaden the base of government power and in
the process to make local governments 'more responsive and
accountable,'17 and 'ensure their fullest development as self-reliant
communities and make them more effective partners in the pursuit of
national development and social progress.'18 At the same time, it relieves
the central government of the burden of managing local affairs and

enables it to concentrate on national concerns. The President exercises

'general supervision'19 over them, but only to 'ensure that local affairs are
administered according to law.'20 He has no control over their acts in the
sense that he can substitute their judgments with his own.21
Decentralization of power, on the other hand, involves an abdication of
political power in the favor of local government units declared to be
autonomous. In that case, the autonomous government is free to chart its
own destiny and shape its future with minimum intervention from central
authorities. According to a constitutional author, decentralization of power
amounts to 'self-immolation,' since in that event, the autonomous
government becomes accountable not to the central authorities but to its
constituency."22
Under the Philippine concept of local autonomy, the national government
has not completely relinquished all its powers over local governments,
including autonomous regions. Only administrative powers over local
affairs are delegated to political subdivisions. The purpose of the
delegation is to make governance more directly responsive and effective
at the local levels. In turn, economic, political and social development at
the smaller political units are expected to propel social and economic
growth and development. But to enable the country to develop as a
whole, the programs and policies effected locally must be integrated and
coordinated towards a common national goal. Thus, policy-setting for the
entire country still lies in the President and Congress. As we stated
in Magtajas v. Pryce Properties Corp., Inc., municipal governments are
still agents of the national government.23
The Nature of AO 372
Consistent with the foregoing jurisprudential precepts, let us now look into
the nature of AO 372. As its preambular clauses declare, the Order was a
"cash management measure" adopted by the government "to match
expenditures with available resources," which were presumably depleted
at the time due to "economic difficulties brought about by the peso
depreciation." Because of a looming financial crisis, the President
deemed it necessary to "direct all government agencies, state universities
and colleges, government-owned and controlled corporations as well as
local governments to reduce their total expenditures by at least 25
percent along suggested areas mentioned in AO 372.
Under existing law, local government units, in addition to having
administrative autonomy in the exercise of their functions, enjoy fiscal
autonomy as well. Fiscal autonomy means that local governments have
the power to create their own sources of revenue in addition to their
equitable share in the national taxes released by the national
government, as well as the power to allocate their resources in
accordance with their own priorities. It extends to the preparation of their
budgets, and local officials in turn have to work within the constraints
thereof. They are not formulated at the national level and imposed on
local governments, whether they are relevant to local needs and
resources or not. Hence, the necessity of a balancing of viewpoints and
the harmonization of proposals from both local and national
officials,24 who in any case are partners in the attainment of national
goals.
Local fiscal autonomy does not however rule out any manner of national
government intervention by way of supervision, in order to ensure that
local programs, fiscal and otherwise, are consistent with national goals.
Significantly, the President, by constitutional fiat, is the head of the
economic and planning agency of the government,25 primarily
responsible for formulating and implementing continuing, coordinated and
integrated social and economic policies, plans and programs26 for the
entire country. However, under the Constitution, the formulation and the
implementation of such policies and programs are subject to
"consultations with the appropriate public agencies, various private
sectors, and local government units." The President cannot do so
unilaterally.

Consequently, the Local Government Code provides:27

"x x x [I]n the event the national government incurs an unmanaged public
sector deficit, the President of the Philippines is hereby authorized, upon
the recommendation of [the] Secretary of Finance, Secretary of the
Interior and Local Government and Secretary of Budget and
Management, and subject to consultation with the presiding officers of
both Houses of Congress and the presidents of the liga, to make the
necessary adjustments in the internal revenue allotment of local
government units but in no case shall the allotment be less than thirty
percent (30%) of the collection of national internal revenue taxes of the
third fiscal year preceding the current fiscal year x x x."
There are therefore several requisites before the President may interfere
in local fiscal matters: (1) an unmanaged public sector deficit of the
national government; (2) consultations with the presiding officers of the
Senate and the House of Representatives and the presidents of the
various local leagues; and (3) the corresponding recommendation of the
secretaries of the Department of Finance, Interior and Local Government,
and Budget and Management. Furthermore, any adjustment in the
allotment shall in no case be less than thirty percent (30%) of the
collection of national internal revenue taxes of the third fiscal year
preceding the current one.
Petitioner points out that respondents failed to comply with these
requisites before the issuance and the implementation of AO 372. At the
very least, they did not even try to show that the national government was
suffering from an unmanageable public sector deficit. Neither did they
claim having conducted consultations with the different leagues of local
governments. Without these requisites, the President has no authority to
adjust, much less to reduce, unilaterally the LGU's internal revenue
allotment.
The solicitor general insists, however, that AO 372 is merely directory
and has been issued by the President consistent with his power of
supervision over local governments. It is intended only to advise all
government agencies and instrumentalities to undertake cost-reduction
measures that will help maintain economic stability in the country, which
is facing economic difficulties. Besides, it does not contain any sanction
in case of noncompliance. Being merely an advisory, therefore, Section 1
of AO 372 is well within the powers of the President. Since it is not a
mandatory imposition, the directive cannot be characterized as an
exercise of the power of control.
While the wordings of Section 1 of AO 372 have a rather commanding
tone, and while we agree with petitioner that the requirements of Section
284 of the Local Government Code have not been satisfied, we are
prepared to accept the solicitor general's assurance that the directive to
"identify and implement measures x x x that will reduce total expenditures
x x x by at least 25% of authorized regular appropriation" is merely
advisory in character, and does not constitute a mandatory or binding
order that interferes with local autonomy. The language used, while
authoritative, does not amount to a command that emanates from a boss
to a subaltern.
Rather, the provision is merely an advisory to prevail upon local
executives to recognize the need for fiscal restraint in a period of
economic difficulty. Indeed, all concerned would do well to heed the
President's call to unity, solidarity and teamwork to help alleviate the
crisis. It is understood, however, that no legal sanction may be imposed
upon LGUs and their officials who do not follow such advice. It is in this
light that we sustain the solicitor general's contention in regard to Section
1.
Withholding a Part of LGUs' IRA
Section 4 of AO 372 cannot, however, be upheld. A basic feature of local
fiscal autonomy is the automatic release of the shares of LGUs in the

national internal revenue. This is mandated by no less than the

Constitution.28 The Local Government Code29 specifies further that the
release shall be made directly to the LGU concerned within five (5) days
after every quarter of the year and "shall not be subject to any lien or
holdback that may be imposed by the national government for whatever
purpose."30 As a rule, the term "shall" is a word of command that must
be given a compulsory meaning.31 The provision is, therefore,
imperative.

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

Section 4 of AO 372, however, orders the withholding, effective January

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

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

In sum, while Section 1 of AO 372 may be upheld as an advisory effected

in times of national crisis, Section 4 thereof has no color of validity at all.
The latter provision effectively encroaches on the fiscal autonomy of local
governments. Concededly, the President was well-intentioned in issuing
his Order to withhold the LGUs IRA, but the rule of law requires that even
the best intentions must be carried out within the parameters of the
Constitution and the law. Verily, laudable purposes must be carried out
by legal methods.
Refutation of Justice Kapunan's Dissent
Mr. Justice Santiago M. Kapunan dissents from our Decision on the
grounds that, allegedly, (1) the Petition is premature; (2) AO 372 falls
within the powers of the President as chief fiscal officer; and (3) the
withholding of the LGUs IRA is implied in the President's authority to
adjust it in case of an unmanageable public sector deficit.
First, on prematurity. According to the Dissent, when "the conduct has not
yet occurred and the challenged construction has not yet been adopted
by the agency charged with administering the administrative order, the
determination of the scope and constitutionality of the executive action in
advance of its immediate adverse effect involves too remote and abstract
an inquiry for the proper exercise of judicial function."
This is a rather novel theory -- that people should await the implementing
evil to befall on them before they can question acts that are illegal or
unconstitutional. Be it remembered that the real issue here is whether the
Constitution and the law are contravened by Section 4 of AO 372, not
whether they are violated by the acts implementing it. In the unanimous
en banc case Taada v. Angara,33 this Court held that when an act of
the legislative department is seriously alleged to have infringed the
Constitution, settling the controversy becomes the duty of this Court. By
the mere enactment of the questioned law or the approval of the
challenged action, the dispute is said to have ripened into a judicial
controversy even without any other overt act. Indeed, even a singular
violation of the Constitution and/or the law is enough to awaken judicial
duty. Said the Court:
"In seeking to nullify an act of the Philippine Senate on the ground that it
contravenes the Constitution, the petition no doubt raises a justiciable
controversy. Where an action of the legislative branch is seriously alleged
to have infringed the Constitution, it becomes not only the right but in fact
the duty of the judiciary to settle the dispute. 'The question thus posed is
judicial rather than political. The duty (to adjudicate) remains to assure
that the supremacy of the Constitution is upheld.'34 Once a 'controversy
as to the application or interpretation of a constitutional provision is raised
before this Court x x x , it becomes a legal issue which the Court is bound
by constitutional mandate to decide.'35
xxx

xxx

xxx

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

By the same token, when an act of the President, who in our

constitutional scheme is a coequal of Congress, is seriously alleged to
have infringed the Constitution and the laws, as in the present case,
settling the dispute becomes the duty and the responsibility of the courts.
Besides, the issue that the Petition is premature has not been raised by
the parties; hence it is deemed waived. Considerations of due process
really prevents its use against a party that has not been given sufficient
notice of its presentation, and thus has not been given the opportunity to
refute it.38
Second, on the President's power as chief fiscal officer of the country.
Justice Kapunan posits that Section 4 of AO 372 conforms with the
President's role as chief fiscal officer, who allegedly "is clothed by law
with certain powers to ensure the observance of safeguards and auditing
requirements, as well as the legal prerequisites in the release and use of
IRAs, taking into account the constitutional and statutory
mandates."39 He cites instances when the President may lawfully
intervene in the fiscal affairs of LGUs.
Precisely, such powers referred to in the Dissent have specifically been
authorized by law and have not been challenged as violative of the
Constitution. On the other hand, Section 4 of AO 372, as explained
earlier, contravenes explicit provisions of the Local Government Code
(LGC) and the Constitution. In other words, the acts alluded to in the
Dissent are indeed authorized by law; but, quite the opposite, Section 4
of AO 372 is bereft of any legal or constitutional basis.
Third, on the President's authority to adjust the IRA of LGUs in case of an
unmanageable public sector deficit. It must be emphasized that in striking
down Section 4 of AO 372, this Court is not ruling out any form of
reduction in the IRAs of LGUs. Indeed, as the President may make
necessary adjustments in case of an unmanageable public sector deficit,
as stated in the main part of this Decision, and in line with Section 284 of
the LGC, which Justice Kapunan cites. He, however, merely glances over
a specific requirement in the same provision -- that such reduction is
subject to consultation with the presiding officers of both Houses of
Congress and, more importantly, with the presidents of the leagues of
local governments.
Notably, Justice Kapunan recognizes the need for "interaction between
the national government and the LGUs at the planning level," in order to
ensure that "local development plans x x x hew to national policies and
standards." The problem is that no such interaction or consultation was
ever held prior to the issuance of AO 372. This is why the petitioner and
the intervenor (who was a provincial governor and at the same time
president of the League of Provinces of the Philippines and chairman of
the League of Leagues of Local Governments) have protested and

instituted this action. Significantly, respondents do not deny the lack of

consultation.
In addition, Justice Kapunan cites Section 28740 of the LGC as impliedly
authorizing the President to withhold the IRA of an LGU, pending its
compliance with certain requirements. Even a cursory reading of the
provision reveals that it is totally inapplicable to the issue at bar. It directs
LGUs to appropriate in their annual budgets 20 percent of their respective
IRAs for development projects. It speaks of no positive power granted the
President to priorly withhold any amount. Not at all.
WHEREFORE, the Petition is GRANTED. Respondents and their
successors are hereby permanentlyPROHIBITED from implementing
Administrative Order Nos. 372 and 43, respectively dated December 27,
1997 and December 10, 1998, insofar as local government units are
concerned.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila

appropriate rules and regulations necessary for its effective

implementation.2Further, to address the funding shortfalls of functions
and services devolved to the LGUs and other funding requirements of the
program, the "Devolution Adjustment and Equalization Fund" was
created.3 For 1998, the DBM was directed to set aside an amount to be
determined by the Oversight Committee based on the devolution status
appraisal surveys undertaken by the DILG.4 The initial fund was to be
sourced from the available savings of the national government for CY
1998.5 For 1999 and the succeeding years, the corresponding amount
required to sustain the program was to be incorporated in the annual
GAA.6 The Oversight Committee has been authorized to issue the
implementing rules and regulations governing the equitable allocation
and distribution of said fund to the LGUs.7
The LGSEF in the GAA of 1999
In Republic Act No. 8745, otherwise known as the GAA of 1999, the
program was renamed as the LOCAL GOVERNMENT SERVICE
EQUALIZATION FUND (LGSEF). Under said appropriations law, the
amount ofP96,780,000,000 was allotted as the share of the LGUs in the
internal revenue taxes. Item No. 1, Special Provisions, Title XXXVI A.
Internal Revenue Allotment of Rep. Act No. 8745 contained the following
proviso:

EN BANC
G.R. No. 152774

May 27, 2004

THE PROVINCE OF BATANGAS, represented by its Governor,

HERMILANDO I. MANDANAS, petitioner,
vs.
HON. ALBERTO G. ROMULO, Executive Secretary and Chairman of
the Oversight Committee on Devolution; HON. EMILIA BONCODIN,
Secretary, Department of Budget and Management; HON. JOSE D.
LINA, JR., Secretary, Department of Interior and Local
Government, respondents.
DECISION
CALLEJO, SR., J.:
The Province of Batangas, represented by its Governor, Hermilando I.
Mandanas, filed the present petition for certiorari, prohibition and
mandamus under Rule 65 of the Rules of Court, as amended, to declare
as unconstitutional and void certain provisos contained in the General
Appropriations Acts (GAA) of 1999, 2000 and 2001, insofar as they
uniformly earmarked for each corresponding year the amount of five
billion pesos (P5,000,000,000.00) of the Internal Revenue Allotment
(IRA) for the Local Government Service Equalization Fund (LGSEF) and
imposed conditions for the release thereof.
Named as respondents are Executive Secretary Alberto G. Romulo, in
his capacity as Chairman of the Oversight Committee on Devolution,
Secretary Emilia Boncodin of the Department of Budget and
Management (DBM) and Secretary Jose Lina of the Department of
Interior and Local Government (DILG).
Background
On December 7, 1998, then President Joseph Ejercito Estrada issued
Executive Order (E.O.) No. 48 entitled "ESTABLISHING A PROGRAM
FOR DEVOLUTION ADJUSTMENT AND EQUALIZATION." The program
was established to "facilitate the process of enhancing the capacities of
local government units (LGUs) in the discharge of the functions and
services devolved to them by the National Government Agencies
concerned pursuant to the Local Government Code."1 The Oversight
Committee (referred to as the Devolution Committee in E.O. No. 48)
constituted under Section 533(b) of Republic Act No. 7160 (The Local
Government Code of 1991) has been tasked to formulate and issue the

... PROVIDED, That the amount of FIVE BILLION PESOS

(P5,000,000,000) shall be earmarked for the Local Government Service
Equalization Fund for the funding requirements of projects and activities
arising from the full and efficient implementation of devolved functions
and services of local government units pursuant to R.A. No. 7160,
otherwise known as the Local Government Code of 1991: PROVIDED,
FURTHER, That such amount shall be released to the local government
units subject to the implementing rules and regulations, including such
mechanisms and guidelines for the equitable allocations and distribution
of said fund among local government units subject to the guidelines that
may be prescribed by the Oversight Committee on Devolution as
constituted pursuant to Book IV, Title III, Section 533(b) of R.A. No. 7160.
The Internal Revenue Allotment shall be released directly by the
Department of Budget and Management to the Local Government Units
concerned.
On July 28, 1999, the Oversight Committee (with then Executive
Secretary Ronaldo B. Zamora as Chairman) passed Resolution Nos.
OCD-99-003, OCD-99-005 and OCD-99-006 entitled as follows:
OCD-99-005
RESOLUTION ADOPTING THE ALLOCATION SCHEME FOR THE
PhP5 BILLION CY 1999 LOCAL GOVERNMENT SERVICE
EQUALIZATION FUND (LGSEF) AND REQUESTING HIS
EXCELLENCY PRESIDENT JOSEPH EJERCITO ESTRADA TO
APPROVE SAID ALLOCATION SCHEME.
OCD-99-006
RESOLUTION ADOPTING THE ALLOCATION SCHEME FOR THE
PhP4.0 BILLION OF THE 1999 LOCAL GOVERNMENT SERVICE
EQUALIZATION FUND AND ITS CONCOMITANT GENERAL
FRAMEWORK, IMPLEMENTING GUIDELINES AND MECHANICS FOR
ITS IMPLEMENTATION AND RELEASE, AS PROMULGATED BY THE
OVERSIGHT COMMITTEE ON DEVOLUTION.
OCD-99-003
RESOLUTION REQUESTING HIS EXCELLENCY PRESIDENT JOSEPH
EJERCITO ESTRADA TO APPROVE THE REQUEST OF THE
OVERSIGHT COMMITTEE ON DEVOLUTION TO SET ASIDE TWENTY
PERCENT (20%) OF THE LOCAL GOVERNMENT SERVICE
EQUALIZATION FUND (LGSEF) FOR LOCAL AFFIRMATIVE ACTION

PROJECTS AND OTHER PRIORITY INITIATIVES FOR LGUs

INSTITUTIONAL AND CAPABILITY BUILDING IN ACCORDANCE WITH
THE IMPLEMENTING GUIDELINES AND MECHANICS AS
PROMULGATED BY THE COMMITTEE.

b. delivery of social welfare services;

These OCD resolutions were approved by then President Estrada on

October 6, 1999.

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

Under the allocation scheme adopted pursuant to Resolution No. OCD99-005, the five billion pesos LGSEF was to be allocated as follows:

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

community development;

e. improvement of community-based forestry projects and other local

projects on environment and natural resources protection and
conservation;

1. The PhP4 Billion of the LGSEF shall be allocated in accordance with

the allocation scheme and implementing guidelines and mechanics
promulgated and adopted by the OCD. To wit:

f. improvement of tourism facilities and promotion of tourism;

a. The first PhP2 Billion of the LGSEF shall be allocated in accordance

with the codal formula sharing scheme as prescribed under the 1991
Local Government Code;

h. construction, repair and maintenance of public works and

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

b. The second PhP2 Billion of the LGSEF shall be allocated in

accordance with a modified 1992 cost of devolution fund (CODEF)
sharing scheme, as recommended by the respective leagues of
provinces, cities and municipalities to the OCD. The modified CODEF
sharing formula is as follows:
Province : 40%

g. peace and order and public safety;

i. provision of local electrification facilities;

j. livelihood and food production services, facilities and equipment;
k. other projects that may be authorized by the OCD consistent with the
aforementioned objectives and guidelines;

Cities : 20%
Municipalities : 40%
This is applied to the P2 Billion after the approved amounts granted to
individual provinces, cities and municipalities as assistance to cover
decrease in 1999 IRA share due to reduction in land area have been
taken out.
2. The remaining PhP1 Billion of the LGSEF shall be earmarked to
support local affirmative action projects and other priority initiatives
submitted by LGUs to the Oversight Committee on Devolution for
approval in accordance with its prescribed guidelines as promulgated and
adopted by the OCD.

4. Except on extremely meritorious cases, as may be determined by the

Oversight Committee on Devolution, this portion of the LGSEF shall not
be used in expenditures for personal costs or benefits under existing laws
applicable to governments. Generally, this fund shall cover the following
objects of expenditures for programs, projects and activities arising from
the implementation of devolved and regular functions and services:
a. acquisition/procurement of supplies and materials critical to the full and
effective implementation of devolved programs, projects and activities;
b. repair and/or improvement of facilities;
c. repair and/or upgrading of equipment;

In Resolution No. OCD-99-003, the Oversight Committee set aside the

one billion pesos or 20% of the LGSEF to support Local Affirmative
Action Projects (LAAPs) of LGUs. This remaining amount was intended
to "respond to the urgent need for additional funds assistance, otherwise
not available within the parameters of other existing fund sources." For
LGUs to be eligible for funding under the one-billion-peso portion of the
LGSEF, the OCD promulgated the following:

d. acquisition of basic equipment;

III. CRITERIA FOR ELIGIBILITY:

5. To be eligible for funding, an LGU or group of LGU shall submit to the

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

1. LGUs (province, city, municipality, or barangay), individually or by

group or multi-LGUs or leagues of LGUs, especially those belonging to
the 5th and 6th class, may access the fund to support any projects or
activities that satisfy any of the aforecited purposes. A barangay may also
access this fund directly or through their respective municipality or city.
2. The proposed project/activity should be need-based, a local priority,
with high development impact and are congruent with the socio-cultural,
economic and development agenda of the Estrada Administration, such
as food security, poverty alleviation, electrification, and peace and order,
among others.

e. construction of additional or new facilities;

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

(a) general description or brief of the project;

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

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

a. delivery of local health and sanitation services, hospital services and

other tertiary services;

(c) target outputs or key result areas;

(d) schedule of activities and details of requirements;

(e) total cost requirement of the project;
(f) proponent's counterpart funding share, if any, and identified source(s)
of counterpart funds for the full implementation of the project;
(g) requested amount of project cost to be covered by the LGSEF.
Further, under the guidelines formulated by the Oversight Committee as
contained in Attachment - Resolution No. OCD-99-003, the LGUs were
required to identify the projects eligible for funding under the one-billionpeso portion of the LGSEF and submit the project proposals thereof and
other documentary requirements to the DILG for appraisal. The project
proposals that passed the DILG's appraisal would then be submitted to
the Oversight Committee for review, evaluation and approval. Upon its
approval, the Oversight Committee would then serve notice to the DBM
for the preparation of the Special Allotment Release Order (SARO) and
Notice of Cash Allocation (NCA) to effect the release of funds to the said
LGUs.
The LGSEF in the GAA of 2000
Under Rep. Act No. 8760, otherwise known as the GAA of 2000, the
amount of P111,778,000,000 was allotted as the share of the LGUs in the
internal revenue taxes. As in the GAA of 1999, the GAA of 2000
contained a proviso earmarking five billion pesos of the IRA for the
LGSEF. This proviso, found in Item No. 1, Special Provisions, Title
XXXVII A. Internal Revenue Allotment, was similarly worded as that
contained in the GAA of 1999.
The Oversight Committee, in its Resolution No. OCD-2000-023 dated
June 22, 2000, adopted the following allocation scheme governing the
five billion pesos LGSEF for 2000:
1. The PhP3.5 Billion of the CY 2000 LGSEF shall be allocated to and
shared by the four levels of LGUs, i.e., provinces, cities, municipalities,
and barangays, using the following percentage-sharing formula agreed
upon and jointly endorsed by the various Leagues of LGUs:

2. The remaining P1,500,000,000 of the CY 2000 LGSEF shall be

earmarked to support the following initiatives and local affirmative action
projects, to be endorsed to and approved by the Oversight Committee on
Devolution in accordance with the OCD agreements, guidelines,
procedures and documentary requirements:
On July 5, 2000, then President Estrada issued a Memorandum
authorizing then Executive Secretary Zamora and the DBM to implement
and release the 2.5 billion pesos LGSEF for 2000 in accordance with
Resolution No. OCD-2000-023.
Thereafter, the Oversight Committee, now under the administration of
President Gloria Macapagal-Arroyo, promulgated Resolution No. OCD2001-29 entitled "ADOPTING RESOLUTION NO. OCD-2000-023 IN THE
ALLOCATION, IMPLEMENTATION AND RELEASE OF THE
REMAINING P2.5 BILLION LGSEF FOR CY 2000." Under this resolution,
the amount of one billion pesos of the LGSEF was to be released in
accordance with paragraph 1 of Resolution No. OCD-2000-23, to
complete the 3.5 billion pesos allocated to the LGUs, while the amount of
1.5 billion pesos was allocated for the LAAP. However, out of the latter
amount, P400,000,000 was to be allocated and released as
follows: P50,000,000 as financial assistance to the LAAPs of
LGUs; P275,360,227 as financial assistance to cover the decrease in the
IRA of LGUs concerned due to reduction in land area; and P74,639,773
for the LGSEF Capability-Building Fund.
The LGSEF in the GAA of 2001
In view of the failure of Congress to enact the general appropriations law
for 2001, the GAA of 2000 was deemed re-enacted, together with the IRA
of the LGUs therein and the proviso earmarking five billion pesos thereof
for the LGSEF.
On January 9, 2002, the Oversight Committee adopted Resolution No.
OCD-2002-001 allocating the five billion pesos LGSEF for 2001 as
follows:

For Provinces 26% or P 910,000,000

Modified Codal Formula

P 3.000 billion

Priority Projects

1.900 billion

Capability Building Fund

.100 billion

For Cities 23% or 805,000,000

For Municipalities 35% or 1,225,000,000
For Barangays 16% or 560,000,000
Provided that the respective Leagues representing the provinces, cities,
municipalities and barangays shall draw up and adopt the horizontal
distribution/sharing schemes among the member LGUs whereby the
Leagues concerned may opt to adopt direct financial assistance or
project-based arrangement, such that the LGSEF allocation for individual
LGU shall be released directly to the LGU concerned;
Provided further that the individual LGSEF shares to LGUs are used in
accordance with the general purposes and guidelines promulgated by the
OCD for the implementation of the LGSEF at the local levels pursuant to
Res. No. OCD-99-006 dated October 7, 1999 and pursuant to the
Leagues' guidelines and mechanism as approved by the OCD;
Provided further that each of the Leagues shall submit to the OCD for its
approval their respective allocation scheme, the list of LGUs with the
corresponding LGSEF shares and the corresponding project categories if
project-based;
Provided further that upon approval by the OCD, the lists of LGUs shall
be endorsed to the DBM as the basis for the preparation of the
corresponding NCAs, SAROs, and related budget/release documents.

P 5.000 billion
RESOLVED FURTHER, that the P3.0 B of the CY 2001 LGSEF which is
to be allocated according to the modified codal formula shall be released
to the four levels of LGUs, i.e., provinces, cities, municipalities and
barangays, as follows:
LGUs

Percentage Amount

Provinces

25

P 0.750 billion

Cities

25

0.750

Municipalities 35

1.050

Barangays

0.450

15

100

P 3.000 billion

RESOLVED FURTHER, that the P1.9 B earmarked for priority projects

shall be distributed according to the following criteria:
1.0 For projects of the 4th, 5th and 6th class LGUs; or
2.0 Projects in consonance with the President's State of the Nation
Address (SONA)/summit commitments.
RESOLVED FURTHER, that the remaining P100 million LGSEF
capability building fund shall be distributed in accordance with the
recommendation of the Leagues of Provinces, Cities, Municipalities and
Barangays, and approved by the OCD.
Upon receipt of a copy of the above resolution, Gov. Mandanas wrote to
the individual members of the Oversight Committee seeking the
reconsideration of Resolution No. OCD-2002-001. He also wrote to Pres.
Macapagal-Arroyo urging her to disapprove said resolution as it violates
the Constitution and the Local Government Code of 1991.
On January 25, 2002, Pres. Macapagal-Arroyo approved Resolution No.
OCD-2002-001.
The Petitioner's Case
The petitioner now comes to this Court assailing as unconstitutional and
void the provisos in the GAAs of 1999, 2000 and 2001, relating to the
LGSEF. Similarly assailed are the Oversight Committee's Resolutions
Nos. OCD-99-003, OCD-99-005, OCD-99-006, OCD-2000-023, OCD2001-029 and OCD-2002-001 issued pursuant thereto. The petitioner
submits that the assailed provisos in the GAAs and the OCD resolutions,
insofar as they earmarked the amount of five billion pesos of the IRA of
the LGUs for 1999, 2000 and 2001 for the LGSEF and imposed
conditions for the release thereof, violate the Constitution and the Local
Government Code of 1991.
Section 6, Article X of the Constitution is invoked as it mandates that the
"just share" of the LGUs shall be automatically released to them. Sections
18 and 286 of the Local Government Code of 1991, which enjoin that the
"just share" of the LGUs shall be "automatically and directly" released to
them "without need of further action" are, likewise, cited.
The petitioner posits that to subject the distribution and release of the
five-billion-peso portion of the IRA, classified as the LGSEF, to
compliance by the LGUs with the implementing rules and regulations,
including the mechanisms and guidelines prescribed by the Oversight
Committee, contravenes the explicit directive of the Constitution that the
LGUs' share in the national taxes "shall be automatically released to
them." The petitioner maintains that the use of the word "shall" must be
given a compulsory meaning.
To further buttress this argument, the petitioner contends that to vest the
Oversight Committee with the authority to determine the distribution and
release of the LGSEF, which is a part of the IRA of the LGUs, is an
anathema to the principle of local autonomy as embodied in the
Constitution and the Local Government Code of 1991. The petitioner
cites as an example the experience in 2001 when the release of the
LGSEF was long delayed because the Oversight Committee was not able
to convene that year and no guidelines were issued therefor. Further, the
possible disapproval by the Oversight Committee of the project proposals
of the LGUs would result in the diminution of the latter's share in the IRA.
Another infringement alleged to be occasioned by the assailed OCD
resolutions is the improper amendment to Section 285 of the Local
Government Code of 1991 on the percentage sharing of the IRA among
the LGUs. Said provision allocates the IRA as follows: Provinces 23%;
Cities 23%; Municipalities 34%; and Barangays 20%.8 This formula

has been improperly amended or modified, with respect to the five-billionpeso portion of the IRA allotted for the LGSEF, by the assailed OCD
resolutions as they invariably provided for a different sharing scheme.
The modifications allegedly constitute an illegal amendment by the
executive branch of a substantive law. Moreover, the petitioner mentions
that in the Letter dated December 5, 2001 of respondent Executive
Secretary Romulo addressed to respondent Secretary Boncodin, the
former endorsed to the latter the release of funds to certain LGUs from
the LGSEF in accordance with the handwritten instructions of President
Arroyo. Thus, the LGUs are at a loss as to how a portion of the LGSEF is
actually allocated. Further, there are still portions of the LGSEF that, to
date, have not been received by the petitioner; hence, resulting in
damage and injury to the petitioner.
The petitioner prays that the Court declare as unconstitutional and void
the assailed provisos relating to the LGSEF in the GAAs of 1999, 2000
and 2001 and the assailed OCD resolutions (Resolutions Nos. OCD-99003, OCD-99-005, OCD-99-006, OCD-2000-023, OCD-2001-029 and
OCD-2002-001) issued by the Oversight Committee pursuant thereto.
The petitioner, likewise, prays that the Court direct the respondents to
rectify the unlawful and illegal distribution and releases of the LGSEF for
the aforementioned years and release the same in accordance with the
sharing formula under Section 285 of the Local Government Code of
1991. Finally, the petitioner urges the Court to declare that the entire IRA
should be released automatically without further action by the LGUs as
required by the Constitution and the Local Government Code of 1991.
The Respondents' Arguments
The respondents, through the Office of the Solicitor General, urge the
Court to dismiss the petition on procedural and substantive grounds. On
the latter, the respondents contend that the assailed provisos in the
GAAs of 1999, 2000 and 2001 and the assailed resolutions issued by the
Oversight Committee are not constitutionally infirm. The respondents
advance the view that Section 6, Article X of the Constitution does not
specify that the "just share" of the LGUs shall be determined solely by the
Local Government Code of 1991. Moreover, the phrase "as determined
by law" in the same constitutional provision means that there exists no
limitation on the power of Congress to determine what is the "just share"
of the LGUs in the national taxes. In other words, Congress is the arbiter
of what should be the "just share" of the LGUs in the national taxes.
The respondents further theorize that Section 285 of the Local
Government Code of 1991, which provides for the percentage sharing of
the IRA among the LGUs, was not intended to be a fixed determination of
their "just share" in the national taxes. Congress may enact other laws,
including appropriations laws such as the GAAs of 1999, 2000 and 2001,
providing for a different sharing formula. Section 285 of the Local
Government Code of 1991 was merely intended to be the "default share"
of the LGUs to do away with the need to determine annually by law their
"just share." However, the LGUs have no vested right in a permanent or
fixed percentage as Congress may increase or decrease the "just share"
of the LGUs in accordance with what it believes is appropriate for their
operation. There is nothing in the Constitution which prohibits Congress
from making such determination through the appropriations laws. If the
provisions of a particular statute, the GAA in this case, are within the
constitutional power of the legislature to enact, they should be sustained
whether the courts agree or not in the wisdom of their enactment.
On procedural grounds, the respondents urge the Court to dismiss the
petition outright as the same is defective. The petition allegedly raises
factual issues which should be properly threshed out in the lower courts,
not this Court, not being a trier of facts. Specifically, the petitioner's
allegation that there are portions of the LGSEF that it has not, to date,
received, thereby causing it (the petitioner) injury and damage, is subject
to proof and must be substantiated in the proper venue, i.e., the lower
courts.

Further, according to the respondents, the petition has already been

rendered moot and academic as it no longer presents a justiciable
controversy. The IRAs for the years 1999, 2000 and 2001, have already
been released and the government is now operating under the 2003
budget. In support of this, the respondents submitted certifications issued
by officers of the DBM attesting to the release of the allocation or shares
of the petitioner in the LGSEF for 1999, 2000 and 2001. There is,
therefore, nothing more to prohibit.
Finally, the petitioner allegedly has no legal standing to bring the suit
because it has not suffered any injury. In fact, the petitioner's "just share"
has even increased. Pursuant to Section 285 of the Local Government
Code of 1991, the share of the provinces is 23%. OCD Nos. 99-005, 99006 and 99-003 gave the provinces 40% of P2 billion of the LGSEF. OCD
Nos. 2000-023 and 2001-029 apportioned 26% of P3.5 billion to the
provinces. On the other hand, OCD No. 2001-001 allocated 25% of P3
billion to the provinces. Thus, the petitioner has not suffered any injury in
the implementation of the assailed provisos in the GAAs of 1999, 2000
and 2001 and the OCD resolutions.
The Ruling of the Court Procedural Issues
Before resolving the petition on its merits, the Court shall first rule on the
following procedural issues raised by the respondents: (1) whether the
petitioner has legal standing or locus standi to file the present suit; (2)
whether the petition involves factual questions that are properly
cognizable by the lower courts; and (3) whether the issue had been
rendered moot and academic.
The petitioner has locus standi to maintain the present suit
The gist of the question of standing is whether a party has "alleged such
a personal stake in the outcome of the controversy as to assure that
concrete adverseness which sharpens the presentation of issues upon
which the court so largely depends for illumination of difficult
constitutional questions."9 Accordingly, it has been held that the interest
of a party assailing the constitutionality of a statute must be direct and
personal. Such party must be able to show, not only that the law or any
government act is invalid, but also that he has sustained or is in imminent
danger of sustaining some direct injury as a result of its enforcement, and
not merely that he suffers thereby in some indefinite way. It must appear
that the person complaining has been or is about to be denied some right
or privilege to which he is lawfully entitled or that he is about to be
subjected to some burdens or penalties by reason of the statute or act
complained of.10
The Court holds that the petitioner possesses the requisite standing to
maintain the present suit. The petitioner, a local government unit, seeks
relief in order to protect or vindicate an interest of its own, and of the
other LGUs. This interest pertains to the LGUs' share in the national
taxes or the IRA. The petitioner's constitutional claim is, in substance,
that the assailed provisos in the GAAs of 1999, 2000 and 2001, and the
OCD resolutions contravene Section 6, Article X of the Constitution,
mandating the "automatic release" to the LGUs of their share in the
national taxes. Further, the injury that the petitioner claims to suffer is the
diminution of its share in the IRA, as provided under Section 285 of the
Local Government Code of 1991, occasioned by the implementation of
the assailed measures. These allegations are sufficient to grant the
petitioner standing to question the validity of the assailed provisos in the
GAAs of 1999, 2000 and 2001, and the OCD resolutions as the petitioner
clearly has "a plain, direct and adequate interest" in the manner and
distribution of the IRA among the LGUs.

undoubtedly a legal question. On the other hand, the following facts are
not disputed:
1. The earmarking of five billion pesos of the IRA for the LGSEF in the
assailed provisos in the GAAs of 1999, 2000 and re-enacted budget for
2001;
2. The promulgation of the assailed OCD resolutions providing for the
allocation schemes covering the said five billion pesos and the
implementing rules and regulations therefor; and
3. The release of the LGSEF to the LGUs only upon their compliance with
the implementing rules and regulations, including the guidelines and
mechanisms, prescribed by the Oversight Committee.
Considering that these facts, which are necessary to resolve the legal
question now before this Court, are no longer in issue, the same need not
be determined by a trial court.11 In any case, the rule on hierarchy of
courts will not prevent this Court from assuming jurisdiction over the
petition. The said rule may be relaxed when the redress desired cannot
be obtained in the appropriate courts or where exceptional and
compelling circumstances justify availment of a remedy within and calling
for the exercise of this Court's primary jurisdiction.12
The crucial legal issue submitted for resolution of this Court entails the
proper legal interpretation of constitutional and statutory provisions.
Moreover, the "transcendental importance" of the case, as it necessarily
involves the application of the constitutional principle on local autonomy,
cannot be gainsaid. The nature of the present controversy, therefore,
warrants the relaxation by this Court of procedural rules in order to
resolve the case forthwith.
The substantive issue needs to be resolved notwithstanding the
supervening events
Granting arguendo that, as contended by the respondents, the resolution
of the case had already been overtaken by supervening events as the
IRA, including the LGSEF, for 1999, 2000 and 2001, had already been
released and the government is now operating under a new
appropriations law, still, there is compelling reason for this Court to
resolve the substantive issue raised by the instant petition. Supervening
events, whether intended or accidental, cannot prevent the Court from
rendering a decision if there is a grave violation of the
Constitution.13Even in cases where supervening events had made the
cases moot, the Court did not hesitate to resolve the legal or
constitutional issues raised to formulate controlling principles to guide the
bench, bar and public.14
Another reason justifying the resolution by this Court of the substantive
issue now before it is the rule that courts will decide a question otherwise
moot and academic if it is "capable of repetition, yet evading
review."15 For the GAAs in the coming years may contain provisos
similar to those now being sought to be invalidated, and yet, the question
may not be decided before another GAA is enacted. It, thus, behooves
this Court to make a categorical ruling on the substantive issue now.
Substantive Issue
As earlier intimated, the resolution of the substantive legal issue in this
case calls for the application of a most important constitutional policy and
principle, that of local autonomy.16 In Article II of the Constitution, the
State has expressly adopted as a policy that:

The petition involves a significant legal issue

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

The crux of the instant controversy is whether the assailed provisos

contained in the GAAs of 1999, 2000 and 2001, and the OCD resolutions
infringe the Constitution and the Local Government Code of 1991. This is

An entire article (Article X) of the Constitution has been devoted to

guaranteeing and promoting the autonomy of LGUs. Section 2 thereof
reiterates the State policy in this wise:

Section 2. The territorial and political subdivisions shall enjoy local

autonomy.
Consistent with the principle of local autonomy, the Constitution confines
the President's power over the LGUs to one of general
supervision.17 This provision has been interpreted to exclude the power
of control. The distinction between the two powers was enunciated in
Drilon v. Lim:18
An officer in control lays down the rules in the doing of an act. If they are
not followed, he may, in his discretion, order the act undone or re-done
by his subordinate or he may even decide to do it himself. Supervision
does not cover such authority. The supervisor or superintendent merely
sees to it that the rules are followed, but he himself does not lay down
such rules, nor does he have the discretion to modify or replace them. If
the rules are not observed, he may order the work done or re-done but
only to conform to the prescribed rules. He may not prescribe his own
manner for doing the act. He has no judgment on this matter except to
see to it that the rules are followed.19
The Local Government Code of 199120 was enacted to flesh out the
mandate of the Constitution.21 The State policy on local autonomy is
amplified in Section 2 thereof:
Sec. 2. Declaration of Policy. (a) It is hereby declared the policy of the
State that the territorial and political subdivisions of the State shall enjoy
genuine and meaningful local autonomy to enable them to attain their
fullest development as self-reliant communities and make them more
effective partners in the attainment of national goals. Toward this end, the
State shall provide for a more responsive and accountable local
government structure instituted through a system of decentralization
whereby local government units shall be given more powers, authority,
responsibilities, and resources. The process of decentralization shall
proceed from the National Government to the local government units.
Guided by these precepts, the Court shall now determine whether the
assailed provisos in the GAAs of 1999, 2000 and 2001, earmarking for
each corresponding year the amount of five billion pesos of the IRA for
the LGSEF and the OCD resolutions promulgated pursuant thereto,
transgress the Constitution and the Local Government Code of 1991.
The assailed provisos in the GAAs of 1999, 2000 and 2001 and the OCD
resolutions violate the constitutional precept on local autonomy
Section 6, Article X of the Constitution reads:
Sec. 6. Local government units shall have a just share, as determined by
law, in the national taxes which shall be automatically released to them.
When parsed, it would be readily seen that this provision mandates that
(1) the LGUs shall have a "just share" in the national taxes; (2) the "just
share" shall be determined by law; and (3) the "just share" shall be
automatically released to the LGUs.
The Local Government Code of 1991, among its salient provisions,
underscores the automatic release of the LGUs' "just share" in this wise:
Sec. 18. Power to Generate and Apply Resources. Local government
units shall have the power and authority to establish an organization that
shall be responsible for the efficient and effective implementation of their
development plans, program objectives and priorities; to create their own
sources of revenue and to levy taxes, fees, and charges which shall
accrue exclusively for their use and disposition and which shall be
retained by them;to have a just share in national taxes which shall be
automatically and directly released to them without need of further action;

Sec. 286. Automatic Release of Shares. (a) The share of each local
government unit shall be released, without need of any further action,
directly to the provincial, city, municipal or barangay treasurer, as the
case may be, on a quarterly basis within five (5) days after the end of
each quarter, and which shall not be subject to any lien or holdback that
may be imposed by the national government for whatever purpose.
(b) Nothing in this Chapter shall be understood to diminish the share of
local government units under existing laws.
Webster's Third New International Dictionary defines "automatic" as
"involuntary either wholly or to a major extent so that any activity of the
will is largely negligible; of a reflex nature; without volition; mechanical;
like or suggestive of an automaton." Further, the word "automatically" is
defined as "in an automatic manner: without thought or conscious
intention." Being "automatic," thus, connotes something mechanical,
spontaneous and perfunctory. As such, the LGUs are not required to
perform any act to receive the "just share" accruing to them from the
national coffers. As emphasized by the Local Government Code of 1991,
the "just share" of the LGUs shall be released to them "without need of
further action." Construing Section 286 of the LGC, we held in Pimentel,
Jr. v. Aguirre,22 viz:
Section 4 of AO 372 cannot, however, be upheld. A basic feature of local
fiscal autonomy is the automatic release of the shares of LGUs in the
National internal revenue. This is mandated by no less than the
Constitution. The Local Government Code specifies further that the
release shall be made directly to the LGU concerned within five (5) days
after every quarter of the year and "shall not be subject to any lien or
holdback that may be imposed by the national government for whatever
purpose." As a rule, the term "SHALL" is a word of command that must
be given a compulsory meaning. The provision is, therefore,
IMPERATIVE.
Section 4 of AO 372, however, orders the withholding, effective January
1, 1998, of 10 percent of the LGUs' IRA "pending the assessment and
evaluation by the Development Budget Coordinating Committee of the
emerging fiscal situation" in the country. Such withholding clearly
contravenes the Constitution and the law. Although temporary, it is
equivalent to a holdback, which means "something held back or withheld,
often temporarily." Hence, the "temporary" nature of the retention by the
national government does not matter. Any retention is prohibited.
In sum, while Section 1 of AO 372 may be upheld as an advisory effected
in times of national crisis, Section 4 thereof has no color of validity at all.
The latter provision effectively encroaches on the fiscal autonomy of local
governments. Concededly, the President was well-intentioned in issuing
his Order to withhold the LGUs' IRA, but the rule of law requires that even
the best intentions must be carried out within the parameters of the
Constitution and the law. Verily, laudable purposes must be carried out
by legal methods.23
The "just share" of the LGUs is incorporated as the IRA in the
appropriations law or GAA enacted by Congress annually. Under the
assailed provisos in the GAAs of 1999, 2000 and 2001, a portion of the
IRA in the amount of five billion pesos was earmarked for the LGSEF,
and these provisos imposed the condition that "such amount shall be
released to the local government units subject to the implementing rules
and regulations, including such mechanisms and guidelines for the
equitable allocations and distribution of said fund among local
government units subject to the guidelines that may be prescribed by the
Oversight Committee on Devolution." Pursuant thereto, the Oversight
Committee, through the assailed OCD resolutions, apportioned the five
billion pesos LGSEF such that:
For 1999

...
P2 billion - allocated according to Sec. 285 LGC

P2 billion - Modified Sharing Formula (Provinces 40%;

Cities 20%; Municipalities 40%)
P1 billion projects (LAAP) approved by OCD.24

Committee's work was supposed to be done a year from the approval of

the Code, or on October 10, 1992.30 The Oversight Committee's
authority is undoubtedly limited to the implementation of the Local
Government Code of 1991, not to supplant or subvert the same. Neither
can it exercise control over the IRA, or even a portion thereof, of the
LGUs.

For 2000
P3.5 billion Modified Sharing Formula (Provinces 26%;
Cities 23%; Municipalities 35%; Barangays 16%);
P1.5 billion projects (LAAP) approved by the OCD.25
For 2001
P3 billion Modified Sharing Formula (Provinces 25%;
Cities 25%; Municipalities 35%; Barangays 15%)
P1.9 billion priority projects
P100 million capability building fund.26
Significantly, the LGSEF could not be released to the LGUs without the
Oversight Committee's prior approval. Further, with respect to the portion
of the LGSEF allocated for various projects of the LGUs (P1 billion for
1999;P1.5 billion for 2000 and P2 billion for 2001), the Oversight
Committee, through the assailed OCD resolutions, laid down guidelines
and mechanisms that the LGUs had to comply with before they could
avail of funds from this portion of the LGSEF. The guidelines required (a)
the LGUs to identify the projects eligible for funding based on the criteria
laid down by the Oversight Committee; (b) the LGUs to submit their
project proposals to the DILG for appraisal; (c) the project proposals that
passed the appraisal of the DILG to be submitted to the Oversight
Committee for review, evaluation and approval. It was only upon approval
thereof that the Oversight Committee would direct the DBM to release the
funds for the projects.
To the Court's mind, the entire process involving the distribution and
release of the LGSEF is constitutionally impermissible. The LGSEF is
part of the IRA or "just share" of the LGUs in the national taxes. To
subject its distribution and release to the vagaries of the implementing
rules and regulations, including the guidelines and mechanisms
unilaterally prescribed by the Oversight Committee from time to time, as
sanctioned by the assailed provisos in the GAAs of 1999, 2000 and 2001
and the OCD resolutions, makes the release not automatic, a flagrant
violation of the constitutional and statutory mandate that the "just share"
of the LGUs "shall be automatically released to them." The LGUs are,
thus, placed at the mercy of the Oversight Committee.
Where the law, the Constitution in this case, is clear and unambiguous, it
must be taken to mean exactly what it says, and courts have no choice
but to see to it that the mandate is obeyed.27 Moreover, as correctly
posited by the petitioner, the use of the word "shall" connotes a
mandatory order. Its use in a statute denotes an imperative obligation
and is inconsistent with the idea of discretion.28
Indeed, the Oversight Committee exercising discretion, even control, over
the distribution and release of a portion of the IRA, the LGSEF, is an
anathema to and subversive of the principle of local autonomy as
embodied in the Constitution. Moreover, it finds no statutory basis at all
as the Oversight Committee was created merely to formulate the rules
and regulations for the efficient and effective implementation of the Local
Government Code of 1991 to ensure "compliance with the principles of
local autonomy as defined under the Constitution."29 In fact, its creation
was placed under the title of "Transitory Provisions," signifying its ad hoc
character. According to Senator Aquilino Q. Pimentel, the principal author
and sponsor of the bill that eventually became Rep. Act No. 7160, the

That the automatic release of the IRA was precisely intended to

guarantee and promote local autonomy can be gleaned from the
discussion below between Messrs. Jose N. Nolledo and Regalado M.
Maambong, then members of the 1986 Constitutional Commission, to wit:
MR. MAAMBONG. Unfortunately, under Section 198 of the Local
Government Code, the existence of subprovinces is still acknowledged
by the law, but the statement of the Gentleman on this point will have to
be taken up probably by the Committee on Legislation. A second point,
Mr. Presiding Officer, is that under Article 2, Section 10 of the 1973
Constitution, we have a provision which states:
The State shall guarantee and promote the autonomy of local
government units, especially the barrio, to insure their fullest
development as self-reliant communities.
This provision no longer appears in the present configuration; does this
mean that the concept of giving local autonomy to local governments is
no longer adopted as far as this Article is concerned?
MR. NOLLEDO. No. In the report of the Committee on Preamble,
National Territory, and Declaration of Principles, that concept is included
and widened upon the initiative of Commissioner Bennagen.
MR. MAAMBONG. Thank you for that.
With regard to Section 6, sources of revenue, the creation of sources as
provided by previous law was "subject to limitations as may be provided
by law," but now, we are using the term "subject to such guidelines as
may be fixed by law." In Section 7, mention is made about the "unique,
distinct and exclusive charges and contributions," and in Section 8, we
talk about "exclusivity of local taxes and the share in the national wealth."
Incidentally, I was one of the authors of this provision, and I am very
thankful. Does this indicate local autonomy, or was the wording of the law
changed to give more autonomy to the local government units?31
MR. NOLLEDO. Yes. In effect, those words indicate also
"decentralization" because local political units can collect taxes, fees and
charges subject merely to guidelines, as recommended by the league of
governors and city mayors, with whom I had a dialogue for almost two
hours. They told me that limitations may be questionable in the sense
that Congress may limit and in effect deny the right later on.
MR. MAAMBONG. Also, this provision on "automatic release of national
tax share" points to more local autonomy. Is this the intention?
MR. NOLLEDO. Yes, the Commissioner is perfectly right.32
The concept of local autonomy was explained in Ganzon v. Court of
Appeals33 in this wise:
As the Constitution itself declares, local autonomy 'means a more
responsive and accountable local government structure instituted through
a system of decentralization.' The Constitution, as we observed, does
nothing more than to break up the monopoly of the national government
over the affairs of local governments and as put by political adherents, to
"liberate the local governments from the imperialism of Manila."
Autonomy, however, is not meant to end the relation of partnership and
interdependence between the central administration and local
government units, or otherwise, to usher in a regime of federalism. The
Charter has not taken such a radical step. Local governments, under the

Constitution, are subject to regulation, however limited, and for no other

purpose than precisely, albeit paradoxically, to enhance self-government.

and 2001 and the OCD resolutions cannot amend

Section 285 of the Local Government Code of 1991

As we observed in one case, decentralization means devolution of

national administration but not power to the local levels. Thus:
Now, autonomy is either decentralization of administration or
decentralization of power. There is decentralization of administration
when the central government delegates administrative powers to political
subdivisions in order to broaden the base of government power and in
the process to make local governments 'more responsive and
accountable' and 'ensure their fullest development as self-reliant
communities and make them more effective partners in the pursuit of
national development and social progress.' At the same time, it relieves
the central government of the burden of managing local affairs and
enables it to concentrate on national concerns. The President exercises
'general supervision' over them, but only to 'ensure that local affairs are
administered according to law.' He has no control over their acts in the
sense that he can substitute their judgments with his own.
Decentralization of power, on the other hand, involves an abdication of
political power in the [sic] favor of local governments [sic] units declared
to be autonomous. In that case, the autonomous government is free to
chart its own destiny and shape its future with minimum intervention from
central authorities. According to a constitutional author, decentralization
of power amounts to 'self-immolation,' since in that event, the
autonomous government becomes accountable not to the central
authorities but to its constituency.34
Local autonomy includes both administrative and fiscal autonomy. The
fairly recent case of Pimentel v. Aguirre35is particularly instructive. The
Court declared therein that local fiscal autonomy includes the power of
the LGUs to, inter alia, allocate their resources in accordance with their
own priorities:
Under existing law, local government units, in addition to having
administrative autonomy in the exercise of their functions, enjoy fiscal
autonomy as well. Fiscal autonomy means that local governments have
the power to create their own sources of revenue in addition to their
equitable share in the national taxes released by the national
government, as well as the power to allocate their resources in
accordance with their own priorities. It extends to the preparation of their
budgets, and local officials in turn have to work within the constraints
thereof. They are not formulated at the national level and imposed on
local governments, whether they are relevant to local needs and
resources or not ...36
Further, a basic feature of local fiscal autonomy is the constitutionally
mandated automatic release of the shares of LGUs in the national
internal revenue.37
Following this ratiocination, the Court in Pimentel struck down as
unconstitutional Section 4 of Administrative Order (A.O.) No. 372 which
ordered the withholding, effective January 1, 1998, of ten percent of the
LGUs' IRA "pending the assessment and evaluation by the Development
Budget Coordinating Committee of the emerging fiscal situation."
In like manner, the assailed provisos in the GAAs of 1999, 2000 and
2001, and the OCD resolutions constitute a "withholding" of a portion of
the IRA. They put on hold the distribution and release of the five billion
pesos LGSEF and subject the same to the implementing rules and
regulations, including the guidelines and mechanisms prescribed by the
Oversight Committee from time to time. Like Section 4 of A.O. 372, the
assailed provisos in the GAAs of 1999, 2000 and 2001 and the OCD
resolutions effectively encroach on the fiscal autonomy enjoyed by the
LGUs and must be struck down. They cannot, therefore, be upheld.
The assailed provisos in the GAAs of 1999, 2000

Section 28438 of the Local Government Code provides that, beginning

the third year of its effectivity, the LGUs' share in the national internal
revenue taxes shall be 40%. This percentage is fixed and may not be
reduced except "in the event the national government incurs an
unmanageable public sector deficit" and only upon compliance with
stringent requirements set forth in the same section:
Sec. 284. ...
Provided, That in the event that the national government incurs an
unmanageable public sector deficit, the President of the Philippines is
hereby authorized, upon recommendation of Secretary of Finance,
Secretary of Interior and Local Government and Secretary of Budget and
Management, and subject to consultation with the presiding officers of
both Houses of Congress and the presidents of the liga, to make the
necessary adjustments in the internal revenue allotment of local
government units but in no case shall the allotment be less than thirty
percent (30%) of the collection of the national internal revenue taxes of
the third fiscal year preceding the current fiscal year; Provided, further
That in the first year of the effectivity of this Code, the local government
units shall, in addition to the thirty percent (30%) internal revenue
allotment which shall include the cost of devolved functions for essential
public services, be entitled to receive the amount equivalent to the cost of
devolved personnel services.
Thus, from the above provision, the only possible exception to the
mandatory automatic release of the LGUs' IRA is if the national internal
revenue collections for the current fiscal year is less than 40 percent of
the collections of the preceding third fiscal year, in which case what
should be automatically released shall be a proportionate amount of the
collections for the current fiscal year. The adjustment may even be made
on a quarterly basis depending on the actual collections of national
internal revenue taxes for the quarter of the current fiscal year. In the
instant case, however, there is no allegation that the national internal
revenue tax collections for the fiscal years 1999, 2000 and 2001 have
fallen compared to the preceding three fiscal years.
Section 285 then specifies how the IRA shall be allocated among the
LGUs:
Sec. 285. Allocation to Local Government Units. The share of local
government units in the internal revenue allotment shall be allocated in
the following manner:
(a) Provinces Twenty-three (23%)
(b) Cities Twenty-three percent (23%);
(c) Municipalities Thirty-four (34%); and
(d) Barangays Twenty percent (20%).
However, this percentage sharing is not followed with respect to the five
billion pesos LGSEF as the assailed OCD resolutions, implementing the
assailed provisos in the GAAs of 1999, 2000 and 2001, provided for a
different sharing scheme. For example, for 1999, P2 billion of the LGSEF
was allocated as follows: Provinces 40%; Cities 20%; Municipalities
40%.39 For 2000, P3.5 billion of the LGSEF was allocated in this
manner: Provinces 26%; Cities 23%; Municipalities 35%;
Barangays 26%.40 For 2001, P3 billion of the LGSEF was allocated,
thus: Provinces 25%; Cities 25%; Municipalities 35%; Barangays
15%.41

The respondents argue that this modification is allowed since the

Constitution does not specify that the "just share" of the LGUs shall only
be determined by the Local Government Code of 1991. That it is within
the power of Congress to enact other laws, including the GAAs, to
increase or decrease the "just share" of the LGUs. This contention is
untenable. The Local Government Code of 1991 is a substantive law.
And while it is conceded that Congress may amend any of the provisions
therein, it may not do so through appropriations laws or GAAs. Any
amendment to the Local Government Code of 1991 should be done in a
separate law, not in the appropriations law, because Congress cannot
include in a general appropriation bill matters that should be more
properly enacted in a separate legislation.42
A general appropriations bill is a special type of legislation, whose
content is limited to specified sums of money dedicated to a specific
purpose or a separate fiscal unit.43 Any provision therein which is
intended to amend another law is considered an "inappropriate
provision." The category of "inappropriate provisions" includes
unconstitutional provisions and provisions which are intended to amend
other laws, because clearly these kinds of laws have no place in an
appropriations bill.44
Increasing or decreasing the IRA of the LGUs or modifying their
percentage sharing therein, which are fixed in the Local Government
Code of 1991, are matters of general and substantive law. To permit
Congress to undertake these amendments through the GAAs, as the
respondents contend, would be to give Congress the unbridled authority
to unduly infringe the fiscal autonomy of the LGUs, and thus put the same
in jeopardy every year. This, the Court cannot sanction.
It is relevant to point out at this juncture that, unlike those of 1999, 2000
and 2001, the GAAs of 2002 and 2003 do not contain provisos similar to
the herein assailed provisos. In other words, the GAAs of 2002 and 2003
have not earmarked any amount of the IRA for the LGSEF. Congress had
perhaps seen fit to discontinue the practice as it recognizes its infirmity.
Nonetheless, as earlier mentioned, this Court has deemed it necessary to
make a definitive ruling on the matter in order to prevent its recurrence in
future appropriations laws and that the principles enunciated herein
would serve to guide the bench, bar and public.
Conclusion
In closing, it is well to note that the principle of local autonomy, while
concededly expounded in greater detail in the present Constitution, dates
back to the turn of the century when President William McKinley, in his
Instructions to the Second Philippine Commission dated April 7, 1900,
ordered the new Government "to devote their attention in the first
instance to the establishment of municipal governments in which the
natives of the Islands, both in the cities and in the rural communities,
shall be afforded the opportunity to manage their own affairs to the fullest
extent of which they are capable, and subject to the least degree of
supervision and control in which a careful study of their capacities and
observation of the workings of native control show to be consistent with
the maintenance of law, order and loyalty."45 While the 1935 Constitution
had no specific article on local autonomy, nonetheless, it limited the
executive power over local governments to "general supervision ... as
may be provided by law."46 Subsequently, the 1973 Constitution
explicitly stated that "[t]he State shall guarantee and promote the
autonomy of local government units, especially the barangay to ensure
their fullest development as self-reliant communities."47 An entire article
on Local Government was incorporated therein. The present Constitution,
as earlier opined, has broadened the principle of local autonomy. The 14
sections in Article X thereof markedly increased the powers of the local
governments in order to accomplish the goal of a more meaningful local
autonomy.

Indeed, the value of local governments as institutions of democracy is

measured by the degree of autonomy that they enjoy.48 As eloquently
put by
M. De Tocqueville, a distinguished French political writer, "[l]ocal
assemblies of citizens constitute the strength of free nations. Township
meetings are to liberty what primary schools are to science; they bring it
within the people's reach; they teach men how to use and enjoy it. A
nation may establish a system of free governments but without the spirit
of municipal institutions, it cannot have the spirit of liberty."49
Our national officials should not only comply with the constitutional
provisions on local autonomy but should also appreciate the spirit and
liberty upon which these provisions are based.50
WHEREFORE, the petition is GRANTED. The assailed provisos in the
General Appropriations Acts of 1999, 2000 and 2001, and the assailed
OCD Resolutions, are declared UNCONSTITUTIONAL.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 144256

June 8, 2005

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DEVELOPMENT NETWORK, INC. (CADENET); CENTER FOR
PARTICIPATORY GOVERNANCE (CPAG); ENVIRONMENTAL LEGAL
ASSISTANCE CENTER, INC. (ELAC); FELLOWSHIP FOR
ORGANIZING ENDEAVORS (FORGE); FOUNDATION FOR LOCAL
AUTONOMY AND GOOD GOVERNNANCE, INC. (FLAGG); INSTITUTE
OF POLITICS AND GOVERNANCE (IPG); KAISAHAN PARA SA
KAUNLARAN NG KANAYUNAN AT REPORMANG PANSAKAHAN
(KAISAHAN); MANGGAGAGAWANG KABABAIHANG MITHI AY
PAGLAYA (MAKALAYA); NAGA CITY PEOPLE'S COUNCIL (NCPC);
NGO-PO COUNCIL OF CAMARINES SUR FOR COMMUNITY
PARTICIPATION AND EMPOWERMENT, INC. (NPCCS); PAILIG
DEVELOPMENT FOUNDATION INC. (PDFI); PHILIPPINE
ECUMENICAL ACTION FOR COMMUNITY EMPOWERMENT
FOUNDATION, INC. (PEACE FOUNDATION, INC.); PHILIPPINE
PARTNERSHIP FOR THE DEVELOPMENT OF HUMAN RESOURCES
IN RURAL AREAS (PHILDHRRA); PILIPINA, INC. (ANG KILUSAN NG
KABABAIHANG PILIPINO); SENTRO NG ALTERNATIBONG LINGAP
PANLIGAL (SALIGAN); URBAN LAND REFORM TASK FORCE (ULRTF); ADELINO C. LAVADOR; PUNONG BARANGAY ISABEL
MENDEZ; PUNONG BARANGAY CAROLINA ROMANOS,petitioners,
vs.
HON. RONALDO ZAMORA, in his capacity as Executive Secretary,
HON. BENJAMIN DIOKNO, in his capacity as Secretary, Department
of Budget and Management, HON. LEONOR MAGTOLIS-BRIONES, in
her capacity as National Treasurer, and the COMMISSION ON
AUDIT, respondents.
DECISION
CARPIO MORALES, J.:
Pursuant to Section 22, Article VII of the Constitution1 mandating the
President to submit to Congress a budget of expenditures within thirty
days before the opening of every regular session, then President Joseph
Ejercito Estrada submitted the National Expenditures Program for Fiscal
Year 2000. In the said Program, the President proposed an Internal

Revenue Allotment (IRA) in the amount of P121,778,000,000 following

the formula provided for in Section 284 of the Local Government Code of
1992, viz:
SECTION 284. Allotment of Internal Revenue Taxes. - Local government
units shall have a share in the national internal revenue taxes based on
the collection of the third fiscal year preceding the current fiscal year as
follows:
(a) On the first year of the effectivity of this Code, thirty percent (30%);
(b) On the second year, thirty-five percent (35%); and

APPROPRI
ATIONS

P111,778,0
00,000

In another part of the GAA, under the heading "UNPROGRAMMED

FUND," it is provided that an amount ofP10,000,000,000 (P10 Billion),
apart from the P111,778,000,000 mentioned above, shall be used to fund
the IRA, which amount shall be released only when the original revenue
targets submitted by the President to Congress can be realized based on
a quarterly assessment to be conducted by certain committees which the
GAA specifies, namely, the Development Budget Coordinating
Committee, the Committee on Finance of the Senate, and the Committee
on Appropriations of the House of Representatives.

(c) On the third year and thereafter, forty percent (40%).

LIV. UNPROGRAMMED FUND
x x x (Emphasis supplied)
On February 16, 2000, the President approved House Bill No. 8374 - a
bill sponsored in the Senate by then Senator John H. Osmea who was
the Chairman of the Committee on Finance. This bill became Republic
Act No. 8760, "AN ACT APPROPRIATING FUNDS FOR THE
OPERATION OF THE GOVERNMENT OF THE REPUBLIC OF THE
PHILIPPINES FROM JANUARY ONE TO DECEMBER THIRTY-ONE,
TWO THOUSAND, AND FOR OTHER PURPOSES".

For fund requirements in accordance with the purposes indicated

hereunder P48,681,831,000
A. PURPOSE(S)
xxxx
6. Additional
Operational
Requirements
and Projects of
Agencies

The act, otherwise known as the General Appropriations Act (GAA) for
the Year 2000, provides under the heading "ALLOCATIONS TO LOCAL
GOVERNMENT UNITS" that the IRA for local government units shall
amount toP111,778,000,000:1avvphi1.zw+
XXXVII. ALLOCATIONS TO LOCAL

xxxx

GOVERNMENT UNITS
A. INTERNAL REVENUE ALLOTMENT

Special Provisions

For apportionment of the shares of local government units in the internal

revenue taxes in accordance with the purpose indicated hereunder
... P111,778,000,
000
New Appropriations, by Purpose
Current Operating Expenditures

Maintenanc
e
and Other

Personal
Services

A.
PURPOSE
(S)

a. Internal
Revenue
Allotment

P111,778,0
00,000

P111,778,0
00,000

Opera
ting
Expen
ses

Capi
tal
Outl
ays

To
tal

P14,788,764,000

1. Release of the Fund. The amounts herein appropriated shall be

released only when the revenue collections exceed the original revenue
targets submitted by the President of the Philippines to Congress
pursuant to Section 22, Article VII of the Constitution or when the
corresponding funding or receipts for the purpose have been realized
except in the special cases covered by specific procedures in Special
Provision Nos. 2, 3, 4, 5, 7, 8, 9, 13 and 14 herein: PROVIDED, That in
cases of foreign-assisted projects, the existence of a perfected loan
agreement shall be sufficient compliance for the issuance of a Special
Allotment Release Order covering the loan proceeds: PROVIDED,
FURTHER, That no amount of the Unprogrammed Fund shall be funded
out of the savings generated from programmed items in this Act.
xxxx
4. Additional Operational Requirements and Projects of Agencies. The
appropriations for Purpose 6 - Additional Operational Requirements and
Projects of Agencies herein indicated shall be released only when the
original revenue targets submitted by the President of the Philippines to
Congress pursuant to Section 22, Article VII of the Constitution can be
realized based on a quarterly assessment of the Development Budget
Coordinating Committee, the Committee on Finance of the Senate and
the Committee on Appropriations of the House of Representatives and
shall be used to fund the following:
xxxx

xxx
Internal Revenue Allotments
TOTAL
NEW

Maintenance and
Other Operating
Expenses

P10,000,000,000

total IRA

-------------------P10,000,000,000

5. THE YEAR 2000 GAA'S REDUCTION OF THE IRA UNDERMINES

THE FOUNDATION OF OUR LOCAL GOVERNANCE SYSTEM WHICH
IS ESSENTIAL TO THE EFFICIENT OPERATION OF THE
GOVERNMENT AND THE DEVELOPMENT OF THE NATION.

xxxx
Total P14,788,764,000
x x x x (Emphasis supplied)
Thus, while the GAA appropriates P111,778,000,000 of IRA
as Programmed Fund, it appropriates a separate amount of P10 Billion of
IRA under the classification of Unprogrammed Fund, the latter amount to
be released only upon the occurrence of the condition stated in the GAA.
On August 22, 2000, a number of non-governmental organizations
(NGOs) and people's organizations, along with three barangay officials
filed with this Court the petition at bar, for Certiorari, Prohibition and
Mandamus With Application for Temporary Restraining Order, against
respondents then Executive Secretary Ronaldo Zamora, then Secretary
of the Department of Budget and Management Benjamin Diokno, then
National Treasurer Leonor Magtolis-Briones, and the Commission on
Audit, challenging the constitutionality of above-quoted provision of
XXXVII (ALLOCATIONS TO LOCAL GOVERNMENT UNITS) referred to
by petitioners as Section 1, XXXVII (A), and LIV (UNPROGRAMMED
FUND) Special Provisions 1 and 4 of the GAA (the GAA provisions).

6. THE CONGRESS AND THE EXECUTIVE, IN PASSING AND

APPROVING, RESPECTIVELY, THE YEAR 2000 GAA, AND THE
RESPONDENTS, IN IMPLEMENTING THE SAID YEAR 2000 GAA,
INSOFAR AS SECTION 1, XXXVII (A) AND LIV, SPECIAL PROVISIONS
1 AND 4, ARE CONCERNED, ACTED WITH GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION
AS THEY TRANSGRESSED THE CONSTITUTION AND THE LOCAL
GOVERNMENT CODE'S PROHIBITION ON ANY INVALID REDUCTION
AND WITHHOLDING OF THE LOCAL GOVERNMENTS' IRA.
(Underscoring supplied)
After the parties had filed their respective memoranda, a "MOTION FOR
INTERVENTION/MOTION TO ADMIT ATTACHED PETITION FOR
INTERVENTION" was filed on October 22, 2001 by the Province of
Batangas, represented by then Governor Hermilando I. Mandanas.
On November 6, 2001, the Province of Nueva Ecija, represented by
Governor Tomas N. Joson III, likewise filed a "MOTION FOR LEAVE OF
COURT TO INTERVENE AND FILE PETITION-IN-INTERVENTION".
The motions for intervention, both of which adopted the arguments of the
main petition,2 were granted by this Court.3

Petitioners contend that:

1. SECTION 1, XXXVII (A) AND LIV, SPECIAL PROVISIONS 1 AND 4,
OF THE YEAR 2000 GAA ARE NULL AND VOID FOR BEING
UNCONSTITUTIONAL AS THEY VIOLATE THE AUTONOMY OF
LOCAL GOVERNMENTS BY UNLAWFULLY REDUCING BY TEN
BILLION PESOS (P10 BILLION) THE INTERNAL REVENUE
ALLOTMENTS DUE TO THE LOCAL GOVERNMENTS AND
WITHHOLDING THE RELEASE OF SUCH AMOUNT BY PLACING THE
SAME UNDER "UNPROGRAMMED FUNDS." THIS VIOLATES THE
CONSTITUTIONAL MANDATE IN ART. X, SEC. 6, THAT THE LOCAL
GOVERNMENT UNITS' JUST SHARE IN THE NATIONAL TAXES
SHALL BE AUTOMATICALLY RELEASED TO THEM. IT ALSO
VIOLATES THE LOCAL GOVERNMENT CODE, SPECIFICALLY, SECS.
18, 284, AND 286.
2. SECTION 1, XXXVII (A) AND LIV, SPECIAL PROVISIONS 1 AND 4,
OF THE YEAR 2000 GAA ARE NULL AND VOID FOR BEING
UNCONSTITUTIONAL AS THEY VIOLATE THE AUTONOMY OF
LOCAL GOVERNMENTS BY PLACING TEN BILLION PESOS (P10
BILLION) OF THE INTERNAL REVENUE ALLOTMENTS DUE TO THE
LOCAL GOVERNMENTS, EFFECTIVELY AND PRACTICALLY, WITHIN
THE CONTROL OF THE CENTRAL AUTHORITIES.
3. SECTION 1, XXXVII (A) AND LIV, SPECIAL PROVISIONS 1 AND 4,
OF THE YEAR 2000 GAA ARE NULL AND VOID FOR BEING
UNCONSTITUTIONAL AS THE PLACING OF P10 BILLION PESOS OF
THE IRA UNDER "UNPROGRAMMED FUNDS" CONSTITUTES AN
UNDUE DELEGATION OF LEGISLATIVE POWER TO THE
RESPONDENTS.
4. SECTION 1, XXXVII (A) AND LIV, SPECIAL PROVISIONS 1 AND 4,
OF THE YEAR 2000 GAA ARE NULL AND VOID FOR BEING
UNCONSTITUTIONAL AS THE PLACING OF P10 BILLION PESOS OF
THE IRA UNDER "UNPROGRAMMED FUNDS" CONSTITUTES AN
AMENDMENT OF THE LOCAL GOVERNMENT CODE OF 1991,
WHICH CANNOT BE DONE IN A GENERAL APPROPRIATIONS ACT
AND WHICH PURPOSE WAS NOT REFLECTED IN THE TITLE OF THE
YEAR 2000 GAA.

Although the effectivity of the Year 2000 GAA has ceased, this Court
shall nonetheless proceed to resolve the issues raised in the present
case, it being impressed with public interest. The ruling of this Court in
the case ofThe Province of Batangas v. Romulo,4 wherein GAA
provisions relating to the IRA were likewise challenged, is in point, to wit:
Granting arguendo that, as contended by the respondents, the resolution
of the case had already been overtaken by supervening events as the
IRA, including the LGSEF, for 1999, 2000 and 2001, had already been
released and the government is now operating under a new
appropriations law, still, there is compelling reason for this Court to
resolve the substantive issue raised by the instant petition. Supervening
events, whether intended or accidental, cannot prevent the Court from
rendering a decision if there is a grave violation of the Constitution. Even
in cases where supervening events had made the cases moot, the Court
did not hesitate to resolve the legal or constitutional issues raised to
formulate controlling principles to guide the bench, bar and public.
Another reason justifying the resolution by this Court of the substantive
issue now before it is the rule that courts will decide a question otherwise
moot and academic if it is "capable of repetition, yet evading review." For
the GAAs in the coming years may contain provisos similar to those now
being sought to be invalidated, and yet, the question may not be decided
before another GAA is enacted. It, thus, behooves this Court to make a
categorical ruling on the substantive issue now.5
Passing on the arguments of all parties, bearing in mind the dictum that
"the court should not form a rule of constitutional law broader than is
required by the precise facts to which it is applied,"6 this Court finds that
only the following issues need to be resolved in the present petition: (1)
whether the petition contains proper verifications and certifications
against forum-shopping, (2) whether petitioners have the requisite
standing to file this suit, and (3) whether the questioned provisions violate
the constitutional injunction that the just share of local governments in the
national taxes or the IRA shall be automatically released.
Sufficiency of Verification and Certification Against Forum-Shopping
Respondents assail as improperly executed petitioners' verifications and
certifications against forum-shopping as they merely state that the

allegations of the Petition are "true of our knowledge and belief" instead
of "true and correct of our personal knowledge or based on authentic
records" as required under Rule 7, Section 4 of the Rules of Court.7
Jurisprudence is on petitioners' side. In Decano v. Edu,8 this Court held:
Respondents finally raise a technical point referring to the allegedly
defective verification of the petition filed in the trial court, contending that
the clause in the verification statement "that I have read the contents of
the said petition; and that [to] the best of my knowledge are true and
correct" is insufficient since under section 6 of Rule 7, it is required that
the person verifying must have read the pleading and that the allegations
thereof are true of his own knowledge. We do not see any reason for
rendering the said verification void. The statement "to the best of my
knowledge are true and correct" referring to the allegations in the petition
does not mean mere "knowledge, information and belief." It
constitutes substantial compliance with the requirement of section 6 of
Rule 7, as held in Madrigal vs. Rodas (80 Phil. 252.). At any rate, this
petty technicality deserves scant consideration where the question at
issue is one purely of law and there is no need of delving into the veracity
of the allegations in the petition, which are not disputed at all by
respondents. As we have held time and again, imperfections of form and
technicalities of procedure are to be disregarded except where
substantial rights would otherwise be prejudiced. (Emphasis and
underscoring supplied)
Respondents go on to claim that the same verifications were signed by
persons who were not authorized by the incorporated cause-oriented
groups which they claim to represent, hence, the Petition should be
treated as an unsigned pleading.
Indeed, only duly authorized natural persons may execute verifications in
behalf of juridical entities such as petitioners NGOs and people's
organizations. As this Court held in Santos v. CA, "In fact, physical
actions, e.g., signing and delivery of documents, may be performed on
behalf of the corporate entity only by specifically authorized individuals."9

Standing
Respondents assail petitioners' standing in this controversy, proffering
that it is the local government units - each having a separate juridical
entity - which stand to be injured.
The subsequent intervention of the provinces of Batangas and Nueva
Ecija which have adopted the arguments of petitioners has, however,
made the question of standing academic.11
Respondents, contending that petitioners have no cause of action against
them as they claim to have no responsibility with respect to the mandate
of the GAA provisions, proffer that the committees mentioned in the GAA
provisions, namely, the Development Budget Coordinating Committee,
Committee on Finance of the Senate, and Committee on Appropriations
of the House of Representatives, should instead have been impleaded.
Respondents' position does not lie.
The GAA provisions being challenged were not to be implemented solely
by the committees specifically mentioned therein, for they being in the
nature of appropriations provisions, they were also to be implemented by
the executive branch, particularly the Department of Budget and
Management (DBM) and the National Treasurer. The task of the
committees related merely to the conduct of the quarterly assessment
required in the provisions, and not in the actual release of the IRA which
is the duty of the executive. Since the present controversy centers on the
proper manner of releasing the IRA, the impleaded respondents are the
proper parties to this suit.
In fact in earlier petitions likewise involving the constitutionality of
provisions of previous general appropriations acts which this Court
granted, the therein respondent officials were the same as those in the
present case, e.g.,Guingona v. Carague12 and PHILCONSA v.
Enriquez.13
Constitutionality of the GAA Provisions

Nonetheless, the present petition cannot be treated as an unsigned

pleading. For even if the rule that representatives of corporate entities
must present the requisite authorization were to be strictly applied, there
would remain among the multi-group-petitioners the individuals who
validly executed verifications in their own names, namely, petitioners
Adelino C. Lavador, Punong Barangay Isabel Mendez, and Punong
Barangay Carolina Romanos.
At all events, in light of the following ruling of this Court in Shipside Inc. v.
CA:10
. . . in Loyola, Roadway, and Uy, the Court excused non-compliance with
the requirement as to the certificate of non-forum shopping. With more
reason should we allow the instant petition since petitioner herein did
submit a certification on non-forum shopping, failing only to show proof
that the signatory was authorized to do so. Thatpetitioner subsequently
submitted a secretary's certificate attesting that Balbin was authorized to
file an action on behalf of petitioner likewise mitigates this oversight.
It must also be kept in mind that while the requirement of the certificate of
non-forum shopping is mandatory, nonetheless the requirements must
not be interpreted too literally and thus defeat the objective of preventing
the undesirable practice of forum-shopping (Bernardo v. NLRC, 255
SCRA 108 [1996]). Lastly, technical rules of procedure should be used to
promote, not frustrate justice. While the swift unclogging of court dockets
is a laudable objective, the granting of substantial justice is an even more
urgent ideal. (Underscoring supplied),
a too literal interpretation must be avoided if it defeats the objective of
preventing the practice of forum shopping.

Article X, Section 6 of the Constitution provides:

SECTION 6. Local government units shall have a just share, as
determined by law, in the national taxes which shall be automatically
released to them.
Petitioners argue that the GAA violated this constitutional mandate when
it made the release of IRA contingent on whether revenue collections
could meet the revenue targets originally submitted by the President,
rather than making the release automatic.
Respondents counterargue that the above constitutional provision
is addressed not to the legislature but to the executive, hence, the same
does not prevent the legislature from imposing conditions upon the
release of the IRA. They cite the exchange between Commissioner (now
Chief Justice) Davide and Commissioner Nolledo in the deliberations of
the Constitutional Commission on the above-quoted Sec. 6, Art. X of the
Constitution, to wit:
THE PRESIDENT. How about the second sentence?
MR. DAVIDE. The second sentence would be a new section that would
be Section 13. As modified it will read as follows: "LOCAL
GOVERNMENT UNITS SHALL HAVE A JUST SHARE, AS
DETERMINED BY LAW, in the national taxes WHICH SHALL BE
automatically PERIODICALLY released to them."
MR. NOLLEDO. That will be Section 12, subsection (1) in the
amendment.

MR. DAVIDE. No, we will just delete that because the second would be
another section so Section 12 would only be this: "LOCAL
GOVERNMENT UNITS SHALL HAVE A JUST SHARE, AS
DETERMINED BY LAW, in the national taxes WHICH SHALL BE
automatically PERIODICALLY released to them."
MR. NOLLEDO. But the word "PERIODICALLY" may mean possibly
withholding the automatic release to them by adopting certain periods of
automatic release. If we use the word "automatically" without
"PERIODICALLY," the latter may be already contemplated by
"automatically." So, the Committee objects to the word "PERIODICALLY."
MR. DAVIDE. If we do not say PERIODICALLY, it might be very, very
difficult to comply with it because these are taxes collected and actually
released by the national government every quarter. It is not that upon
collection a portion should immediately be released. It is quarterly.
Otherwise, the national government will have to remit everyday and that
would be very expensive.
MR. NOLLEDO. That is not hindered by the word "automatically." But if
we put "automatically" and "PERIODICALLY" at the same time, that
means certain periods have to be observed as will be set forth by
theBudget Officer thereby negating the meaning of "automatically."
MR. DAVIDE. On the other hand, if we do not state PERIODICALLY, it
may be done every semester; it may be done at the end of the year. It is
still automatic release.
MR. NOLLEDO. As far as the Committee is concerned, we vigorously
object to the word "PERIODICALLY."
MR. DAVIDE. Only the word PERIODICALLY?
MR. NOLLEDO. If the Commissioner is amenable to deleting that, we will
accept the amendment.
MR. DAVIDE. I will agree to the deletion of the word PERIODICALLY.
MR. NOLLEDO. Thank you.
The Committee accepts the amendment. (Emphasis supplied)14
In the above exchange of statements, it is clear that although
Commissioners Davide and Nolledo held different views with regard to
the proper wording of the constitutional provision, they shared a common
assumption that the entity which would execute the automatic release of
internal revenue was the executive department.
Commissioner Davide referred to the national government as the entity
that collects and remits internal revenue. Similarly, Commissioner Nolledo
alluded to the Budget Officer, who is clearly under the executive branch.
Respondents thus infer that the subject constitutional provision merely
prevents the executive branch of the government from "unilaterally"
withholding the IRA, but not the legislature from authorizing the executive
branch to withhold the same. In the words of respondents, "This
essentially means that the President or any member of the Executive
Department cannot unilaterally, i.e., without the backing of statute,
withhold the release of the IRA."15
Respondents' position does not lie.
As the Constitution lays upon the executive the duty to automatically
release the just share of local governments in the national taxes, so it
enjoins the legislature not to pass laws that might prevent the executive
from performing this duty. To hold that the executive branch may
disregard constitutional provisions which define its duties, provided it has
the backing of statute, is virtually to make the Constitution amendable by
statute - a proposition which is patently absurd.

Moreover, there is merit in the argument of the intervenor Province of

Batangas that, if indeed the framers intended to allow the enactment of
statutes making the release of IRA conditional instead of automatic, then
Article X, Section 6 of the Constitution would have been worded
differently. Instead of reading "Local government units shall have a just
share, as determined by law, in the national taxes which shall be
automatically released to them" (italics supplied), it would have read as
follows, so the Province of Batangas posits:
"Local government units shall have a just share, as determined by law, in
the national taxes which shall be [automatically] released to them as
provided by law," or,
"Local government units shall have a just share in the national taxes
which shall be [automatically] released to them as provided by law," or
"Local government units shall have a just share, as determined by law, in
the national taxes which shall be automatically released to them subject
to exceptions Congress may provide."16 (Italics supplied)
Since, under Article X, Section 6 of the Constitution, only the just share of
local governments is qualified by the words "as determined by law," and
not the release thereof, the plain implication is that Congress is not
authorized by the Constitution to hinder or impede the automatic release
of the IRA.
Indeed, that Article X, Section 6 of the Constitution did bind the legislative
just as much as the executive branch was presumed in the ruling of this
Court in the case of The Province of Batangas v. Romulo17 which is
analogous in many respects to the one at bar.
In Batangas, the petitioner therein challenged the constitutionality of
certain provisos of the GAAs for FY 1999, 2000, and 2001 which set up
the Local Government Service Equalization Fund (LGSEF). The LGSEF
was a portion of the IRA which was to be released only upon a finding of
the Oversight Committee on Devolution that the LGU concerned had
complied with the guidelines issued by said committee. This Court
measured the challenged legislative acts against Article X, Section 6 and
declared them unconstitutional - a ruling which presupposes that the
legislature, like the executive, is mandated by said constitutional
provision to ensure that the just share of local governments in the
national taxes are automatically released.
Respondents, in further support of their claim that the automatic release
requirement in the Constitution constrains only the executive branch and
not the legislature, cite three statutory provisions whereby the legislature
authorized the executive branch to withhold the IRA in certain
circumstances, namely, Section 70 of the Philippine National Police
Reform and Reorganization Act of 1998,18 Section 531(e) of the Local
Government Code,19 and Section 10 of Republic Act 7924
(1995).20 Towards the same end, respondents also cite Rule XXXII,
Article 383(c) of the Rules and Regulations Implementing the Local
Government Code.21
While statutes and implementing rules are entitled to great weight in
constitutional construction as indicators of contemporaneous
interpretation, such interpretation is not necessarily binding or conclusive
on the courts. InTaada v. Cuenco, the Court held:
As a consequence, "where the meaning of a constitutional provision is
clear, a contemporaneous or practical . . . executive interpretation thereof
is entitled to no weight and will not be allowed to distort or in any way
change its natural meaning." The reason is that "the application of the
doctrine of contemporaneous construction is more restricted as applied to
the interpretation of constitutional provisions than when applied to
statutory provisions," and that "except as to matters committed by the
constitution itself to the discretion of some other
department, contemporaneous or practical construction is not necessarily

binding upon the courts, even in a doubtful case." Hence, "if in the
judgment of the court, such construction is erroneous and its further
application is not made imperative by any paramount considerations of
public policy, it may be rejected." (Emphasis and underscoring supplied,
citations omitted)22
The validity of the legislative acts assailed in the present case should,
therefore, be assessed in light of Article X, Section 6 of the Constitution.
Again, in Batangas,23 this Court interpreted the subject constitutional
provision as follows:
When parsed, it would be readily seen that this provision mandates that
(1) the LGUs shall have a "just share" in the national taxes; (2) the "just
share" shall be determined by law; and (3) the "just share" shall be
automatically released to the LGUs.
xxx
Webster's Third New International Dictionary defines "automatic" as
"involuntary either wholly or to a major extent so that any activity of the
will is largely negligible; of a reflex nature; without volition; mechanical;
like or suggestive of an automaton." Further, the word "automatically" is
defined as "in an automatic manner: without thought or conscious
intention." Being "automatic," thus, connotes something mechanical,
spontaneous and perfunctory. x x x" (Emphasis and underscoring
supplied)24
Further on, the Court held:
To the Court's mind, the entire process involving the distribution and
release of the LGSEF is constitutionally impermissible. The LGSEF is
part of the IRA or "just share" of the LGUs in the national taxes. To
subject its distribution and release to the vagaries of the implementing
rules and regulations, including the guidelines and mechanisms
unilaterally prescribed by the Oversight Committee from time to time, as
sanctioned by the assailed provisos in the GAAs of 1999, 2000 and 2001
and the OCD resolutions, makes the release not automatic, a flagrant
violation of the constitutional and statutory mandate that the "just share"
of the LGUs "shall be automatically released to them." The LGUs are,
thus, placed at the mercy of the Oversight Committee.
Where the law, the Constitution in this case, is clear and unambiguous, it
must be taken to mean exactly what it says, and courts have no choice
but to see to it that the mandate is obeyed. Moreover, as correctly posited
by the petitioner, the use of the word "shall" connotes a mandatory order.
Its use in a statute denotes an imperative obligation and is inconsistent
with the idea of discretion. x x x (Emphasis and underscoring supplied)25
While "automatic release" implies that the just share of the local
governments determined by law should be released to them as a matter
of course, the GAA provisions, on the other hand, withhold its release
pending an event which is not even certain of occurring. To rule that the
term "automatic release" contemplates such conditional release would be
to strip the term "automatic" of all meaning.
Additionally, to interpret the term automatic release in such a broad
manner would be inconsistent with the ruling inPimentel v. Aguirre.26 In
the said case, the executive withheld the release of the IRA pending an
assessment very similar to the one provided in the GAA. This Court ruled
that such withholding contravened the constitutional mandate of an
automatic release, viz:
Section 4 of AO 372 cannot, however, be upheld. A basic feature of local
fiscal autonomy is the automatic release of the shares of LGUs in the
national internal revenue. This is mandated by no less than the
Constitution. The Local Government Code specifies further that the
release shall be made directly to the LGU concerned within five (5) days

after every quarter of the year and "shall not be subject to any lien or
holdback that may be imposed by the national government for whatever
purpose." As a rule, the term "shall" is a word of command that must be
given a compulsory meaning. The provision is, therefore, imperative.
Section 4 of AO 372, however, orders the withholding, effective January
1, 1998, of 10 percent of the LGUs' IRA "pending the assessment and
evaluation by the Development Budget Coordinating Committee of the
emerging fiscal situation" in the country. Such withholding clearly
contravenes the Constitution and the law. x x x27 (Italics in the original;
underscoring supplied)
There is no substantial difference between the withholding of IRA
involved in Pimentel and that in the present case, except that here it is
the legislature, not the executive, which has authorized the withholding of
the IRA. The distinction notwithstanding, the ruling in Pimentel remains
applicable. As explained above, Article X, Section 6 of the Constitution the same provision relied upon in Pimentel - enjoins both the legislative
and executive branches of government. Hence, as in Pimentel, under the
same constitutional provision, the legislative is barred from withholding
the release of the IRA.
It bears stressing, however, that in light of the proviso in Section 284 of
the Local Government Code which reads:
Provided, That in the event that the national government incurs an
unmanageable public sector deficit, the President of the Philippines is
hereby authorized, upon the recommendation of Secretary of Finance,
Secretary of Interior and Local Government and Secretary of Budget and
Management, and subject to consultation with the presiding officers of
both Houses of Congress and the presidents of the "liga," to make the
necessary adjustments in the internal revenue allotment of local
government units but in no case shall the allotment be less than thirty
percent (30%) of the collection of national internal revenue taxes of the
third fiscal year preceding the current fiscal year: Provided, further, That
in the first year of the effectivity of this Code, the local government units
shall, in addition to the thirty percent (30%) internal revenue allotment
which shall include the cost of devolved functions for essential public
services, be entitled to receive the amount equivalent to the cost of
devolved personal services. (Underscoring supplied),
the only possible exception to mandatory automatic release of the IRA is,
as held in Batangas:
if the national internal revenue collections for the current fiscal year is
less than 40 percent of the collections of the preceding third fiscal year, in
which case what should be automatically released shall be a
proportionate amount of the collections for the current fiscal year. The
adjustment may even be made on a quarterly basis depending on the
actual collections of national internal revenue taxes for the quarter of the
current fiscal year. x x x28
A final word. This Court recognizes that the passage of the GAA
provisions by Congress was motivated by the laudable intent to "lower
the budget deficit in line with prudent fiscal management."29 The
pronouncement inPimentel, however, must be echoed: "[T]he rule of law
requires that even the best intentions must be carried out within the
parameters of the Constitution and the law. Verily, laudable purposes
must be carried out by legal methods."30
WHEREFORE, the petition is GRANTED. XXXVII and LIV Special
Provisions 1 and 4 of the Year 2000 GAA are hereby declared
unconstitutional insofar as they set apart a portion of the IRA, in the
amount of P10 Billion, as part of the UNPROGRAMMED FUND.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

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

EN BANC

LUIS "BAROK" BIRAOGO, Petitioner,

vs.
THE COMMISSION ON ELECTIONS and EXECUTIVE SECRETARY
PAQUITO N. OCHOA, JR., Respondents.

G.R. No. 196271

October 18, 2011

DATU MICHAEL ABAS KIDA, in his personal capacity, and in

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

G.R. No. 197392

x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 197454
JACINTO V. PARAS, Petitioner,
vs.
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., and the
COMMISSION ON ELECTIONS, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
MINORITY RIGHTS FORUM, PHILIPPINES, INC., RespondentsIntervenor.

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

DECISION

G.R. No. 196305

BRION, J.:

BASARI D. MAPUPUNO, Petitioner,

vs.
SIXTO BRILLANTES, in his capacity as Chairman of the Commission on
Elections, FLORENCIO ABAD, JR. in his capacity as Secretary of the
Department of Budget and Management, PACQUITO OCHOA, JR., in his
capacity as Executive Secretary, JUAN PONCE ENRILE, in his capacity
as Senate President, and FELICIANO BELMONTE, in his capacity as
Speaker of the House of Representatives, Respondents.

G.R. No. 197221

On June 30, 2011, Republic Act (RA) No. 10153, entitled "An Act
Providing for the Synchronization of the Elections in the Autonomous
Region in Muslim Mindanao (ARMM) with the National and Local
Elections and for Other Purposes" was enacted. The law reset the ARMM
elections from the 8th of August 2011, to the second Monday of May
2013 and every three (3) years thereafter, to coincide with the countrys
regular national and local elections. The law as well granted the
President the power to "appoint officers-in-charge (OICs) for the Office of
the Regional Governor, the Regional Vice-Governor, and the Members of
the Regional Legislative Assembly, who shall perform the functions
pertaining to the said offices until the officials duly elected in the May
2013 elections shall have qualified and assumed office."

REP. EDCEL C. LAGMAN, Petitioner,

vs.
PAQUITO N. OCHOA, JR., in his capacity as the Executive Secretary,
and the COMMISSION ON ELECTIONS, Respondents.

Even before its formal passage, the bills that became RA No. 10153
already spawned petitions against their validity; House Bill No. 4146 and
Senate Bill No. 2756 were challenged in petitions filed with this Court.
These petitions multiplied after RA No. 10153 was passed.

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

Factual Antecedents

G.R. No. 197280

The State, through Sections 15 to 22, Article X of the 1987 Constitution,

mandated the creation of autonomous regions in Muslim Mindanao and
the Cordilleras. Section 15 states:

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

ALMARIM CENTI TILLAH, DATU CASAN CONDING CANA, and

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

Section 15. There shall be created autonomous regions in Muslim

Mindanao and in the Cordilleras consisting of provinces, cities,
municipalities, and geographical areas sharing common and distinctive
historical and cultural heritage, economic and social structures, and other
relevant characteristics within the framework of this Constitution and the
national sovereignty as well as territorial integrity of the Republic of the
Philippines.
Section 18 of the Article, on the other hand, directed Congress to enact
an organic act for these autonomous regions to concretely carry into
effect the granted autonomy.

G.R. No. 197282

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

Section 18. The Congress shall enact an organic act for each
autonomous region with the assistance and participation of the regional
consultative commission composed of representatives appointed by the
President from a list of nominees from multisectoral bodies. The organic
act shall define the basic structure of government for the region
consisting of the executive department and legislative assembly, both of

which shall be elective and representative of the constituent political

units. The organic acts shall likewise provide for special courts with
personal, family and property law jurisdiction consistent with the
provisions of this Constitution and national laws.
The creation of the autonomous region shall be effective when approved
by a majority of the votes cast by the constituent units in a plebiscite
called for the purpose, provided that only provinces, cities, and
geographic areas voting favorably in such plebiscite shall be included in
the autonomous region.
On August 1, 1989 or two years after the effectivity of the 1987
Constitution, Congress acted through Republic Act (RA) No. 6734 entitled
"An Act Providing for an Organic Act for the Autonomous Region in
Muslim Mindanao." A plebiscite was held on November 6, 1990 as
required by Section 18(2), Article X of RA No. 6734, thus fully
establishing the Autonomous Region of Muslim Mindanao (ARMM). The
initially assenting provinces were Lanao del Sur, Maguindanao, Sulu and
Tawi-tawi. RA No. 6734 scheduled the first regular elections for the
regional officials of the ARMM on a date not earlier than 60 days nor later
than 90 days after its ratification.
RA No. 9054 (entitled "An Act to Strengthen and Expand the Organic Act
for the Autonomous Region in Muslim Mindanao, Amending for the
Purpose Republic Act No. 6734, entitled An Act Providing for the
Autonomous Region in Muslim Mindanao, as Amended") was the next
legislative act passed. This law provided further refinement in the basic
ARMM structure first defined in the original organic act, and reset the
regular elections for the ARMM regional officials to the second Monday of
September 2001.
Congress passed the next law affecting ARMM RA No. 91401 - on
June 22, 2001. This law reset the first regular elections originally
scheduled under RA No. 9054, to November 26, 2001. It likewise set the
plebiscite to ratify RA No. 9054 to not later than August 15, 2001.
RA No. 9054 was ratified in a plebiscite held on August 14, 2001. The
province of Basilan and Marawi City voted to join ARMM on the same
date.
RA No. 93332 was subsequently passed by Congress to reset the ARMM
regional elections to the 2nd Monday of August 2005, and on the same
date every 3 years thereafter. Unlike RA No. 6734 and RA No. 9054, RA
No. 9333 was not ratified in a plebiscite.
Pursuant to RA No. 9333, the next ARMM regional elections should have
been held on August 8, 2011. COMELEC had begun preparations for
these elections and had accepted certificates of candidacies for the
various regional offices to be elected. But on June 30, 2011, RA No.
10153 was enacted, resetting the ARMM elections to May 2013, to
coincide with the regular national and local elections of the country.
RA No. 10153 originated in the House of Representatives as House Bill
(HB) No. 4146, seeking the postponement of the ARMM elections
scheduled on August 8, 2011. On March 22, 2011, the House of
Representatives passed HB No. 4146, with one hundred ninety one (191)
Members voting in its favor.
After the Senate received HB No. 4146, it adopted its own version,
Senate Bill No. 2756 (SB No. 2756), on June 6, 2011. Thirteen (13)
Senators voted favorably for its passage. On June 7, 2011, the House of
Representative concurred with the Senate amendments, and on June 30,
2011, the President signed RA No. 10153 into law.
As mentioned, the early challenge to RA No. 10153 came through a
petition filed with this Court G.R. No. 1962713 - assailing the
constitutionality of both HB No. 4146 and SB No. 2756, and challenging
the validity of RA No. 9333 as well for non-compliance with the

constitutional plebiscite requirement. Thereafter, petitioner Basari

Mapupuno in G.R. No. 196305 filed another petition4 also assailing the
validity of RA No. 9333.
With the enactment into law of RA No. 10153, the COMELEC stopped its
preparations for the ARMM elections. The law gave rise as well to the
filing of the following petitions against its constitutionality:
a) Petition for Certiorari and Prohibition5 filed by Rep. Edcel Lagman as a
member of the House of Representatives against Paquito Ochoa, Jr. (in
his capacity as the Executive Secretary) and the COMELEC, docketed as
G.R. No. 197221;
b) Petition for Mandamus and Prohibition6 filed by Atty. Romulo
Macalintal as a taxpayer against the COMELEC, docketed as G.R. No.
197282;
c) Petition for Certiorari and Mandamus, Injunction and Preliminary
Injunction7 filed by Louis "Barok" Biraogo against the COMELEC and
Executive Secretary Paquito N. Ochoa, Jr., docketed as G.R. No.
197392; and
d) Petition for Certiorari and Mandamus8 filed by Jacinto Paras as a
member of the House of Representatives against Executive Secretary
Paquito Ochoa, Jr. and the COMELEC, docketed as G.R. No. 197454.
Petitioners Alamarim Centi Tillah and Datu Casan Conding Cana as
registered voters from the ARMM, with the Partido Demokratiko Pilipino
Lakas ng Bayan (a political party with candidates in the ARMM regional
elections scheduled for August 8, 2011), also filed a Petition for
Prohibition and Mandamus9 against the COMELEC, docketed as G.R.
No. 197280, to assail the constitutionality of RA No. 9140, RA No. 9333
and RA No. 10153.
Subsequently, Anak Mindanao Party-List, Minority Rights Forum
Philippines, Inc. and Bangsamoro Solidarity Movement filed their own
Motion for Leave to Admit their Motion for Intervention and Comment-inIntervention dated July 18, 2011. On July 26, 2011, the Court granted the
motion. In the same Resolution, the Court ordered the consolidation of all
the petitions relating to the constitutionality of HB No. 4146, SB No. 2756,
RA No. 9333, and RA No. 10153.
Oral arguments were held on August 9, 2011 and August 16, 2011.
Thereafter, the parties were instructed to submit their respective
memoranda within twenty (20) days.
On September 13, 2011, the Court issued a temporary restraining order
enjoining the implementation of RA No. 10153 and ordering the
incumbent elective officials of ARMM to continue to perform their
functions should these cases not be decided by the end of their term on
September 30, 2011.
The Arguments
The petitioners assailing RA No. 9140, RA No. 9333 and RA No. 10153
assert that these laws amend RA No. 9054 and thus, have to comply with
the supermajority vote and plebiscite requirements prescribed under
Sections 1 and 3, Article XVII of RA No. 9094 in order to become
effective.
The petitions assailing RA No. 10153 further maintain that it is
unconstitutional for its failure to comply with the three-reading
requirement of Section 26(2), Article VI of the Constitution. Also cited as
grounds are the alleged violations of the right of suffrage of the people of
ARMM, as well as the failure to adhere to the "elective and
representative" character of the executive and legislative departments of
the ARMM. Lastly, the petitioners challenged the grant to the President of
the power to appoint OICs to undertake the functions of the elective

ARMM officials until the officials elected under the May 2013 regular
elections shall have assumed office. Corrolarily, they also argue that the
power of appointment also gave the President the power of control over
the ARMM, in complete violation of Section 16, Article X of the
Constitution.

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

The Issues

Section 5. The six-year term of the incumbent President and Vice

President elected in the February 7, 1986 election is, for purposes of
synchronization of elections, hereby extended to noon of June 30, 1992.

From the parties submissions, the following issues were recognized and
argued by the parties in the oral arguments of August 9 and 16, 2011:
I. Whether the 1987 Constitution mandates the synchronization of
elections

xxx

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

II. Whether the passage of RA No. 10153 violates Section 26(2), Article
VI of the 1987 Constitution
III. Whether the passage of RA No. 10153 requires a supermajority vote
and plebiscite
A. Does the postponement of the ARMM regular elections constitute an
amendment to Section 7, Article XVIII of RA No. 9054?
B. Does the requirement of a supermajority vote for amendments or
revisions to RA No. 9054 violate Section 1 and Section 16(2), Article VI of
the 1987 Constitution and the corollary doctrine on irrepealable laws?
C. Does the requirement of a plebiscite apply only in the creation of
autonomous regions under paragraph 2, Section 18, Article X of the 1987
Constitution?
IV. Whether RA No. 10153 violates the autonomy granted to the ARMM
V. Whether the grant of the power to appoint OICs violates:
A. Section 15, Article X of the 1987 Constitution
B. Section 16, Article X of the 1987 Constitution
C. Section 18, Article X of the 1987 Constitution
VI. Whether the proposal to hold special elections is constitutional and
legal.
We shall discuss these issues in the order they are presented above.
OUR RULING
We resolve to DISMISS the petitions and thereby UPHOLD the
constitutionality of RA No. 10153 in toto.
I. Synchronization as a recognized constitutional mandate
The respondent Office of the Solicitor General (OSG) argues that the
Constitution mandates synchronization, and in support of this position,
cites Sections 1, 2 and 5, Article XVIII (Transitory Provisions) of the 1987
Constitution, which provides:
Section 1. The first elections of Members of the Congress under this
Constitution shall be held on the second Monday of May, 1987.
The first local elections shall be held on a date to be determined by the
President, which may be simultaneous with the election of the Members
of the Congress. It shall include the election of all Members of the city or
municipal councils in the Metropolitan Manila area.
Section 2. The Senators, Members of the House of Representatives and
the local officials first elected under this Constitution shall serve until
noon of June 30, 1992.

While the Constitution does not expressly state that Congress has to
synchronize national and local elections, the clear intent towards this
objective can be gleaned from the Transitory Provisions (Article XVIII) of
the Constitution,10 which show the extent to which the Constitutional
Commission, by deliberately making adjustments to the terms of the
incumbent officials, sought to attain synchronization of elections.11
The objective behind setting a common termination date for all elective
officials, done among others through the shortening the terms of the
twelve winning senators with the least number of votes, is to synchronize
the holding of all future elections whether national or local to once
every three years.12 This intention finds full support in the discussions
during the Constitutional Commission deliberations.13
These Constitutional Commission exchanges, read with the provisions of
the Transitory Provisions of the Constitution, all serve as patent indicators
of the constitutional mandate to hold synchronized national and local
elections, starting the second Monday of May, 1992 and for all the
following elections.
This Court was not left behind in recognizing the synchronization of the
national and local elections as a constitutional mandate. In Osmea v.
Commission on Elections,14 we explained:
It is clear from the aforequoted provisions of the 1987 Constitution that
the terms of office of Senators, Members of the House of
Representatives, the local officials, the President and the Vice-President
have been synchronized to end on the same hour, date and year noon
of June 30, 1992.
It is likewise evident from the wording of the above-mentioned Sections
that the term of synchronization is used synonymously as the
phrase holding simultaneously since this is the precise intent in
terminating their Office Tenure on the same day or occasion. This
common termination date will synchronize future elections to once every
three years (Bernas, the Constitution of the Republic of the Philippines,
Vol. II, p. 605).
That the election for Senators, Members of the House of Representatives
and the local officials (under Sec. 2, Art. XVIII) will have to be
synchronized with the election for President and Vice President (under
Sec. 5, Art. XVIII) is likewise evident from the x x x records of the
proceedings in the Constitutional Commission. [Emphasis supplied.]
Although called regional elections, the ARMM elections should be
included among the elections to be synchronized as it is a "local" election
based on the wording and structure of the Constitution.1avvphil
A basic rule in constitutional construction is that the words used should
be understood in the sense that they have in common use and given their
ordinary meaning, except when technical terms are employed, in which
case the significance thus attached to them prevails.15 As this Court
explained in People v. Derilo,16 "[a]s the Constitution is not primarily a

lawyers document, its language should be understood in the sense that it

may have in common. Its words should be given their ordinary meaning
except where technical terms are employed."
Understood in its ordinary sense, the word "local" refers to something that
primarily serves the needs of a particular limited district, often a
community or minor political subdivision.17 Regional elections in the
ARMM for the positions of governor, vice-governor and regional
assembly representatives obviously fall within this classification, since
they pertain to the elected officials who will serve within the limited region
of ARMM.
From the perspective of the Constitution, autonomous regions are
considered one of the forms of local governments, as evident from Article
X of the Constitution entitled "Local Government." Autonomous regions
are established and discussed under Sections 15 to 21 of this Article
the article wholly devoted to Local Government. That an autonomous
region is considered a form of local government is also reflected in
Section 1, Article X of the Constitution, which provides:
Section 1. The territorial and political subdivisions of the Republic of the
Philippines are the provinces, cities, municipalities, and barangays. There
shall be autonomous regions in Muslim Mindanao, and the Cordilleras as
hereinafter provided.
Thus, we find the contention that the synchronization mandated by the
Constitution does not include the regional elections of the ARMM
unmeritorious. We shall refer to synchronization in the course of our
discussions below, as this concept permeates the consideration of the
various issues posed in this case and must be recalled time and again for
its complete resolution.
II. The Presidents Certification on the Urgency of RA No. 10153
The petitioners in G.R. No. 197280 also challenge the validity of RA No.
10153 for its alleged failure to comply with Section 26(2), Article VI of the
Constitution18 which provides that before bills passed by either the
House or the Senate can become laws, they must pass through three
readings on separate days. The exception is when the President certifies
to the necessity of the bills immediate enactment.
The Court, in Tolentino v. Secretary of Finance,19 explained the effect of
the Presidents certification of necessity in the following manner:
The presidential certification dispensed with the requirement not only of
printing but also that of reading the bill on separate days. The phrase
"except when the President certifies to the necessity of its immediate
enactment, etc." in Art. VI, Section 26[2] qualifies the two stated
conditions before a bill can become a law: [i] the bill has passed three
readings on separate days and [ii] it has been printed in its final form and
distributed three days before it is finally approved.
xxx
That upon the certification of a bill by the President, the requirement of
three readings on separate days and of printing and distribution can be
dispensed with is supported by the weight of legislative practice. For
example, the bill defining the certiorari jurisdiction of this Court which, in
consolidation with the Senate version, became Republic Act No. 5440,
was passed on second and third readings in the House of
Representatives on the same day [May 14, 1968] after the bill had been
certified by the President as urgent.
In the present case, the records show that the President wrote to the
Speaker of the House of Representatives to certify the necessity of the
immediate enactment of a law synchronizing the ARMM elections with
the national and local elections.20 Following our Tolentino ruling, the

Presidents certification exempted both the House and the Senate from
having to comply with the three separate readings requirement.
On the follow-up contention that no necessity existed for the immediate
enactment of these bills since there was no public calamity or emergency
that had to be met, again we hark back to our ruling in Tolentino:
The sufficiency of the factual basis of the suspension of the writ of
habeas corpus or declaration of martial law Art. VII, Section 18, or the
existence of a national emergency justifying the delegation of
extraordinary powers to the President under Art. VI, Section 23(2) is
subject to judicial review because basic rights of individuals may be of
hazard. But the factual basis of presidential certification of bills, which
involves doing away with procedural requirements designed to insure that
bills are duly considered by members of Congress, certainly should elicit
a different standard of review. [Emphasis supplied.]
The House of Representatives and the Senate in the exercise of their
legislative discretion gave full recognition to the Presidents certification
and promptly enacted RA No. 10153. Under the circumstances, nothing
short of grave abuse of discretion on the part of the two houses of
Congress can justify our intrusion under our power of judicial review.21
The petitioners, however, failed to provide us with any cause or
justification for this course of action. Hence, while the judicial department
and this Court are not bound by the acceptance of the President's
certification by both the House of Representatives and the Senate,
prudent exercise of our powers and respect due our co-equal branches of
government in matters committed to them by the Constitution, caution a
stay of the judicial hand.22
In any case, despite the Presidents certification, the two-fold purpose
that underlies the requirement for three readings on separate days of
every bill must always be observed to enable our legislators and other
parties interested in pending bills to intelligently respond to them.
Specifically, the purpose with respect to Members of Congress is: (1) to
inform the legislators of the matters they shall vote on and (2) to give
them notice that a measure is in progress through the enactment
process.23
We find, based on the records of the deliberations on the law, that both
advocates and the opponents of the proposed measure had sufficient
opportunities to present their views. In this light, no reason exists to nullify
RA No. 10153 on the cited ground.
III. A. RA No. 9333 and RA No. 10153 are not amendments to RA No.
9054
The effectivity of RA No. 9333 and RA No. 10153 has also been
challenged because they did not comply with Sections 1 and 3, Article
XVII of RA No. 9054 in amending this law. These provisions require:
Section 1. Consistent with the provisions of the Constitution, this Organic
Act may be reamended or revised by the Congress of the Philippines
upon a vote of two-thirds (2/3) of the Members of the House of
Representatives and of the Senate voting separately.
Section 3. Any amendment to or revision of this Organic Act shall
become effective only when approved by a majority of the vote cast in a
plebiscite called for the purpose, which shall be held not earlier than sixty
(60) days or later than ninety (90) days after the approval of such
amendment or revision.
We find no merit in this contention.
In the first place, neither RA No. 9333 nor RA No. 10153 amends RA No.
9054. As an examination of these laws will show, RA No. 9054 only
provides for the schedule of the first ARMM elections and does not fix the

date of the regular elections. A need therefore existed for the Congress to
fix the date of the subsequent ARMM regular elections, which it did by
enacting RA No. 9333 and thereafter, RA No. 10153. Obviously, these
subsequent laws RA No. 9333 and RA No. 10153 cannot be
considered amendments to RA No. 9054 as they did not change or revise
any provision in the latter law; they merely filled in a gap in RA No. 9054
or supplemented the law by providing the date of the subsequent regular
elections.

Moreover, it would be noxious anathema to democratic principles for a

legislative body to have the ability to bind the actions of future legislative
body, considering that both assemblies are regarded with equal footing,
exercising as they do the same plenary powers. Perpetual infallibility is
not one of the attributes desired in a legislative body, and a legislature
which attempts to forestall future amendments or repeals of its
enactments labors under delusions of omniscience.
xxx

This view that Congress thought it best to leave the determination of

the date of succeeding ARMM elections to legislative discretion finds
support in ARMMs recent history.
To recall, RA No. 10153 is not the first law passed that rescheduled the
ARMM elections. The First Organic Act RA No. 6734 not only did not
fix the date of the subsequent elections; it did not even fix the specific
date of the first ARMM elections,24 leaving the date to be fixed in another
legislative enactment. Consequently, RA No. 7647,25 RA No.
8176,26 RA No. 8746,27 RA No. 8753,28 and RA No. 901229 were all
enacted by Congress to fix the dates of the ARMM elections. Since these
laws did not change or modify any part or provision of RA No. 6734, they
were not amendments to this latter law. Consequently, there was no need
to submit them to any plebiscite for ratification.
The Second Organic Act RA No. 9054 which lapsed into law on
March 31, 2001, provided that the first elections would be held on the
second Monday of September 2001. Thereafter, Congress passed RA
No. 914030to reset the date of the ARMM elections. Significantly, while
RA No. 9140 also scheduled the plebiscite for the ratification of the
Second Organic Act (RA No. 9054), the new date of the ARMM regional
elections fixed in RA No. 9140 was not among the provisions ratified in
the plebiscite held to approve RA No. 9054. Thereafter, Congress passed
RA No. 9333,31 which further reset the date of the ARMM regional
elections. Again, this law was not ratified through a plebiscite.
From these legislative actions, we see the clear intention of Congress to
treat the laws which fix the date of the subsequent ARMM elections as
separate and distinct from the Organic Acts. Congress only acted
consistently with this intent when it passed RA No. 10153 without
requiring compliance with the amendment prerequisites embodied in
Section 1 and Section 3, Article XVII of RA No. 9054.
III. B. Supermajority voting requirement unconstitutional for giving RA No.
9054 the character of an irrepealable law
Even assuming that RA No. 9333 and RA No. 10153 did in fact amend
RA No. 9054, the supermajority (2/3) voting requirement required under
Section 1, Article XVII of RA No. 905432 has to be struck down for giving
RA No. 9054 the character of an irrepealable law by requiring more than
what the Constitution demands.
Section 16(2), Article VI of the Constitution provides that a "majority of
each House shall constitute a quorum to do business." In other words, as
long as majority of the members of the House of Representatives or the
Senate are present, these bodies have the quorum needed to conduct
business and hold session. Within a quorum, a vote of majority is
generally sufficient to enact laws or approve acts.
In contrast, Section 1, Article XVII of RA No. 9054 requires a vote of no
less than two-thirds (2/3) of the Members of the House of
Representatives and of the Senate, voting separately, in order to
effectively amend RA No. 9054. Clearly, this 2/3 voting requirement is
higher than what the Constitution requires for the passage of bills, and
served to restrain the plenary powers of Congress to amend, revise or
repeal the laws it had passed. The Courts pronouncement in City of
Davao v. GSIS33 on this subject best explains the basis and reason for
the unconstitutionality:

A state legislature has a plenary law-making power over all subjects,

whether pertaining to persons or things, within its territorial jurisdiction,
either to introduce new laws or repeal the old, unless prohibited expressly
or by implication by the federal constitution or limited or restrained by its
own. It cannot bind itself or its successors by enacting irrepealable laws
except when so restrained. Every legislative body may modify or abolish
the acts passed by itself or its predecessors. This power of repeal may be
exercised at the same session at which the original act was passed; and
even while a bill is in its progress and before it becomes a law. This
legislature cannot bind a future legislature to a particular mode of repeal.
It cannot declare in advance the intent of subsequent legislatures or the
effect of subsequent legislation upon existing statutes.34 (Emphasis
ours.)
Thus, while a supermajority is not a total ban against a repeal, it is a
limitation in excess of what the Constitution requires on the passage of
bills and is constitutionally obnoxious because it significantly constricts
the future legislators room for action and flexibility.
III. C. Section 3, Article XVII of RA No. 9054 excessively enlarged the
plebiscite requirement found in Section 18, Article X of the Constitution
The requirements of RA No. 9054 not only required an unwarranted
supermajority, but enlarged as well the plebiscite requirement, as
embodied in its Section 3, Article XVII of that Act. As we did on the
supermajority requirement, we find the enlargement of the plebiscite
requirement required under Section 18, Article X of the Constitution to be
excessive to point of absurdity and, hence, a violation of the Constitution.
Section 18, Article X of the Constitution states that the plebiscite is
required only for the creation of autonomous regions and for determining
which provinces, cities and geographic areas will be included in the
autonomous regions. While the settled rule is that amendments to the
Organic Act have to comply with the plebiscite requirement in order to
become effective,35 questions on the extent of the matters requiring
ratification may unavoidably arise because of the seemingly general
terms of the Constitution and the obvious absurdity that would result if a
plebiscite were to be required for every statutory amendment.
Section 18, Article X of the Constitution plainly states that "The creation
of the autonomous region shall be effective when approved by the
majority of the votes case by the constituent units in a plebiscite called for
the purpose." With these wordings as standard, we interpret the
requirement to mean that only amendments to, or revisions of, the
Organic Act constitutionally-essential to the creation of autonomous
regions i.e., those aspects specifically mentioned in the Constitution
which Congress must provide for in the Organic Act require ratification
through a plebiscite. These amendments to the Organic Act are those
that relate to: (a) the basic structure of the regional government; (b) the
regions judicial system, i.e., the special courts with personal, family, and
property law jurisdiction; and, (c) the grant and extent of the legislative
powers constitutionally conceded to the regional government under
Section 20, Article X of the Constitution.36
The date of the ARMM elections does not fall under any of the matters
that the Constitution specifically mandated Congress to provide for in the
Organic Act. Therefore, even assuming that the supermajority votes and
the plebiscite requirements are valid, any change in the date of elections

cannot be construed as a substantial amendment of the Organic Act that

would require compliance with these requirements.
IV. The synchronization issue
As we discussed above, synchronization of national and local elections is
a constitutional mandate that Congress must provide for and this
synchronization must include the ARMM elections. On this point, an
existing law in fact already exists RA No. 7166 as the forerunner of
the current RA No. 10153. RA No. 7166 already provides for the
synchronization of local elections with the national and congressional
elections. Thus, what RA No. 10153 provides is an old matter for local
governments (with the exception of barangay and Sanggunian Kabataan
elections where the terms are not constitutionally provided) and is
technically a reiteration of what is already reflected in the law, given that
regional elections are in reality local elections by express constitutional
recognition.37
To achieve synchronization, Congress necessarily has to reconcile the
schedule of the ARMMs regular elections (which should have been held
in August 2011 based on RA No. 9333) with the fixed schedule of the
national and local elections (fixed by RA No. 7166 to be held in May
2013).
During the oral arguments, the Court identified the three options open to
Congress in order to resolve this problem. These options are: (1) to allow
the elective officials in the ARMM to remain in office in a hold over
capacity, pursuant to Section 7(1), Article VII of RA No. 9054, until those
elected in the synchronized elections assume office;38 (2) to hold special
elections in the ARMM, with the terms of those elected to expire when
those elected in the synchronized elections assume office; or (3) to
authorize the President to appoint OICs, pursuant to Section 3 of RA No.
10153, also until those elected in the synchronized elections assume
office.
As will be abundantly clear in the discussion below, Congress, in
choosing to grant the President the power to appoint OICs, chose the
correct option and passed RA No. 10153 as a completely valid law.
V. The Constitutionality of RA No. 10153
A. Basic Underlying Premises
To fully appreciate the available options, certain underlying material
premises must be fully understood. The first is the extent of the powers of
Congress to legislate; the second is the constitutional mandate for the
synchronization of elections; and the third is on the concept of autonomy
as recognized and established under the 1987 Constitution.
The grant of legislative power to Congress is broad, general and
comprehensive.39 The legislative body possesses plenary power for all
purposes of civil government.40 Any power, deemed to be legislative by
usage and tradition, is necessarily possessed by Congress, unless the
Constitution has lodged it elsewhere.41 Except as limited by the
Constitution, either expressly or impliedly, legislative power embraces all
subjects and extends to all matters of general concern or common
interest.42
The constitutional limitations on legislative power are either express or
implied. The express limitations are generally provided in some
provisions of the Declaration of Principles and State Policies (Article 2)
and in the provisions Bill of Rights (Article 3). Other constitutional
provisions (such as the initiative and referendum clause of Article 6,
Sections 1 and 32, and the autonomy provisions of Article X) provide their
own express limitations. The implied limitations are found "in the evident
purpose which was in view and the circumstances and historical events
which led to the enactment of the particular provision as a part of organic
law."43

The constitutional provisions on autonomy specifically, Sections 15 to

21 of Article X of the Constitution constitute express limitations on
legislative power as they define autonomy, its requirements and its
parameters, thus limiting what is otherwise the unlimited power of
Congress to legislate on the governance of the autonomous region.
Of particular relevance to the issues of the present case are the
limitations posed by the prescribed basic structure of government i.e.,
that the government must have an executive department and a legislative
assembly, both of which must be elective and representative of the
constituent political units; national government, too, must not encroach on
the legislative powers granted under Section 20, Article X. Conversely
and as expressly reflected in Section 17, Article X, "all powers and
functions not granted by this Constitution or by law to the autonomous
regions shall be vested in the National Government."
The totality of Sections 15 to 21 of Article X should likewise serve as a
standard that Congress must observe in dealing with legislation touching
on the affairs of the autonomous regions. The terms of these sections
leave no doubt on what the Constitution intends the idea of self-rule or
self-government, in particular, the power to legislate on a wide array of
social, economic and administrative matters. But equally clear under
these provisions are the permeating principles of national sovereignty
and the territorial integrity of the Republic, as expressed in the abovequoted Section 17 and in Section 15.44 In other words, the Constitution
and the supporting jurisprudence, as they now stand, reject the notion of
imperium et imperio45 in the relationship between the national and the
regional governments.
In relation with synchronization, both autonomy and the synchronization
of national and local elections are recognized and established
constitutional mandates, with one being as compelling as the other. If
their compelling force differs at all, the difference is in their coverage;
synchronization operates on and affects the whole country, while regional
autonomy as the term suggests directly carries a narrower regional
effect although its national effect cannot be discounted.
These underlying basic concepts characterize the powers and limitations
of Congress when it acted on RA No. 10153. To succinctly describe the
legal situation that faced Congress then, its decision to synchronize the
regional elections with the national, congressional and all other local
elections (save for barangay and sangguniang kabataan elections) left it
with the problem of how to provide the ARMM with governance in the
intervening period between the expiration of the term of those elected in
August 2008 and the assumption to office twenty-one (21) months
away of those who will win in the synchronized elections on May 13,
2013.
The problem, in other words, was for interim measures for this period,
consistent with the terms of the Constitution and its established
supporting jurisprudence, and with the respect due to the concept of
autonomy. Interim measures, to be sure, is not a strange phenomenon in
the Philippine legal landscape. The Constitutions Transitory Provisions
themselves collectively provide measures for transition from the old
constitution to the new46and for the introduction of new concepts.47 As
previously mentioned, the adjustment of elective terms and of elections
towards the goal of synchronization first transpired under the Transitory
Provisions. The adjustments, however, failed to look far enough or deeply
enough, particularly into the problems that synchronizing regional
autonomous elections would entail; thus, the present problem is with us
today.
The creation of local government units also represents instances when
interim measures are required. In the creation of Quezon del Sur48 and
Dinagat Islands,49 the creating statutes authorized the President to
appoint an interim governor, vice-governor and members of the
sangguniang panlalawigan although these positions are essentially
elective in character; the appointive officials were to serve until a new set

of provincial officials shall have been elected and qualified.50 A similar

authority to appoint is provided in the transition of a local government
from a sub-province to a province.51
In all these, the need for interim measures is dictated by necessity; outof-the-way arrangements and approaches were adopted or used in order
to adjust to the goal or objective in sight in a manner that does not do
violence to the Constitution and to reasonably accepted norms. Under
these limitations, the choice of measures was a question of wisdom left to
congressional discretion.
To return to the underlying basic concepts, these concepts shall serve as
the guideposts and markers in our discussion of the options available to
Congress to address the problems brought about by the synchronization
of the ARMM elections, properly understood as interim measures that
Congress had to provide. The proper understanding of the options as
interim measures assume prime materiality as it is under these terms that
the passage of RA No. 10153 should be measured, i.e., given the
constitutional objective of synchronization that cannot legally be faulted,
did Congress gravely abuse its discretion or violate the Constitution when
it addressed through RA No. 10153 the concomitant problems that the
adjustment of elections necessarily brought with it?
B. Holdover Option is Unconstitutional
We rule out the first option holdover for those who were elected in
executive and legislative positions in the ARMM during the 2008-2011
term as an option that Congress could have chosen because a
holdover violates Section 8, Article X of the Constitution. This provision
states:
Section 8. The term of office of elective local officials, except barangay
officials, which shall be determined by law, shall be three years and no
such official shall serve for more than three consecutive terms.
[emphases ours]
Since elective ARMM officials are local officials, they are covered and
bound by the three-year term limit prescribed by the Constitution; they
cannot extend their term through a holdover. As this Court put in Osmea
v. COMELEC:52
It is not competent for the legislature to extend the term of officers by
providing that they shall hold over until their successors are elected and
qualified where the constitution has in effect or by clear implication
prescribed the term and when the Constitution fixes the day on which the
official term shall begin, there is no legislative authority to continue the
office beyond that period, even though the successors fail to qualify
within the time.
In American Jurisprudence it has been stated as follows:
"It has been broadly stated that the legislature cannot, by an act
postponing the election to fill an office the term of which is limited by the
Constitution, extend the term of the incumbent beyond the period as
limited by the Constitution." [Emphasis ours.]
Independently of the Osmea ruling, the primacy of the Constitution as
the supreme law of the land dictates that where the Constitution has itself
made a determination or given its mandate, then the matters so
determined or mandated should be respected until the Constitution itself
is changed by amendment or repeal through the applicable constitutional
process. A necessary corollary is that none of the three branches of
government can deviate from the constitutional mandate except only as
the Constitution itself may allow.53 If at all, Congress may only pass
legislation filing in details to fully operationalize the constitutional
command or to implement it by legislation if it is non-self-executing; this
Court, on the other hand, may only interpret the mandate if an
interpretation is appropriate and called for.54

In the case of the terms of local officials, their term has been fixed clearly
and unequivocally, allowing no room for any implementing legislation with
respect to the fixed term itself and no vagueness that would allow an
interpretation from this Court. Thus, the term of three years for local
officials should stay at three (3) years as fixed by the Constitution and
cannot be extended by holdover by Congress.
If it will be claimed that the holdover period is effectively another term
mandated by Congress, the net result is for Congress to create a new
term and to appoint the occupant for the new term. This view like the
extension of the elective term is constitutionally infirm because
Congress cannot do indirectly what it cannot do directly, i.e., to act in a
way that would effectively extend the term of the incumbents. Indeed, if
acts that cannot be legally done directly can be done indirectly, then all
laws would be illusory.55 Congress cannot also create a new term and
effectively appoint the occupant of the position for the new term. This is
effectively an act of appointment by Congress and an unconstitutional
intrusion into the constitutional appointment power of the
President.56 Hence, holdover whichever way it is viewed is a
constitutionally infirm option that Congress could not have undertaken.
Jurisprudence, of course, is not without examples of cases where the
question of holdover was brought before, and given the imprimatur of
approval by, this Court. The present case though differs significantly from
past cases with contrary rulings, particularly from Sambarani v.
COMELEC,57 Adap v. Comelec,58 and Montesclaros v.
Comelec,59 where the Court ruled that the elective officials could hold on
to their positions in a hold over capacity.
All these past cases refer to elective barangay or sangguniang kabataan
officials whose terms of office are not explicitly provided for in the
Constitution; the present case, on the other hand, refers to local elective
officials the ARMM Governor, the ARMM Vice-Governor, and the
members of the Regional Legislative Assembly whose terms fall within
the three-year term limit set by Section 8, Article X of the Constitution.
Because of their constitutionally limited term, Congress cannot legislate
an extension beyond the term for which they were originally elected.
Even assuming that holdover is constitutionally permissible, and there
had been statutory basis for it (namely Section 7, Article VII of RA No.
9054) in the past,60 we have to remember that the rule of holdover can
only apply as an available option where no express or implied legislative
intent to the contrary exists; it cannot apply where such contrary intent is
evident.61
Congress, in passing RA No. 10153, made it explicitly clear that it had the
intention of suppressing the holdover rule that prevailed under RA No.
9054 by completely removing this provision. The deletion is a policy
decision that is wholly within the discretion of Congress to make in the
exercise of its plenary legislative powers; this Court cannot pass
upon questions of wisdom, justice or expediency of legislation,62 except
where an attendant unconstitutionality or grave abuse of discretion
results.
C. The COMELEC has no authority to order special elections
Another option proposed by the petitioner in G.R. No. 197282 is for this
Court to compel COMELEC to immediately conduct special elections
pursuant to Section 5 and 6 of Batas Pambansa Bilang (BP) 881.
The power to fix the date of elections is essentially legislative in nature,
as evident from, and exemplified by, the following provisions of the
Constitution:
Section 8, Article VI, applicable to the legislature, provides:

Section 8. Unless otherwise provided by law, the regular election of the

Senators and the Members of the House of Representatives shall be held
on the second Monday of May. [Emphasis ours]

resulted in a failure to elect but not later than thirty days after the
cessation of the cause for such postponement or suspension of the
election or failure to elect.

Section 4(3), Article VII, with the same tenor but applicable solely to the
President and Vice-President, states:

Section 6. Failure of election. - If, on account of force

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

xxxx
Section 4. xxx Unless otherwise provided by law, the regular election for
President and Vice-President shall be held on the second Monday of
May. [Emphasis ours]
while Section 3, Article X, on local government, provides:
Section 3. The Congress shall enact a local government code which shall
provide for xxx the qualifications, election, appointment and removal,
term, salaries, powers and functions and duties of local officials[.]
[Emphases ours]
These provisions support the conclusion that no elections may be held on
any other date for the positions of President, Vice President, Members of
Congress and local officials, except when so provided by another Act of
Congress, or upon orders of a body or officer to whom Congress may
have delegated either the power or the authority to ascertain or fill in the
details in the execution of that power.63
Notably, Congress has acted on the ARMM elections by postponing the
scheduled August 2011 elections and setting another date May 13,
2011 for regional elections synchronized with the presidential,
congressional and other local elections. By so doing, Congress itself has
made a policy decision in the exercise of its legislative wisdom that it
shall not call special elections as an adjustment measure in
synchronizing the ARMM elections with the other elections.
After Congress has so acted, neither the Executive nor the Judiciary can
act to the contrary by ordering special elections instead at the call of the
COMELEC. This Court, particularly, cannot make this call without thereby
supplanting the legislative decision and effectively legislating. To be sure,
the Court is not without the power to declare an act of Congress null and
void for being unconstitutional or for having been exercised in grave
abuse of discretion.64 But our power rests on very narrow ground and is
merely to annul a contravening act of Congress; it is not to supplant the
decision of Congress nor to mandate what Congress itself should have
done in the exercise of its legislative powers. Thus, contrary to what the
petition in G.R. No. 197282 urges, we cannot compel COMELEC to call
for special elections.
Furthermore, we have to bear in mind that the constitutional power of the
COMELEC, in contrast with the power of Congress to call for, and to set
the date of, elections, is limited to enforcing and administering all laws
and regulations relative to the conduct of an election.65 Statutorily,
COMELEC has no power to call for the holding of special elections
unless pursuant to a specific statutory grant. True, Congress did grant,
via Sections 5 and 6 of BP 881, COMELEC with the power to postpone
elections to another date. However, this power is limited to, and can only
be exercised within, the specific terms and circumstances provided for in
the law. We quote:
Section 5. Postponement of election. - When for any serious cause such
as violence, terrorism, loss or destruction of election paraphernalia or
records, force majeure, and other analogous causes of such a nature that
the holding of a free, orderly and honest election should become
impossible in any political subdivision, the Commission, motu proprio or
upon a verified petition by any interested party, and after due notice and
hearing, whereby all interested parties are afforded equal opportunity to
be heard, shall postpone the election therein to a date which should be
reasonably close to the date of the election not held, suspended or which

A close reading of Section 5 of BP 881 reveals that it is meant to address

instances where elections have already been scheduled to take place but
have to be postponed because of (a) violence, (b) terrorism, (c) loss or
destruction of election paraphernalia or records, (d) force majeure, and
(e) other analogous causes of such a nature that the holding of a free,
orderly and honest election should become impossible in any political
subdivision. Under the principle of ejusdem generis, the term "analogous
causes" will be restricted to those unforeseen or unexpected events that
prevent the holding of the scheduled elections. These "analogous
causes" are further defined by the phrase "of such nature that the holding
of a free, orderly and honest election should become impossible."
Similarly, Section 6 of BP 881 applies only to those situations where
elections have already been scheduled but do not take place because of
(a) force majeure, (b) violence, (c) terrorism, (d) fraud, or (e) other
analogous causes the election in any polling place has not been held on
the date fixed, or had been suspendedbefore the hour fixed by law for the
closing of the voting, or after the voting and during the preparation and
the transmission of the election returns or in the custody or canvass
thereof, such election results in a failure to elect. As in Section 5 of BP
881, Section 6 addresses instances where the elections do not occur or
had to be suspended because
of unexpected and unforeseen circumstances.
In the present case, the postponement of the ARMM elections is by law
i.e., by congressional policy and is pursuant to the constitutional
mandate of synchronization of national and local elections. By no stretch
of the imagination can these reasons be given the same character as the
circumstances contemplated by Section 5 or Section 6 of BP 881, which
all pertain to extralegal causes that obstruct the holding of elections.
Courts, to be sure, cannot enlarge the scope of a statute under the guise
of interpretation, nor include situations not provided nor intended by the
lawmakers.66 Clearly, neither Section 5 nor Section 6 of BP 881 can
apply to the present case and this Court has absolutely no legal basis to
compel the COMELEC to hold special elections.
D. The Court has no power to shorten the terms of elective officials
Even assuming that it is legally permissible for the Court to compel the
COMELEC to hold special elections, no legal basis likewise exists to rule
that the newly elected ARMM officials shall hold office only until the
ARMM officials elected in the synchronized elections shall have assumed
office.
In the first place, the Court is not empowered to adjust the terms of
elective officials. Based on the Constitution, the power to fix the term of
office of elective officials, which can be exercised only in the case of
barangay officials,67 is specifically given to Congress. Even Congress

itself may be denied such power, as shown when the Constitution

shortened the terms of twelve Senators obtaining the least votes,68 and
extended the terms of the President and the Vice-President69 in order to
synchronize elections; Congress was not granted this same power. The
settled rule is that terms fixed by the Constitution cannot be changed by
mere statute.70 More particularly, not even Congress and certainly not
this Court, has the authority to fix the terms of elective local officials in the
ARMM for less, or more, than the constitutionally mandated three
years71 as this tinkering would directly contravene Section 8, Article X of
the Constitution as we ruled in Osmena.

Third, those whom the President may be authorized by law to appoint;

and

Thus, in the same way that the term of elective ARMM officials cannot be
extended through a holdover, the term cannot be shortened by putting an
expiration date earlier than the three (3) years that the Constitution itself
commands. This is what will happen a term of less than two years if a
call for special elections shall prevail. In sum, while synchronization is
achieved, the result is at the cost of a violation of an express provision of
the Constitution.

If at all, the gravest challenge posed by the petitions to the authority to

appoint OICs under Section 3 of RA No. 10153 is the assertion that the
Constitution requires that the ARMM executive and legislative officials to
be "elective and representative of the constituent political units." This
requirement indeed is an express limitation whose non-observance in the
assailed law leaves the appointment of OICs constitutionally defective.

Neither we nor Congress can opt to shorten the tenure of those officials
to be elected in the ARMM elections instead of acting on their term
(where the "term" means the time during which the officer may claim to
hold office as of right and fixes the interval after which the several
incumbents shall succeed one another, while the "tenure" represents the
term during which the incumbent actually holds the office).72 As with the
fixing of the elective term, neither Congress nor the Court has any legal
basis to shorten the tenure of elective ARMM officials. They would
commit an unconstitutional act and gravely abuse their discretion if they
do so.
E. The Presidents Power to Appoint OICs
The above considerations leave only Congress chosen interim measure
RA No. 10153 and the appointment by the President of OICs to govern
the ARMM during the pre-synchronization period pursuant to Sections 3,
4 and 5 of this law as the only measure that Congress can make. This
choice itself, however, should be examined for any attendant
constitutional infirmity.
At the outset, the power to appoint is essentially executive in nature, and
the limitations on or qualifications to the exercise of this power should be
strictly construed; these limitations or qualifications must be clearly stated
in order to be recognized.73 The appointing power is embodied in
Section 16, Article VII of the Constitution, which states:
Section 16. The President shall nominate and, with the consent of the
Commission on Appointments, appoint the heads of the executive
departments, ambassadors, other public ministers and consuls or officers
of the armed forces from the rank of colonel or naval captain, and other
officers whose appointments are vested in him in this Constitution. He
shall also appoint all other officers of the Government whose
appointments are not otherwise provided for by law, and those whom he
may be authorized by law to appoint. The Congress may, by law, vest the
appointment of other officers lower in rank in the President alone, in the
courts, or in the heads of departments, agencies, commissions, or
boards. [emphasis ours]
This provision classifies into four groups the officers that the President
can appoint. These are:
First, the heads of the executive departments; ambassadors; other public
ministers and consuls; officers of the Armed Forces of the Philippines,
from the rank of colonel or naval captain; and other officers whose
appointments are vested in the President in this Constitution;
Second, all other officers of the government whose appointments are not
otherwise provided for by law;

Fourth, officers lower in rank whose appointments the Congress may by

law vest in the President alone.74
Since the Presidents authority to appoint OICs emanates from RA No.
10153, it falls under the third group of officials that the President can
appoint pursuant to Section 16, Article VII of the Constitution. Thus, the
assailed law facially rests on clear constitutional basis.

After fully examining the issue, we hold that this alleged constitutional
problem is more apparent than real and becomes very real only if RA No.
10153 were to be mistakenly read as a law that changes the elective and
representative character of ARMM positions. RA No. 10153, however,
does not in any way amend what the organic law of the ARMM (RA No.
9054) sets outs in terms of structure of governance. What RA No. 10153
in fact only does is to "appoint officers-in-charge for the Office of the
Regional Governor, Regional Vice Governor and Members of the
Regional Legislative Assembly who shall perform the functions pertaining
to the said offices until the officials duly elected in the May 2013 elections
shall have qualified and assumed office." This power is far different from
appointing elective ARMM officials for the abbreviated term ending on the
assumption to office of the officials elected in the May 2013 elections.
As we have already established in our discussion of the supermajority
and plebiscite requirements, the legal reality is that RA No. 10153 did not
amend RA No. 9054. RA No. 10153, in fact, provides only for
synchronization of elections and for the interim measures that must in the
meanwhile prevail. And this is how RA No. 10153 should be read in the
manner it was written and based on its unambiguous facial
terms.75 Aside from its order for synchronization, it is purely and simply
an interim measure responding to the adjustments that the
synchronization requires.
Thus, the appropriate question to ask is whether the interim measure is
an unreasonable move for Congress to adopt, given the legal situation
that the synchronization unavoidably brought with it. In more concrete
terms and based on the above considerations, given the plain
unconstitutionality of providing for a holdover and the unavailability of
constitutional possibilities for lengthening or shortening the term of the
elected ARMM officials, is the choice of the Presidents power to appoint
for a fixed and specific period as an interim measure, and as allowed
under Section 16, Article VII of the Constitution an unconstitutional or
unreasonable choice for Congress to make?
Admittedly, the grant of the power to the President under other situations
or where the power of appointment would extend beyond the adjustment
period for synchronization would be to foster a government that is not
"democratic and republican." For then, the peoples right to choose the
leaders to govern them may be said to be systemically withdrawn to the
point of fostering an undemocratic regime. This is the grant that would
frontally breach the "elective and representative" governance requirement
of Section 18, Article X of the Constitution.
But this conclusion would not be true under the very limited
circumstances contemplated in RA No. 10153 where the period is fixed
and, more importantly, the terms of governance both under Section 18,
Article X of the Constitution and RA No. 9054 will not systemically be
touched nor affected at all. To repeat what has previously been said, RA
No. 9054 will govern unchanged and continuously, with full effect in

accordance with the Constitution, save only for the interim and temporary
measures that synchronization of elections requires.
Viewed from another perspective, synchronization will temporarily disrupt
the election process in a local community, the ARMM, as well as the
communitys choice of leaders, but this will take place under a situation of
necessity and as an interim measure in the manner that interim measures
have been adopted and used in the creation of local government
units76 and the adjustments of sub-provinces to the status of
provinces.77 These measures, too, are used in light of the wider national
demand for the synchronization of elections (considered vis--vis the
regional interests involved). The adoption of these measures, in other
words, is no different from the exercise by Congress of the inherent
police power of the State, where one of the essential tests is the
reasonableness of the interim measure taken in light of the given
circumstances.
Furthermore, the "representative" character of the chosen leaders need
not necessarily be affected by the appointment of OICs as this
requirement is really a function of the appointment process; only the
"elective" aspect shall be supplanted by the appointment of OICs. In this
regard, RA No. 10153 significantly seeks to address concerns arising
from the appointments by providing, under Sections 3, 4 and 5 of the
assailed law, concrete terms in the Appointment of OIC, the Manner and
Procedure of Appointing OICs, and their Qualifications.
Based on these considerations, we hold that RA No. 10153 viewed in
its proper context is a law that is not violative of the Constitution
(specifically, its autonomy provisions), and one that is reasonable as well
under the circumstances.
VI. Other Constitutional Concerns
Outside of the above concerns, it has been argued during the oral
arguments that upholding the constitutionality of RA No. 10153 would set
a dangerous precedent of giving the President the power to cancel
elections anywhere in the country, thus allowing him to replace elective
officials with OICs.
This claim apparently misunderstands that an across-the-board
cancellation of elections is a matter for Congress, not for the President, to
address. It is a power that falls within the powers of Congress in the
exercise of its legislative powers. Even Congress, as discussed above, is
limited in what it can legislatively undertake with respect to elections.
If RA No. 10153 cancelled the regular August 2011 elections, it was for a
very specific and limited purpose the synchronization of elections. It
was a temporary means to a lasting end the synchronization of
elections. Thus, RA No. 10153 and the support that the Court gives this
legislation are likewise clear and specific, and cannot be transferred or
applied to any other cause for the cancellation of elections. Any other
localized cancellation of elections and call for special elections can occur
only in accordance with the power already delegated by Congress to the
COMELEC, as above discussed.
Given that the incumbent ARMM elective officials cannot continue to act
in a holdover capacity upon the expiration of their terms, and this Court
cannot compel the COMELEC to conduct special elections, the Court
now has to deal with the dilemma of a vacuum in governance in the
ARMM.
To emphasize the dire situation a vacuum brings, it should not be
forgotten that a period of 21 months or close to 2 years intervenes
from the time that the incumbent ARMM elective officials terms expired
and the time the new ARMM elective officials begin their terms in 2013.
As the lessons of our Mindanao history past and current teach us,
many developments, some of them critical and adverse, can transpire in
the countrys Muslim areas in this span of time in the way they transpired

in the past.78 Thus, it would be reckless to assume that the presence of

an acting ARMM Governor, an acting Vice-Governor and a fully
functioning Regional Legislative Assembly can be done away with even
temporarily. To our mind, the appointment of OICs under the present
circumstances is an absolute necessity.
Significantly, the grant to the President of the power to appoint OICs to
undertake the functions of the elective members of the Regional
Legislative Assembly is neither novel nor innovative. We hark back to our
earlier pronouncement in Menzon v. Petilla, etc., et al.:79
It may be noted that under Commonwealth Act No. 588 and the Revised
Administrative Code of 1987, the President is empowered to make
temporary appointments in certain public offices, in case of any vacancy
that may occur. Albeit both laws deal only with the filling of vacancies in
appointive positions. However, in the absence of any contrary provision in
the Local Government Code and in the best interest of public service, we
see no cogent reason why the procedure thus outlined by the two laws
may not be similarly applied in the present case. The respondents
contend that the provincial board is the correct appointing power. This
argument has no merit. As between the President who has supervision
over local governments as provided by law and the members of the board
who are junior to the vice-governor, we have no problem ruling in favor of
the President, until the law provides otherwise.
A vacancy creates an anomalous situation and finds no approbation
under the law for it deprives the constituents of their right of
representation and governance in their own local government.
In a republican form of government, the majority rules through their
chosen few, and if one of them is incapacitated or absent, etc., the
management of governmental affairs is, to that extent, may be hampered.
Necessarily, there will be a consequent delay in the delivery of basic
services to the people of Leyte if the Governor or the Vice-Governor is
missing.80 (Emphasis ours.)
As in Menzon, leaving the positions of ARMM Governor, Vice Governor,
and members of the Regional Legislative Assembly vacant for 21
months, or almost 2 years, would clearly cause disruptions and delays in
the delivery of basic services to the people, in the proper management of
the affairs of the regional government, and in responding to critical
developments that may arise. When viewed in this context, allowing the
President in the exercise of his constitutionally-recognized appointment
power to appoint OICs is, in our judgment, a reasonable measure to take.
B. Autonomy in the ARMM
It is further argued that while synchronization may be constitutionally
mandated, it cannot be used to defeat or to impede the autonomy that the
Constitution granted to the ARMM. Phrased in this manner, one would
presume that there exists a conflict between two recognized
Constitutional mandates synchronization and regional autonomy such
that it is necessary to choose one over the other.
We find this to be an erroneous approach that violates a basic principle in
constitutional construction ut magis valeat quam pereat: that the
Constitution is to be interpreted as a whole,81 and one mandate should
not be given importance over the other except where the primacy of one
over the other is clear.82 We refer to the Courts declaration in AngAngco v. Castillo, et al.,83 thus:
A provision of the constitution should not be construed in isolation from
the rest. Rather, the constitution must be interpreted as a whole, and
apparently, conflicting provisions should be reconciled and harmonized in
a manner that may give to all of them full force and effect. [Emphasis
supplied.]

Synchronization is an interest that is as constitutionally entrenched as

regional autonomy. They are interests that this Court should reconcile
and give effect to, in the way that Congress did in RA No. 10153 which
provides the measure to transit to synchronized regional elections with
the least disturbance on the interests that must be respected. Particularly,
regional autonomy will be respected instead of being sidelined, as the law
does not in any way alter, change or modify its governing features,
except in a very temporary manner and only as necessitated by the
attendant circumstances.
Elsewhere, it has also been argued that the ARMM elections should not
be synchronized with the national and local elections in order to maintain
the autonomy of the ARMM and insulate its own electoral processes from
the rough and tumble of nationwide and local elections. This argument
leaves us far from convinced of its merits.
As heretofore mentioned and discussed, while autonomous regions are
granted political autonomy, the framers of the Constitution never equated
autonomy with independence. The ARMM as a regional entity thus
continues to operate within the larger framework of the State and is still
subject to the national policies set by the national government, save only
for those specific areas reserved by the Constitution for regional
autonomous determination. As reflected during the constitutional
deliberations of the provisions on autonomous regions:
Mr. Bennagen. xxx We do not see here a complete separation from the
central government, but rather an efficient working relationship between
the autonomous region and the central government. We see this as an
effective partnership, not a separation.
Mr. Romulo. Therefore, complete autonomy is not really thought of as
complete independence.
Mr. Ople. We define it as a measure of self-government within the larger
political framework of the nation.84[Emphasis supplied.]
This exchange of course is fully and expressly reflected in the abovequoted Section 17, Article X of the Constitution, and by the express
reservation under Section 1 of the same Article that autonomy shall be
"within the framework of this Constitution and the national sovereignty as
well as the territorial integrity of the Republic of the Philippines."
Interestingly, the framers of the Constitution initially proposed to remove
Section 17 of Article X, believing it to be unnecessary in light of the
enumeration of powers granted to autonomous regions in Section 20,
Article X of the Constitution. Upon further reflection, the framers decided
to reinstate the provision in order to "make it clear, once and for all, that
these are the limits of the powers of the autonomous government. Those
not enumerated are actually to be exercised by the national
government[.]"85 Of note is the Courts pronouncement in Pimentel, Jr. v.
Hon. Aguirre86 which we quote:
Under the Philippine concept of local autonomy, the national government
has not completely relinquished all its powers over local governments,
including autonomous regions. Only administrative powers over local
affairs are delegated to political subdivisions. The purpose of the
delegation is to make governance more directly responsive and effective
at the local levels. In turn, economic, political and social development at
the smaller political units are expected to propel social and economic
growth and development. But to enable the country to develop as a
whole, the programs and policies effected locally must be integrated and
coordinated towards a common national goal. Thus, policy-setting for the
entire country still lies in the President and Congress. [Emphasis ours.]
In other words, the autonomy granted to the ARMM cannot be invoked to
defeat national policies and concerns. Since the synchronization of
elections is not just a regional concern but a national one, the ARMM is
subject to it; the regional autonomy granted to the ARMM cannot be used

to exempt the region from having to act in accordance with a national

policy mandated by no less than the Constitution.
Conclusion
Congress acted within its powers and pursuant to a constitutional
mandate the synchronization of national and local elections when it
enacted RA No. 10153. This Court cannot question the manner by which
Congress undertook this task; the Judiciary does not and cannot pass
upon questions of wisdom, justice or expediency of legislation.87 As
judges, we can only interpret and apply the law and, despite our doubts
about its wisdom, cannot repeal or amend it.88
Nor can the Court presume to dictate the means by which Congress
should address what is essentially a legislative problem. It is not within
the Courts power to enlarge or abridge laws; otherwise, the Court will be
guilty of usurping the exclusive prerogative of Congress.89 The
petitioners, in asking this Court to compel COMELEC to hold special
elections despite its lack of authority to do so, are essentially asking us to
venture into the realm of judicial legislation, which is abhorrent to one of
the most basic principles of a republican and democratic government
the separation of powers.
The petitioners allege, too, that we should act because Congress acted
with grave abuse of discretion in enacting RA No. 10153. Grave abuse of
discretion is such capricious and whimsical exercise of judgment that is
patent and gross as to amount to an evasion of a positive duty or to a
virtual refusal to perform a duty enjoined by law or to act at all in
contemplation of the law as where the power is exercised in an arbitrary
and despotic manner by reason of passion and hostility.90
We find that Congress, in passing RA No. 10153, acted strictly within its
constitutional mandate. Given an array of choices, it acted within due
constitutional bounds and with marked reasonableness in light of the
necessary adjustments that synchronization demands. Congress,
therefore, cannot be accused of any evasion of a positive duty or of a
refusal to perform its duty. We thus find no reason to accord merit to the
petitioners claims of grave abuse of discretion.
On the general claim that RA No. 10153 is unconstitutional, we can only
reiterate the established rule that every statute is presumed
valid.91 Congress, thus, has in its favor the presumption of
constitutionality of its acts, and the party challenging the validity of a
statute has the onerous task of rebutting this presumption.92 Any
reasonable doubt about the validity of the law should be resolved in favor
of its constitutionality.93 As this Court declared inGarcia v. Executive
Secretary:94
The policy of the courts is to avoid ruling on constitutional questions and
to presume that the acts of the political departments are valid in the
absence of a clear and unmistakable showing to the contrary. To doubt is
to sustain. This presumption is based on the doctrine of separation of
powers which enjoins upon each department a becoming respect for the
acts of the other departments. The theory is that as the joint act of
Congress and the President of the Philippines, a law has been carefully
studied and determined to be in accordance with the fundamental law
before it was finally enacted.95 [Emphasis ours.]
Given the failure of the petitioners to rebut the presumption of
constitutionality in favor of RA No. 10153, we must support and confirm
its validity.
WHEREFORE, premises considered, we DISMISS the consolidated
petitions assailing the validity of RA No. 10153 for lack of merit, and
UPHOLD the constitutionality of this law. We likewise LIFT the temporary
restraining order we issued in our Resolution of September 13, 2011. No
costs. SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

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

EN BANC

LOUIS "BAROK" C. BIRAOGO, Petitioner,

vs.
THE COMMISSION ON ELECTIONS and EXECUTIVE SECRETARY
PAQUITO N. OCHOA, JR., Respondents.

G.R. No. 196271

February 28, 2012

DATU MICHAEL ABAS KIDA, in his personal capacity, and in

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

G.R. No. 197392

x-----------------------x
G.R. No. 197454
JACINTO V. PARAS, Petitioner,
vs.
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., and THE
COMMISSION ON ELECTIONS, Respondents.
MINORITY RIGHTS FORUM, PHILIPPINES, INC., RespondentsIntervenor.
RESOLUTION

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

BRION, J.:

G.R. No. 196305

We resolve: (a) the motion for reconsideration filed by petitioners Datu

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

BASARI D. MAPUPUNO, Petitioner,

vs.
SIXTO BRILLANTES, in his capacity as Chairman of the Commission on
Elections, FLORENCIO ABAD, JR. in his capacity as Secretary of the
Department of Budget and Management, PAQUITO OCHOA, JR., in his
capacity as Executive Secretary, JUAN PONCE ENRILE, in his capacity
as Senate President, and FELICIANO BELMONTE, in his capacity as
Speaker of the House of Representatives, Respondents.
x-----------------------x
G.R. No. 197221
REP. EDCEL C. LAGMAN, Petitioner,
vs.
PAQUITO N. OCHOA, JR., in his capacity as the Executive Secretary,
and the COMMISSION ON ELECTIONS, Respondents.
x-----------------------x

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

G.R. No. 197280

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

The petitioners in G.R. No. 196271 raise the following grounds in support
of their motion:
I. THE HONORABLE COURT ERRED IN CONCLUDING THAT THE
ARMM ELECTIONS ARE LOCAL ELECTIONS, CONSIDERING THAT
THE CONSTITUTION GIVES THE ARMM A SPECIAL STATUS AND IS
SEPARATE AND DISTINCT FROM ORDINARY LOCAL GOVERNMENT
UNITS.
II. R.A. 10153 AND R.A. 9333 AMEND THE ORGANIC ACT.

x-----------------------x
G.R. No. 197282
ATTY. ROMULO B. MACALINTAL, Petitioner,
vs.
COMMISSION ON ELECTIONS and THE OFFICE OF THE
PRESIDENT, through EXECUTIVE SECRETARY PAQUITO N. OCHOA,
JR., Respondents.

III. THE SUPERMAJORITY PROVISIONS OF THE ORGANIC ACT (R.A.

9054) ARE NOT IRREPEALABLE LAWS.
IV. SECTION 3, ARTICLE XVII OF R.A. 9054 DOES NOT VIOLATE
SECTION 18, ARTICLE X OF THE CONSTITUTION.
V. BALANCE OF INTERESTS TILT IN FAVOR OF THE DEMOCRATIC
PRINCIPLE[.]1

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

xxxx

I. THE ELECTIVE REGIONAL EXECUTIVE AND LEGISLATIVE

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

II. THE HONORABLE COURT SHOULD HAVE CONSIDERED THAT RA

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

II. THE UNMISTAKABLE AND UNEQUIVOCAL CONSTITUTIONAL

MANDATE FOR AN ELECTIVE AND REPRESENTATIVE EXECUTIVE
DEPARTMENT AND LEGISLATIVE ASSEMBLY IN ARMM
INDUBITABLY PRECLUDES THE APPOINTMENT BY THE PRESIDENT
OF OFFICERS-IN-CHARGE (OICs), ALBEIT MOMENTARY OR
TEMPORARY, FOR THE POSITIONS OF ARMM GOVERNOR, VICE
GOVERNOR AND MEMBERS OF THE REGIONAL ASSEMBLY.
III. THE PRESIDENTS APPOINTING POWER IS LIMITED TO
APPOINTIVE OFFICIALS AND DOES NOT EXTEND TO ELECTIVE
OFFICIALS EVEN AS THE PRESIDENT IS ONLY VESTED WITH
SUPERVISORY POWERS OVER THE ARMM, THEREBY NEGATING
THE AWESOME POWER TO APPOINT AND REMOVE OICs
OCCUPYING ELECTIVE POSITIONS.

xxxx
III. THE HONORABLE COURT MAY HAVE COMMITTED A SERIOUS
ERROR IN DECLARING THE 2/3 VOTING REQUIREMENT SET
FORTH IN RA 9054 AS UNCONSTITUTIONAL.
xxxx
IV. THE HONORABLE COURT MAY HAVE COMMITTED A SERIOUS
ERROR IN HOLDING THAT A PLEBISCITE IS NOT NECESSARY IN
AMENDING THE ORGANIC ACT.
xxxx
V. THE HONORABLE COURT COMMITTED A SERIOUS ERROR IN
DECLARING THE HOLD-OVER OF ARMM ELECTIVE OFFICIALS
UNCONSTITUTIONAL.
xxxx

IV. THE CONSTITUTION DOES NOT PROSCRIBE THE HOLDOVER

OF ARMM ELECTED OFFICIALS PENDING THE ELECTION AND
QUALIFICATION OF THEIR SUCCESSORS.
V. THE RULING IN OSMENA DOES NOT APPLY TO ARMM ELECTED
OFFICIALS WHOSE TERMS OF OFFICE ARE NOT PROVIDED FOR
BY THE CONSTITUTION BUT PRESCRIBED BY THE ORGANIC ACTS.
VI. THE REQUIREMENT OF A SUPERMAJORITY OF VOTES IN THE
HOUSE OF REPRESENTATIVES AND THE SENATE FOR THE
VALIDITY OF A SUBSTANTIVE AMENDMENT OR REVISION OF THE
ORGANIC ACTS DOES NOT IMPOSE AN IRREPEALABLE LAW.
VII. THE REQUIREMENT OF A PLEBISCITE FOR THE EFFECTIVITY
OF A SUBSTANTIVE AMENDMENT OR REVISION OF THE ORGANIC
ACTS DOES NOT UNDULY EXPAND THE PLEBISCITE
REQUIREMENT OF THE CONSTITUTION.
VIII. SYNCHRONIZATION OF THE ARMM ELECTION WITH THE
NATIONAL AND LOCAL ELECTIONS IS NOT MANDATED BY THE
CONSTITUTION.

VI. THE HONORABLE COURT COMMITTED A SERIOUS ERROR IN

UPHOLDING THE APPOINTMENT OF OFFICERS-IN-CHARGE.3 (italics
and underscoring supplied)
The petitioner in G.R. No. 197282 contends that:
A.
ASSUMING WITHOUT CONCEDING THAT THE APPOINTMENT OF
OICs FOR THE REGIONAL GOVERNMENT OF THE ARMM IS NOT
UNCONSTITUTIONAL TO BEGIN WITH, SUCH APPOINTMENT OF
OIC REGIONAL OFFICIALS WILL CREATE A FUNDAMENTAL
CHANGE IN THE BASIC STRUCTURE OF THE REGIONAL
GOVERNMENT SUCH THAT R.A. NO. 10153 SHOULD HAVE BEEN
SUBMITTED TO A PLEBISCITE IN THE ARMM FOR APPROVAL BY
ITS PEOPLE, WHICH PLEBISCITE REQUIREMENT CANNOT BE
CIRCUMVENTED BY SIMPLY CHARACTERIZING THE PROVISIONS
OF R.A. NO. 10153 ON APPOINTMENT OF OICs AS AN "INTERIM
MEASURE".
B.

IX. THE COMELEC HAS THE AUTHORITY TO HOLD AND CONDUCT

SPECIAL ELECTIONS IN ARMM, AND THE ENACTMENT OF AN
IMPROVIDENT AND UNCONSTITUTIONAL STATUTE IS AN
ANALOGOUS CAUSE WARRANTING COMELECS HOLDING OF
SPECIAL ELECTIONS.2 (italics supplied)

THE HONORABLE COURT ERRED IN RULING THAT THE

APPOINTMENT BY THE PRESIDENT OF OICs FOR THE ARMM
REGIONAL GOVERNMENT IS NOT VIOLATIVE OF THE
CONSTITUTION.

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

C.

I. BEFORE THE COURT MAY CONSTRUE OR INTERPRET A

STATUTE, IT IS A CONDITION SINE QUA NON THAT THERE BE
DOUBT OR AMBIGUITY IN ITS LANGUAGE.

THE HOLDOVER PRINCIPLE ADOPTED IN R.A. NO. 9054 DOES NOT

VIOLATE THE CONSTITUTION, AND BEFORE THEIR SUCCESSORS
ARE ELECTED IN EITHER AN ELECTION TO BE HELD AT THE
SOONEST POSSIBLE TIME OR IN MAY 2013, THE SAID INCUMBENT
ARMM REGIONAL OFFICIALS MAY VALIDLY CONTINUE
FUNCTIONING AS SUCH IN A HOLDOVER CAPACITY IN
ACCORDANCE WITH SECTION 7, ARTICLE VII OF R.A. NO. 9054.

THE TRANSITORY PROVISIONS HOWEVER ARE CLEAR AND

UNAMBIGUOUS: THEY REFER TO THE 1992 ELECTIONS AND TURNOVER OF ELECTIVE OFFICIALS.
IN THUS RECOGNIZING A SUPPOSED "INTENT" OF THE FRAMERS,
AND APPLYING THE SAME TO ELECTIONS 20 YEARS AFTER, THE
HONORABLE SUPREME COURT MAY HAVE
VIOLATED THEFOREMOST RULE IN STATUTORY CONSTRUCTION.

D.
WITH THE CANCELLATION OF THE AUGUST 2011 ARMM
ELECTIONS, SPECIAL ELECTIONS MUST IMMEDIATELY BE HELD
FOR THE ELECTIVE REGIONAL OFFICIALS OF THE ARMM WHO

SHALL SERVE UNTIL THEIR SUCCESSORS ARE ELECTED IN THE

MAY 2013 SYNCHRONIZED ELECTIONS.4

Section 2. The Senators, Members of the House of Representatives, and

the local officials first elected under this Constitution shall serve until
noon of June 30, 1992.

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

a) the Constitutional mandate of synchronization does not apply to the
ARMM elections;
b) RA No. 10153 negates the basic principle of republican democracy
which, by constitutional mandate, guides the governance of the Republic;
c) RA No. 10153 amends the Organic Act (RA No. 9054) and, thus, has
to comply with the 2/3 vote from the House of Representatives and the
Senate, voting separately, and be ratified in a plebiscite;
d) if the choice is between elective officials continuing to hold their offices
even after their terms are over and non-elective individuals getting into
the vacant elective positions by appointment as OICs, the holdover option
is the better choice;
e) the President only has the power of supervision over autonomous
regions, which does not include the power to appoint OICs to take the
place of ARMM elective officials; and
f) it would be better to hold the ARMM elections separately from the
national and local elections as this will make it easier for the authorities to
implement election laws.

Of the Senators elected in the elections in 1992, the first twelve obtaining
the highest number of votes shall serve for six years and the remaining
twelve for three years.
xxxx
Section 5. The six-year term of the incumbent President and VicePresident elected in the February 7, 1986 election is, for purposes of
synchronization of elections, hereby extended to noon of June 30, 1992.
The first regular elections for the President and Vice-President under this
Constitution shall be held on the second Monday of May, 1992.
To fully appreciate the constitutional intent behind these provisions, we
refer to the discussions of the Constitutional Commission:
MR. MAAMBONG. For purposes of identification, I will now read a section
which we will temporarily indicate as Section 14. It reads: "THE
SENATORS, MEMBERS OF THE HOUSE OF REPRESENTATIVES
AND THE LOCAL OFFICIALS ELECTED IN THE FIRST ELECTION
SHALL SERVE FOR FIVE YEARS, TO EXPIRE AT NOON OF JUNE
1992."

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

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

Commissioner Davide be recognized.

(a) Does the Constitution mandate the synchronization of ARMM regional

elections with national and local elections?

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

recognized.

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

MR. DAVIDE. Before going to the proposed amendment, I would only

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

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

(d) Does the COMELEC have the power to call for special elections in
ARMM?
(e) Does granting the President the power to appoint OICs violate the
elective and representative nature of ARMM regional legislative and
executive offices?
(f) Does the appointment power granted to the President exceed the
Presidents supervisory powers over autonomous regions?
The Courts Ruling
We deny the motions for lack of merit.
Synchronization mandate includes ARMM elections
The Court was unanimous in holding that the Constitution mandates the
synchronization of national and local elections. While the Constitution
does not expressly instruct Congress to synchronize the national and
local elections, the intention can be inferred from the following provisions
of the Transitory Provisions (Article XVIII) of the Constitution, which state:
Section 1. The first elections of Members of the Congress under this
Constitution shall be held on the second Monday of May, 1987.
The first local elections shall be held on a date to be determined by the
President, which may be simultaneous with the election of the Members
of the Congress. It shall include the election of all Members of the city or
municipal councils in the Metropolitan Manila area.

I proposed this because of the proposed section of the Article on

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

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

say?
MR. DE CASTRO. Mr. Presiding Officer.
THE PRESIDING OFFICER (Mr. Rodrigo). Commissioner de Castro is
recognized.
MR. DE CASTRO. Thank you.
During the discussion on the legislative and the synchronization of
elections, I was the one who proposed that in order to synchronize the
elections every three years, which the body approved the first national
and local officials to be elected in 1987 shall continue in office for five
years, the same thing the Honorable Davide is now proposing. That
means they will all serve until 1992, assuming that the term of the
President will be for six years and continue beginning in 1986. So from
1992, we will again have national, local and presidential elections. This
time, in 1992, the President shall have a term until 1998 and the first 12
Senators will serve until 1998, while the next 12 shall serve until 1995,
and then the local officials elected in 1992 will serve until 1995. From
then on, we shall have an election every three years.
So, I will say that the proposition of Commissioner Davide is in order, if
we have to synchronize our elections every three years which was
already approved by the body.
Thank you, Mr. Presiding Officer.
xxxx
MR. GUINGONA. What will be synchronized, therefore, is the election of
the incumbent President and Vice-President in 1992.
MR. DAVIDE. Yes.
MR. GUINGONA. Not the reverse. Will the committee not synchronize the
election of the Senators and local officials with the election of the
President?
MR. DAVIDE. It works both ways, Mr. Presiding Officer. The attempt here
is on the assumption that the provision of the Transitory Provisions on the
term of the incumbent President and Vice-President would really end in
1992.
MR. GUINGONA. Yes.
MR. DAVIDE. In other words, there will be a single election in 1992 for
all, from the President up to the municipal officials.5 (emphases and
underscoring ours)
The framers of the Constitution could not have expressed their objective
more clearly there was to be a single election in 1992 for all elective
officials from the President down to the municipal officials. Significantly,
the framers were even willing to temporarily lengthen or shorten the
terms of elective officials in order to meet this objective, highlighting the
importance of this constitutional mandate.
We came to the same conclusion in Osmea v. Commission on
Elections,6 where we unequivocally stated that "the Constitution has
mandated synchronized national and local elections."7 Despite the length
and verbosity of their motions, the petitioners have failed to convince us
to deviate from this established ruling.
Neither do we find any merit in the petitioners contention that the ARMM
elections are not covered by the constitutional mandate of
synchronization because the ARMM elections were not specifically
mentioned in the above-quoted Transitory Provisions of the Constitution.

That the ARMM elections were not expressly mentioned in the Transitory
Provisions of the Constitution on synchronization cannot be interpreted to
mean that the ARMM elections are not covered by the constitutional
mandate of synchronization. We have to consider that the ARMM, as we
now know it, had not yet been officially organized at the time the
Constitution was enacted and ratified by the people. Keeping in mind that
a constitution is not intended to provide merely for the exigencies of a few
years but is to endure through generations for as long as it remains
unaltered by the people as ultimate sovereign, a constitution should be
construed in the light of what actually is a continuing instrument to govern
not only the present but also the unfolding events of the indefinite future.
Although the principles embodied in a constitution remain fixed and
unchanged from the time of its adoption, a constitution must be construed
as a dynamic process intended to stand for a great length of time, to be
progressive and not static.8
To reiterate, Article X of the Constitution, entitled "Local Government,"
clearly shows the intention of the Constitution to classify autonomous
regions, such as the ARMM, as local governments. We refer to Section 1
of this Article, which provides:
Section 1. The territorial and political subdivisions of the Republic of the
Philippines are the provinces, cities, municipalities, and barangays. There
shall be autonomous regions in Muslim Mindanao and the Cordilleras as
hereinafter provided.
The inclusion of autonomous regions in the enumeration of political
subdivisions of the State under the heading "Local Government" indicates
quite clearly the constitutional intent to consider autonomous regions as
one of the forms of local governments.
That the Constitution mentions only the "national government" and the
"local governments," and does not make a distinction between the "local
government" and the "regional government," is particularly revealing,
betraying as it does the intention of the framers of the Constitution to
consider the autonomous regions not as separate forms of government,
but as political units which, while having more powers and attributes than
other local government units, still remain under the category of local
governments. Since autonomous regions are classified as local
governments, it follows that elections held in autonomous regions are
also considered as local elections.
The petitioners further argue that even assuming that the Constitution
mandates the synchronization of elections, the ARMM elections are not
covered by this mandate since they are regional elections and not local
elections.
In construing provisions of the Constitution, the first rule is verba legis,
"that is, wherever possible, the words used in the Constitution must be
given their ordinary meaning except where technical terms are
employed."9 Applying this principle to determine the scope of "local
elections," we refer to the meaning of the word "local," as understood in
its ordinary sense. As defined in Websters Third New International
Dictionary Unabridged, "local" refers to something "that primarily serves
the needs of a particular limited district, often a community or minor
political subdivision." Obviously, the ARMM elections, which are held
within the confines of the autonomous region of Muslim Mindanao, fall
within this definition.
To be sure, the fact that the ARMM possesses more powers than other
provinces, cities, or municipalities is not enough reason to treat the
ARMM regional elections differently from the other local elections. Ubi lex
non distinguit nec nos distinguire debemus. When the law does not
distinguish, we must not distinguish.10
RA No. 10153 does not amend RA No. 9054

The petitioners are adamant that the provisions of RA No. 10153, in

postponing the ARMM elections, amend RA No. 9054.

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

We cannot agree with their position.

Supermajority vote requirement makes RA No. 9054 an irrepealable law
A thorough reading of RA No. 9054 reveals that it fixes the schedule for
only the first ARMM elections;11 it does not provide the date for the
succeeding regular ARMM elections. In providing for the date of the
regular ARMM elections, RA No. 9333 and RA No. 10153 clearly do not
amend RA No. 9054 since these laws do not change or revise any
provision in RA No. 9054. In fixing the date of the ARMM elections
subsequent to the first election, RA No. 9333 and RA No. 10153 merely
filled the gap left in RA No. 9054.
We reiterate our previous observations:
This view that Congress thought it best to leave the determination of
the date of succeeding ARMM elections to legislative discretion finds
support in ARMMs recent history.
To recall, RA No. 10153 is not the first law passed that rescheduled the
ARMM elections. The First Organic Act RA No. 6734 not only did not
fix the date of the subsequent elections; it did not even fix the specific
date of the first ARMM elections, leaving the date to be fixed in another
legislative enactment. Consequently, RA No. 7647, RA No. 8176, RA No.
8746, RA No. 8753, and RA No. 9012 were all enacted by Congress to fix
the dates of the ARMM elections. Since these laws did not change or
modify any part or provision of RA No. 6734, they were not amendments
to this latter law. Consequently, there was no need to submit them to any
plebiscite for ratification.
The Second Organic Act RA No. 9054 which lapsed into law on
March 31, 2001, provided that the first elections would be held on the
second Monday of September 2001. Thereafter, Congress passed RA
No. 9140 to reset the date of the ARMM elections. Significantly, while RA
No. 9140 also scheduled the plebiscite for the ratification of the Second
Organic Act (RA No. 9054), the new date of the ARMM regional elections
fixed in RA No. 9140 was not among the provisions ratified in the
plebiscite held to approve RA No. 9054. Thereafter, Congress passed RA
No. 9333, which further reset the date of the ARMM regional elections.
Again, this law was not ratified through a plebiscite.
From these legislative actions, we see the clear intention of Congress to
treat the laws which fix the date of the subsequent ARMM elections as
separate and distinct from the Organic Acts. Congress only acted
consistently with this intent when it passed RA No. 10153 without
requiring compliance with the amendment prerequisites embodied in
Section 1 and Section 3, Article XVII of RA No. 9054.12 (emphases
supplied)

Even assuming that RA No. 10153 amends RA No. 9054, however, we

have already established that the supermajority vote requirement set
forth in Section 1, Article XVII of RA No. 905415 is unconstitutional for
violating the principle that Congress cannot pass irrepealable laws.
The power of the legislature to make laws includes the power to amend
and repeal these laws. Where the legislature, by its own act, attempts to
limit its power to amend or repeal laws, the Court has the duty to strike
down such act for interfering with the plenary powers of Congress. As we
explained in Duarte v. Dade:16
A state legislature has a plenary law-making power over all subjects,
whether pertaining to persons or things, within its territorial jurisdiction,
either to introduce new laws or repeal the old, unless prohibited expressly
or by implication by the federal constitution or limited or restrained by its
own. It cannot bind itself or its successors by enacting irrepealable laws
except when so restrained. Every legislative body may modify or abolish
the acts passed by itself or its predecessors. This power of repeal may be
exercised at the same session at which the original act was passed; and
even while a bill is in its progress and before it becomes a law. This
legislature cannot bind a future legislature to a particular mode of repeal.
It cannot declare in advance the intent of subsequent legislatures or the
effect of subsequent legislation upon existing statutes. [emphasis ours]
Under our Constitution, each House of Congress has the power to
approve bills by a mere majority vote, provided there is quorum.17 In
requiring all laws which amend RA No. 9054 to comply with a higher
voting requirement than the Constitution provides (2/3 vote), Congress,
which enacted RA No. 9054, clearly violated the very principle which we
sought to establish in Duarte. To reiterate, the act of one legislature is not
binding upon, and cannot tie the hands of, future legislatures.18
We also highlight an important point raised by Justice Antonio T. Carpio
in his dissenting opinion, where he stated: "Section 1, Article XVII of RA
9054 erects a high vote threshold for each House of Congress to
surmount, effectively and unconstitutionally, taking RA 9054 beyond the
reach of Congress amendatory powers. One Congress cannot limit or
reduce the plenary legislative power of succeeding Congresses by
requiring a higher vote threshold than what the Constitution requires to
enact, amend or repeal laws. No law can be passed fixing such a higher
vote threshold because Congress has no power, by ordinary legislation,
to amend the Constitution."19
Plebiscite requirement in RA No. 9054 overly broad

The petitioner in G.R. No. 196305 contends, however, that there is no

lacuna in RA No. 9054 as regards the date of the subsequent ARMM
elections. In his estimation, it can be implied from the provisions of RA
No. 9054 that the succeeding elections are to be held three years after
the date of the first ARMM regional elections.
We find this an erroneous assertion. Well-settled is the rule that the court
may not, in the guise of interpretation, enlarge the scope of a statute and
include therein situations not provided nor intended by the lawmakers. An
omission at the time of enactment, whether careless or calculated, cannot
be judicially supplied however later wisdom may recommend the
inclusion.13 Courts are not authorized to insert into the law what they
think should be in it or to supply what they think the legislature would
have supplied if its attention had been called to the omission.14 Providing
for lapses within the law falls within the exclusive domain of the
legislature, and courts, no matter how well-meaning, have no authority to
intrude into this clearly delineated space.

Similarly, we struck down the petitioners contention that the plebiscite

requirement20 applies to all amendments of RA No. 9054 for being an
unreasonable enlargement of the plebiscite requirement set forth in the
Constitution.
Section 18, Article X of the Constitution provides that "[t]he creation of the
autonomous region shall be effective when approved by majority of the
votes cast by the constituent units in a plebiscite called for the purpose[.]"
We interpreted this to mean that only amendments to, or revisions of, the
Organic Act constitutionally-essential to the creation of autonomous
regions i.e., those aspects specifically mentioned in the Constitution
which Congress must provide for in the Organic Act21 require
ratification through a plebiscite. We stand by this interpretation.
The petitioners argue that to require all amendments to RA No. 9054 to
comply with the plebiscite requirement is to recognize that sovereignty
resides primarily in the people.

While we agree with the petitioners underlying premise that sovereignty

ultimately resides with the people, we disagree that this legal reality
necessitates compliance with the plebiscite requirement for all
amendments to RA No. 9054. For if we were to go by the petitioners
interpretation of Section 18, Article X of the Constitution that all
amendments to the Organic Act have to undergo the plebiscite
requirement before becoming effective, this would lead to impractical and
illogical results hampering the ARMMs progress by impeding Congress
from enacting laws that timely address problems as they arise in the
region, as well as weighing down the ARMM government with the costs
that unavoidably follow the holding of a plebiscite.
Interestingly, the petitioner in G.R. No. 197282 posits that RA No. 10153,
in giving the President the power to appoint OICs to take the place of the
elective officials of the ARMM, creates a fundamental change in the basic
structure of the government, and thus requires compliance with the
plebiscite requirement embodied in RA No. 9054.
Again, we disagree.
The pertinent provision in this regard is Section 3 of RA No. 10153, which
reads:
Section 3. Appointment of Officers-in-Charge. The President shall
appoint officers-in-charge for the Office of the Regional Governor,
Regional Vice Governor and Members of the Regional Legislative
Assembly who shall perform the functions pertaining to the said offices
until the officials duly elected in the May 2013 elections shall have
qualified and assumed office.
We cannot see how the above-quoted provision has changed the basic
structure of the ARMM regional government. On the contrary, this
provision clearly preserves the basic structure of the ARMM regional
government when it recognizes the offices of the ARMM regional
government and directs the OICs who shall temporarily assume these
offices to "perform the functions pertaining to the said offices."

on the period within which all elective local officials can occupy their
offices. We have already established that elective ARMM officials are
also local officials; they are, thus, bound by the three-year term limit
prescribed by the Constitution. It, therefore, becomes irrelevant that the
Constitution does not expressly prohibit elective officials from acting in a
holdover capacity. Short of amending the Constitution, Congress has no
authority to extend the three-year term limit by inserting a holdover
provision in RA No. 9054. Thus, the term of three years for local officials
should stay at three (3) years, as fixed by the Constitution, and cannot be
extended by holdover by Congress.
Admittedly, we have, in the past, recognized the validity of holdover
provisions in various laws. One significant difference between the present
case and these past cases22 is that while these past cases all refer to
electivebarangay or sangguniang kabataan officials whose terms of office
are not explicitly provided for in the Constitution, the present case refers
to local elective officials - the ARMM Governor, the ARMM Vice
Governor, and the members of the Regional Legislative Assembly whose terms fall within the three-year term limit set by Section 8, Article X
of the Constitution.
Even assuming that a holdover is constitutionally permissible, and there
had been statutory basis for it (namely Section 7, Article VII of RA No.
9054), the rule of holdover can only apply as an available option where
no express or implied legislative intent to the contrary exists; it cannot
apply where such contrary intent is evident.23
Congress, in passing RA No. 10153 and removing the holdover option,
has made it clear that it wants to suppress the holdover rule expressed in
RA No. 9054. Congress, in the exercise of its plenary legislative powers,
has clearly acted within its discretion when it deleted the holdover option,
and this Court has no authority to question the wisdom of this decision,
absent any evidence of unconstitutionality or grave abuse of discretion. It
is for the legislature and the executive, and not this Court, to decide how
to fill the vacancies in the ARMM regional government which arise from
the legislature complying with the constitutional mandate of
synchronization.

Unconstitutionality of the holdover provision

COMELEC has no authority to hold special elections
The petitioners are one in defending the constitutionality of Section 7(1),
Article VII of RA No. 9054, which allows the regional officials to remain in
their positions in a holdover capacity. The petitioners essentially argue
that the ARMM regional officials should be allowed to remain in their
respective positions until the May 2013 elections since there is no
specific provision in the Constitution which prohibits regional elective
officials from performing their duties in a holdover capacity.
The pertinent provision of the Constitution is Section 8, Article X which
provides:
Section 8. The term of office of elective local officials, except barangay
officials, which shall be determined by law, shall be three years and no
such official shall serve for more than three consecutive terms.
[emphases ours]
On the other hand, Section 7(1), Article VII of RA No. 9054 provides:
Section 7. Terms of Office of Elective Regional Officials. (1) Terms of
Office. The terms of office of the Regional Governor, Regional Vice
Governor and members of the Regional Assembly shall be for a period of
three (3) years, which shall begin at noon on the 30th day of September
next following the day of the election and shall end at noon of the same
date three (3) years thereafter. The incumbent elective officials of the
autonomous region shall continue in effect until their successors are
elected and qualified.
The clear wording of Section 8, Article X of the Constitution expresses
the intent of the framers of the Constitution to categorically set a limitation

Neither do we find any merit in the contention that the Commission on

Elections (COMELEC) is sufficiently empowered to set the date of special
elections in the ARMM. To recall, the Constitution has merely empowered
the COMELEC to enforce and administer all laws and regulations relative
to the conduct of an election.24 Although the legislature, under the
Omnibus Election Code (Batas Pambansa Bilang [BP] 881), has granted
the COMELEC the power to postpone elections to another date, this
power is confined to the specific terms and circumstances provided for in
the law. Specifically, this power falls within the narrow confines of the
following provisions:
Section 5. Postponement of election. - When for any serious cause such
as violence, terrorism, loss or destruction of election paraphernalia or
records, force majeure, and other analogous causes of such a nature that
the holding of a free, orderly and honest election should become
impossible in any political subdivision, the Commission, motu proprio or
upon a verified petition by any interested party, and after due notice and
hearing, whereby all interested parties are afforded equal opportunity to
be heard, shall postpone the election therein to a date which should be
reasonably close to the date of the election not held, suspended or which
resulted in a failure to elect but not later than thirty days after the
cessation of the cause for such postponement or suspension of the
election or failure to elect.
Section 6. Failure of election. - If, on account of force
majeure, violence, terrorism, fraud, or other analogous causes the
election in any polling place has not been held on the date fixed, or had
been suspended before the hour fixed by law for the closing of the voting,

or after the voting and during the preparation and the transmission of the
election returns or in the custody or canvass thereof, such election results
in a failure to elect, and in any of such cases the failure or suspension of
election would affect the result of the election, the Commission shall, on
the basis of a verified petition by any interested party and after due notice
and hearing, call for the holding or continuation of the election not held,
suspended or which resulted in a failure to elect on a date reasonably
close to the date of the election not held, suspended or which resulted in
a failure to elect but not later than thirty days after the cessation of the
cause of such postponement or suspension of the election or failure to
elect. [emphases and underscoring ours]
As we have previously observed in our assailed decision, both Section 5
and Section 6 of BP 881 address instances where elections have already
been scheduled to take place but do not occur or had to be suspended
because of unexpected and unforeseen circumstances, such as violence,
fraud, terrorism, and other analogous circumstances.

the President alone, in the courts, or in the heads of departments.

[emphasis ours]
The main distinction between the provision in the 1987 Constitution and
its counterpart in the 1935 Constitution is the sentence construction;
while in the 1935 Constitution, the various appointments the President
can make are enumerated in a single sentence, the 1987 Constitution
enumerates the various appointments the President is empowered to
make and divides the enumeration in two sentences. The change in style
is significant; in providing for this change, the framers of the 1987
Constitution clearly sought to make a distinction between the first group
of presidential appointments and the second group of presidential
appointments, as made evident in the following exchange:
MR. FOZ. Madame President x x x I propose to put a period (.) after
"captain" and x x x delete "and all" and substitute it with HE SHALL ALSO
APPOINT ANY.

In contrast, the ARMM elections were postponed by law, in furtherance of

the constitutional mandate of synchronization of national and local
elections. Obviously, this does not fall under any of the circumstances
contemplated by Section 5 or Section 6 of BP 881.

MR. REGALADO. Madam President, the Committee accepts the

proposed amendment because it makes it clear that those other officers
mentioned therein do not have to be confirmed by the Commission on
Appointments.26

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

The first group of presidential appointments, specified as the heads of the

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

Even assuming that the COMELEC has the authority to hold special
elections, and this Court can compel the COMELEC to do so, there is still
the problem of having to shorten the terms of the newly elected officials in
order to synchronize the ARMM elections with the May 2013 national and
local elections. Obviously, neither the Court nor the COMELEC has the
authority to do this, amounting as it does to an amendment of Section 8,
Article X of the Constitution, which limits the term of local officials to three
years.
Presidents authority to appoint OICs
The petitioner in G.R. No. 197221 argues that the Presidents power to
appoint pertains only to appointive positions and cannot extend to
positions held by elective officials.
The power to appoint has traditionally been recognized as executive in
nature.25 Section 16, Article VII of the Constitution describes in broad
strokes the extent of this power, thus:
Section 16. The President shall nominate and, with the consent of the
Commission on Appointments, appoint the heads of the executive
departments, ambassadors, other public ministers and consuls, or
officers of the armed forces from the rank of colonel or naval captain, and
other officers whose appointments are vested in him in this
Constitution. He shall also appoint all other officers of the Government
whose appointments are not otherwise provided for by law, and those
whom he may be authorized by law to appoint. The Congress may, by
law, vest the appointment of other officers lower in rank in the President
alone, in the courts, or in the heads of departments, agencies,
commissions, or boards. [emphasis ours]
The 1935 Constitution contained a provision similar to the one quoted
above. Section 10(3), Article VII of the 1935 Constitution provides:
(3) The President shall nominate and with the consent of the Commission
on Appointments, shall appoint the heads of the executive departments
and bureaus, officers of the Army from the rank of colonel, of the Navy
and Air Forces from the rank of captain or commander, and all other
officers of the Government whose appointments are not herein otherwise
provided for, and those whom he may be authorized by law to appoint;
but the Congress may by law vest the appointment of inferior officers, in

The second group of officials the President can appoint are "all other
officers of the Government whose appointments are not otherwise
provided for by law, and those whom he may be authorized by law to
appoint."27The second sentence acts as the "catch-all provision" for the
Presidents appointment power, in recognition of the fact that the power
to appoint is essentially executive in nature.28 The wide latitude given to
the President to appoint is further demonstrated by the recognition of the
Presidents power to appoint officials whose appointments are not even
provided for by law. In other words, where there are offices which have to
be filled, but the law does not provide the process for filling them, the
Constitution recognizes the power of the President to fill the office by
appointment.
Any limitation on or qualification to the exercise of the Presidents
appointment power should be strictly construed and must be clearly
stated in order to be recognized.29 Given that the President derives his
power to appoint OICs in the ARMM regional government from law, it falls
under the classification of presidential appointments covered by the
second sentence of Section 16, Article VII of the Constitution; the
Presidents appointment power thus rests on clear constitutional basis.
The petitioners also jointly assert that RA No. 10153, in granting the
President the power to appoint OICs in elective positions, violates
Section 16, Article X of the Constitution,30 which merely grants the
President the power of supervision over autonomous regions.
This is an overly restrictive interpretation of the Presidents appointment
power. There is no incompatibility between the Presidents power of
supervision over local governments and autonomous regions, and the
power granted to the President, within the specific confines of RA No.
10153, to appoint OICs.
The power of supervision is defined as "the power of a superior officer to
see to it that lower officers perform their functions in accordance with
law."31 This is distinguished from the power of control or "the power of an
officer to alter or modify or set aside what a subordinate officer had done
in the performance of his duties and to substitute the judgment of the
former for the latter."32

The petitioners apprehension regarding the Presidents alleged power of

control over the OICs is rooted in their belief that the Presidents
appointment power includes the power to remove these officials at will. In
this way, the petitioners foresee that the appointed OICs will be beholden
to the President, and act as representatives of the President and not of
the people.
Section 3 of RA No. 10153 expressly contradicts the petitioners
supposition. The provision states:
Section 3. Appointment of Officers-in-Charge. The President shall
appoint officers-in-charge for the Office of the Regional Governor,
Regional Vice Governor and Members of the Regional Legislative
Assembly who shall perform the functions pertaining to the said offices
until the officials duly elected in the May 2013 elections shall have
qualified and assumed office.
The wording of the law is clear. Once the President has appointed the
OICs for the offices of the Governor, Vice Governor and members of the
Regional Legislative Assembly, these same officials will remain in office
until they are replaced by the duly elected officials in the May 2013
elections. Nothing in this provision even hints that the President has the
power to recall the appointments he already made. Clearly, the
petitioners fears in this regard are more apparent than real.

that the Constitution itself has set out for us. Moreover, the
implementation of the provisions of RA No. 10153 as an interim measure
is comparable to the interim measures traditionally practiced when, for
instance, the President appoints officials holding elective offices upon the
creation of new local government units.
The grant to the President of the power to appoint OICs in place of the
elective members of the Regional Legislative Assembly is neither novel
nor innovative. The power granted to the President, via RA No. 10153, to
appoint members of the Regional Legislative Assembly is comparable to
the power granted by BP 881 (the Omnibus Election Code) to the
President to fill any vacancy for any cause in the Regional Legislative
Assembly (then called the Sangguniang Pampook).34
Executive is not bound by the principle of judicial courtesy
The petitioners in G.R. No. 197280, in their Manifestation and Motion
dated December 21, 2011, question the propriety of the appointment by
the President of Mujiv Hataman as acting Governor and Bainon Karon as
acting Vice Governor of the ARMM. They argue that since our previous
decision was based on a close vote of 8-7, and given the numerous
motions for reconsideration filed by the parties, the President, in
recognition of the principle of judicial courtesy, should have refrained
from implementing our decision until we have ruled with finality on this
case.

RA No. 10153 as an interim measure

We find the petitioners reasoning specious.
We reiterate once more the importance of considering RA No. 10153 not
in a vacuum, but within the context it was enacted in. In the first place,
Congress enacted RA No. 10153 primarily to heed the constitutional
mandate to synchronize the ARMM regional elections with the national
and local elections. To do this, Congress had to postpone the scheduled
ARMM elections for another date, leaving it with the problem of how to
provide the ARMM with governance in the intervening period, between
the expiration of the term of those elected in August 2008 and the
assumption to office twenty-one (21) months away of those who will
win in the synchronized elections on May 13, 2013.
In our assailed Decision, we already identified the three possible
solutions open to Congress to address the problem created by
synchronization (a) allow the incumbent officials to remain in office after
the expiration of their terms in a holdover capacity; (b) call for special
elections to be held, and shorten the terms of those to be elected so the
next ARMM regional elections can be held on May 13, 2013; or (c)
recognize that the President, in the exercise of his appointment powers
and in line with his power of supervision over the ARMM, can appoint
interim OICs to hold the vacated positions in the ARMM regional
government upon the expiration of their terms. We have already
established the unconstitutionality of the first two options, leaving us to
consider the last available option.
In this way, RA No. 10153 is in reality an interim measure, enacted to
respond to the adjustment that synchronization requires. Given the
context, we have to judge RA No. 10153 by the standard of
reasonableness in responding to the challenges brought about by
synchronizing the ARMM elections with the national and local elections.
In other words, "given the plain unconstitutionality of providing for a
holdover and the unavailability of constitutional possibilities for
lengthening or shortening the term of the elected ARMM officials, is the
choice of the Presidents power to appoint for a fixed and specific
period as an interim measure, and as allowed under Section 16, Article
VII of the Constitution an unconstitutional or unreasonable choice for
Congress to make?"33
We admit that synchronization will temporarily disrupt the election
process in a local community, the ARMM, as well as the communitys
choice of leaders. However, we have to keep in mind that the adoption of
this measure is a matter of necessity in order to comply with a mandate

Firstly, the principle of judicial courtesy is based on the hierarchy of

courts and applies only to lower courts in instances where, even if there
is no writ of preliminary injunction or TRO issued by a higher court, it
would be proper for a lower court to suspend its proceedings for practical
and ethical considerations.35 In other words, the principle of "judicial
courtesy" applies where there is a strong probability that the issues
before the higher court would be rendered moot and moribund as a result
of the continuation of the proceedings in the lower court or court of
origin.36 Consequently, this principle cannot be applied to the President,
who represents a co-equal branch of government. To suggest otherwise
would be to disregard the principle of separation of powers, on which our
whole system of government is founded upon.
Secondly, the fact that our previous decision was based on a slim vote of
8-7 does not, and cannot, have the effect of making our ruling any less
effective or binding. Regardless of how close the voting is, so long as
there is concurrence of the majority of the members of the en banc who
actually took part in the deliberations of the case,37 a decision garnering
only 8 votes out of 15 members is still a decision of the Supreme Court
en banc and must be respected as such. The petitioners are, therefore,
not in any position to speculate that, based on the voting, "the probability
exists that their motion for reconsideration may be granted."38
Similarly, the petitioner in G.R. No. 197282, in his Very Urgent Motion to
Issue Clarificatory Resolution, argues that since motions for
reconsideration were filed by the aggrieved parties challenging our
October 18, 2011 decision in the present case, the TRO we initially
issued on September 13, 2011 should remain subsisting and effective.
He further argues that any attempt by the Executive to implement our
October 18, 2011 decision pending resolution of the motions for
reconsideration "borders on disrespect if not outright insolence"39 to this
Court.
In support of this theory, the petitioner cites Samad v.
COMELEC,40 where the Court held that while it had already issued a
decision lifting the TRO, the lifting of the TRO is not yet final and
executory, and can also be the subject of a motion for reconsideration.
The petitioner also cites the minute resolution issued by the Court in
Tolentino v. Secretary of Finance,41 where the Court reproached the
Commissioner of the Bureau of Internal Revenue for manifesting its

intention to implement the decision of the Court, noting that the Court had
not yet lifted the TRO previously issued.42
We agree with the petitioner that the lifting of a TRO can be included as a
subject of a motion for reconsideration filed to assail our decision. It does
not follow, however, that the TRO remains effective until after we have
issued a final and executory decision, especially considering the clear
wording of the dispositive portion of our October 18, 2011 decision, which
states:
WHEREFORE, premises considered, we DISMISS the consolidated
petitions assailing the validity of RA No. 10153 for lack of merit, and
UPHOLD the constitutionality of this law. We likewise LIFT the temporary
restraining order we issued in our Resolution of September 13, 2011. No
costs.43 (emphases ours)

D. Creation and alteration of Municipal Corporations/ LGUs

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 177597

July 16, 2008

BAI SANDRA S. A. SEMA, Petitioner,

vs.
COMMISSION ON ELECTIONS and DIDAGEN P.
DILANGALEN, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x

In this regard, we note an important distinction between Tolentino and the

present case. While it may be true that Tolentino and the present case
are similar in that, in both cases, the petitions assailing the challenged
laws were dismissed by the Court, an examination of the dispositive
portion of the decision in Tolentino reveals that the Court did not
categorically lift the TRO. In sharp contrast, in the present case, we
expressly lifted the TRO issued on September 13, 2011.1wphi1 There
is, therefore, no legal impediment to prevent the President from
exercising his authority to appoint an acting ARMM Governor and Vice
Governor as specifically provided for in RA No. 10153.

G.R. No. 178628

PERFECTO F. MARQUEZ, Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
DECISION
CARPIO, J.:

Conclusion

The Case

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

These consolidated petitions1 seek to annul Resolution No. 7902, dated

10 May 2007, of the Commission on Elections (COMELEC) treating
Cotabato City as part of the legislative district of the Province of Shariff
Kabunsuan.2

We find this speculation nothing short of fear-mongering.

This argument fails to take into consideration the unique factual and legal
circumstances which led to the enactment of RA No. 10153. RA No.
10153 was passed in order to synchronize the ARMM elections with the
national and local elections. In the course of synchronizing the ARMM
elections with the national and local elections, Congress had to grant the
President the power to appoint OICs in the ARMM, in light of the fact that:
(a) holdover by the incumbent ARMM elective officials is legally
impermissible; and (b) Congress cannot call for special elections and
shorten the terms of elective local officials for less than three years.
Unlike local officials, as the Constitution does not prescribe a term limit
for barangay and Sangguniang Kabataan officials, there is no legal
proscription which prevents these specific government officials from
continuing in a holdover capacity should some exigency require the
postponement of barangay or Sangguniang Kabataan elections. Clearly,
these fears have neither legal nor factual basis to stand on.
For the foregoing reasons, we deny the petitioners motions for
reconsideration.
WHEREFORE, premises considered, we DENY with FINALITY the
motions for reconsideration for lack of merit and UPHOLD the
constitutionality of RA No. 10153. SO ORDERED.

The Facts
The Ordinance appended to the 1987 Constitution apportioned two
legislative districts for the Province of Maguindanao. The first legislative
district consists of Cotabato City and eight municipalities.3 Maguindanao
forms part of the Autonomous Region in Muslim Mindanao (ARMM),
created under its Organic Act, Republic Act No. 6734 (RA 6734), as
amended by Republic Act No. 9054 (RA 9054).4 Although under the
Ordinance, Cotabato City forms part of Maguindanaos first legislative
district, it is not part of the ARMM but of Region XII, having voted against
its inclusion in the ARMM in the plebiscite held in November 1989.
On 28 August 2006, the ARMMs legislature, the ARMM Regional
Assembly, exercising its power to create provinces under Section 19,
Article VI of RA 9054,5 enacted Muslim Mindanao Autonomy Act No. 201
(MMA Act 201) creating the Province of Shariff Kabunsuan composed of
the eight municipalities in the first district of Maguindanao. MMA Act 201
provides:
Section 1. The Municipalities of Barira, Buldon, Datu Odin Sinsuat,
Kabuntalan, Matanog, Parang, Sultan Kudarat, Sultan Mastura, and Upi
are hereby separated from the Province of Maguindanao and constituted
into a distinct and independent province, which is hereby created, to be
known as the Province of Shariff Kabunsuan.
xxxx
Sec. 5. The corporate existence of this province shall commence upon
the appointment by the Regional Governor or election of the governor
and majority of the regular members of the Sangguniang Panlalawigan.
The incumbent elective provincial officials of the Province of
Maguindanao shall continue to serve their unexpired terms in the
province that they will choose or where they are residents: Provided, that
where an elective position in both provinces becomes vacant as a

consequence of the creation of the Province of Shariff Kabunsuan, all

incumbent elective provincial officials shall have preference for
appointment to a higher elective vacant position and for the time being be
appointed by the Regional Governor, and shall hold office until their
successors shall have been elected and qualified in the next local
elections; Provided, further, that they shall continue to receive the
salaries they are receiving at the time of the approval of this Act until the
new readjustment of salaries in accordance with law. Provided,
furthermore, that there shall be no diminution in the number of the
members of the Sangguniang Panlalawigan of the mother province.
Except as may be provided by national law, the existing legislative
district, which includes Cotabato as a part thereof, shall remain.
Later, three new municipalities6 were carved out of the original nine
municipalities constituting Shariff Kabunsuan, bringing its total number of
municipalities to 11. Thus, what was left of Maguindanao were the
municipalities constituting its second legislative district. Cotabato City,
although part of 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.

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

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.

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 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:

In the Resolution of 4 September 2007, the Court required the parties in

G.R. No. 177597 to comment on the issue of whether a province created
by the ARMM Regional Assembly under Section 19, Article VI of RA 9054
is entitled to one representative in the House of Representatives without
need of a national law creating a legislative district for such new province.
The parties submitted their compliance as follows:

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)

(1) Sema answered the issue in the affirmative on the following grounds:
(a) the Court in Felwa v. Salas14stated that "when a province is created
by statute, the corresponding representative district comes into existence
neither by authority of that statute which cannot provide otherwise
nor by apportionment, but by operation of the Constitution, without a
reapportionment"; (b) Section 462 of Republic Act No. 7160 (RA 7160)
"affirms" the apportionment of a legislative district incident to the creation
of a province; and (c) Section 5 (3), Article VI of the Constitution and
Section 3 of the Ordinance appended to the Constitution mandate the
apportionment of a legislative district in newly created provinces.

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)."91avvphi1
In G.R. No. 177597, Sema, who was a candidate in the 14 May 2007
elections for Representative of "Shariff Kabunsuan with Cotabato City,"
prayed for the nullification of COMELEC Resolution No. 7902 and the
exclusion from canvassing of the votes cast in Cotabato City for that
office. Sema contended that Shariff Kabunsuan is entitled to one
representative in Congress under Section 5 (3), Article VI of the
Constitution10 and Section 3 of the Ordinance appended to the
Constitution.11 Thus, Sema asserted that the COMELEC acted without
or in excess of its jurisdiction in issuing Resolution No. 7902 which
maintained the status quo in 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.

(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.

The Issues
The petitions raise the following issues:

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

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

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:

(2) whether the proclamation of respondent Dilangalen as representative

of Shariff Kabunsuan Province with Cotabato City mooted the petition in
G.R. No. 177597.

(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

(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) Respondent Dilangalen contended that Section 19, Article VI of RA

9054 is unconstitutional on the following grounds: (a) the power to create
provinces was not among those granted to the autonomous regions
under Section 20, Article X of the Constitution and (b) the grant under
Section 19, Article VI of RA 9054 to the ARMM Regional Assembly of the
power to prescribe standards lower than those mandated in Section 461
of RA 7160 on the creation of provinces contravenes Section 10, Article X
of the Constitution and the Equal Protection Clause; and
(3) The COMELEC, through the OSG, joined causes with respondent
Dilangalen (thus effectively abandoning the position the COMELEC
adopted in its Compliance with the Resolution of 4 September 2007) and
contended that Section 19, Article VI of RA 9054 is unconstitutional
because (a) it contravenes Section 10 and Section 6,20 Article X of the
Constitution and (b) the power to create provinces was withheld from the
autonomous regions under Section 20, Article X of the Constitution.
On the question of whether a province created under Section 19, Article
VI of RA 9054 is entitled to one representative in the House of
Representatives without need of a national law creating a legislative
district for such new province, Sema and respondent Dilangalen
reiterated in their Memoranda the positions they adopted in their
Compliance with the Resolution of 4 September 2007. The COMELEC
deemed it unnecessary to submit its position on this issue considering its
stance that Section 19, Article VI of RA 9054 is unconstitutional.
The pendency of the petition in G.R. No. 178628 was disclosed during
the oral arguments on 27 November 2007. Thus, in the Resolution of 19
February 2008, the Court ordered G.R. No. 178628 consolidated with
G.R. No. 177597. The petition in G.R. No. 178628 echoed Sema's
contention that the COMELEC acted ultra vires in issuing Resolution No.
7902 depriving the voters of Cotabato City of a representative in the
House of Representatives. In its Comment to the petition in G.R. No.
178628, the COMELEC, through the OSG, maintained the validity of
COMELEC Resolution No. 7902 as a temporary measure pending the
enactment by Congress of the "appropriate law."

(B) On the merits

(2) if in the affirmative, whether a province created by the ARMM

Regional Assembly under MMA Act 201 pursuant to Section 19, Article VI
of RA 9054 is entitled to one representative in the House of
Representatives without need of a national law creating a legislative
district for such province.
II. In G.R No. 177597 and G.R No. 178628, whether COMELEC
Resolution No. 7902 is valid for maintaining the status quo in the first
legislative district of Maguindanao (as "Shariff Kabunsuan Province with
Cotabato City [formerly First District of Maguindanao with Cotabato
City]"), despite the creation of the Province of Shariff Kabunsuan out of
such district (excluding Cotabato City).
The Ruling of the Court
The petitions have no merit. We rule that (1) Section 19, Article VI of RA
9054 is unconstitutional insofar as it grants to the ARMM Regional
Assembly the power to create provinces and cities; (2) MMA Act 201
creating the Province of Shariff Kabunsuan is void; and (3) COMELEC
Resolution No. 7902 is valid.
On the Preliminary Matters
The Writ of Prohibition is 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 quasijudicial functions."21 On the other hand, the writ of Mandamus will issue
to compel a tribunal, corporation, board, officer, or person to perform an
act "which the law specifically enjoins as a duty."22True, the COMELEC
did not issue Resolution No. 7902 in the exercise of its judicial or quasijudicial functions.23Nor is there a law which specifically enjoins the
COMELEC to exclude from canvassing the votes cast in Cotabato City
for representative of "Shariff Kabunsuan Province with Cotabato City."
These, however, do not justify the outright dismissal of the petition in
G.R. No. 177597 because Sema also prayed for the issuance of the writ
of Prohibition and we have long recognized this writ as proper for testing
the constitutionality of election laws, rules, and regulations.24
Respondent Dilangalens Proclamation
Does Not Moot the Petition
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 Province with 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 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.261avvphi1
Under Section 19, Article VI of RA 9054, Congress delegated to the
ARMM Regional Assembly the power to create provinces, cities,
municipalities and barangays within the ARMM. Congress made the
delegation under its plenary legislative powers because the power to
create local government units is not one of the express legislative powers
granted by the Constitution to regional legislative bodies.27 In the present
case, the question arises whether the delegation to the ARMM Regional
Assembly of the power to create provinces, cities, municipalities and
barangays conflicts with any provision of the Constitution.
There is no provision in the Constitution that conflicts with the delegation
to regional legislative bodies of the power to create municipalities and
barangays, provided Section 10, Article X of the Constitution is followed.
However, the creation of provinces and cities is another matter. Section 5
(3), Article VI of the Constitution provides, "Each city with a population of
at least two hundred fifty thousand, or each province, shall have at least
one representative" in the House of Representatives. Similarly, Section 3
of the Ordinance appended to the Constitution provides, "Any province
that may hereafter be created, or any city whose population may
hereafter increase to more than two hundred fifty thousand shall be
entitled in the immediately following election to at least one Member x x
x."

Clearly, a province cannot be created without a legislative district

because it will violate Section 5 (3), Article VI of the Constitution as well
as Section 3 of the Ordinance appended to the Constitution. For the
same reason, a city with a population of 250,000 or more cannot also be
created without a legislative district. Thus, the power to create a province,
or a city with a population of 250,000 or more, requires also the power to
create a legislative district. Even the creation of a city with a population of
less than 250,000 involves the power to create a legislative district
because once the 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 past28 Constitutions, the
power to increase the allowable membership in the House of
Representatives, and to reapportion legislative districts, is vested
exclusively in Congress. Section 5, Article VI of the Constitution provides:
SECTION 5. (1) The House of Representatives shall be composed of not
more than two hundred and fifty members, unless otherwise fixed by law,
who shall be elected from legislative districts apportioned among the
provinces, cities, and the Metropolitan Manila area in accordance with the
number of their respective inhabitants, and on the basis of a uniform and
progressive ratio, and those who, as provided by law, shall be elected
through a party-list system of registered national, regional, and sectoral
parties or organizations.
xxxx
(3) Each legislative district shall comprise, as far as practicable,
contiguous, compact, and adjacent territory. Each city with a population
of at least two hundred fifty thousand, or each province, shall have at
least one representative.
(4) Within three years following the return of every census, the
Congress shall make a reapportionment of legislative districts based on
the standards provided in this section. (Emphasis supplied)
Section 5 (1), Article VI of the Constitution vests in Congress the power to
increase, through a law, the allowable membership in the House of
Representatives. Section 5 (4) empowers Congress to reapportion
legislative districts. The power to reapportion legislative districts
necessarily includes the power to create legislative districts out of existing
ones. Congress exercises these powers through a law that Congress
itself enacts, and not through a law that regional or local legislative
bodies enact. The allowable membership of the House of
Representatives can be increased, and new legislative districts of
Congress can be created, only through a national law passed by
Congress. In Montejo v. COMELEC,29 we held that the "power of
redistricting x x x is traditionally regarded as part of the power (of
Congress) to make laws," and thus is vested exclusively in Congress.
This textual commitment to Congress of the exclusive power to create or
reapportion legislative districts is logical. Congress is a national
legislature and any increase in its allowable membership or in its
incumbent membership through the creation of legislative districts must
be embodied in a national law. Only Congress can enact such a law. It
would be anomalous for regional or local legislative bodies to create or

reapportion legislative districts for a national legislature like Congress. An

inferior legislative body, created by a superior legislative body, cannot
change the membership of the superior legislative body.

Except as may be provided by national law, the existing legislative

district, which includes Cotabato City as a part thereof, shall remain.
(Emphasis supplied)

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:

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.

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;

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)

(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.

and Section 3 of the Ordinance appended to the Constitution, which

states:
Any province that may hereafter be created, or any city whose population
may hereafter increase to more than two hundred fifty thousand shall be
entitled in the immediately following election to at least one Member or
such number of Members as it may be entitled to on the basis of the
number of its inhabitants and according to the standards set forth in
paragraph (3), Section 5 of Article VI of the Constitution. The number of
Members apportioned to the province out of which such new province
was created or where the city, whose population has so increased, is
geographically located shall be correspondingly adjusted by the
Commission on Elections but such adjustment shall not be made within
one hundred and twenty days before the election. (Emphasis supplied)
serve as bases for the conclusion that the Province of Shariff Kabunsuan,
created on 29 October 2006, is automatically entitled to one member in
the House of Representatives in the 14 May 2007 elections. As further
support for her stance, petitioner invokes the statement in Felwa that
"when a province is created by statute, the corresponding representative
district comes into existence neither by authority of that statute which
cannot provide otherwise nor by apportionment, but by operation of
the Constitution, without a reapportionment."
The contention has no merit.
First. The issue in Felwa, among others, was whether Republic Act No.
4695 (RA 4695), creating the provinces of Benguet, Mountain Province,
Ifugao, and Kalinga-Apayao and providing for congressional
representation in the old and new provinces, was unconstitutional for
"creati[ng] congressional districts without the apportionment provided in
the Constitution." The Court answered in the negative, thus:
The Constitution ordains:

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 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."

The ARMM Regional Assembly itself, in creating Shariff Kabunsuan,

recognized the exclusive nature of Congress power to create or
reapportion legislative districts by abstaining from creating a legislative
district for Shariff Kabunsuan. Section 5 of MMA Act 201 provides that:

Pursuant to this Section, a representative district may come into

existence: (a) indirectly, through the creation of a province for "each
province shall have at least one member" in the House of
Representatives; or (b) by direct creation of several representative

districts within a province. The requirements concerning the

apportionment of representative districts and the territory thereof refer
only to the second method of creation of representative districts, and do
not apply to those incidental to the creation of provinces, under the first
method. This is deducible, not only from the general tenor of the provision
above quoted, but, also, from the fact that the apportionment therein
alluded to refers to that which is made by an Act of Congress. Indeed,
when a province is created by statute, the corresponding representative
district, comes into existence neither by authority of that statute which
cannot provide otherwise nor by apportionment, but by operation of
the Constitution, without a reapportionment.

(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);

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)

(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.

(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

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:
Justice Carpio:

Thus, the Court sustained the constitutionality of RA 4695 because (1) it

validly created legislative districts "indirectly" through a special law
enacted by Congress creating a province and (2) the creation of the
legislative districts will not result in breaching the maximum number of
legislative districts provided under the 1935 Constitution. Felwa does not
apply to the present case because in Felwa the new provinces were
created by anational law enacted by Congress itself. Here, the new
province was created merely by a regional law enacted by the ARMM
Regional Assembly.
What Felwa teaches is that the creation of a legislative district by
Congress does not emanate alone from Congress power to reapportion
legislative districts, but also from Congress power to create provinces
which cannot be created without a legislative district. Thus, when a
province is created, a legislative district is created by operation of the
Constitution because the Constitution provides that "each province shall
have at least one representative" in the House of Representatives. This
does not detract from the constitutional principle that the power to create
legislative districts belongs exclusively to Congress. It merely prevents
any other legislative body, except Congress, from creating provinces
because for a legislative body to create a province such legislative body
must have the power to create legislative districts. In short, only an act of
Congress can trigger the creation of a legislative district by operation of
the Constitution. Thus, only Congress has the power to create, or trigger
the creation of, a legislative district.
Moreover, if as Sema claims MMA Act 201 apportioned a legislative
district to Shariff Kabunsuan upon its creation, this will leave Cotabato
City as the lone component of the first legislative district of Maguindanao.
However, Cotabato City cannot constitute a legislative district by itself
because as of the census taken in 2000, it had a population of only
163,849. To constitute Cotabato City alone as the surviving first
legislative district of Maguindanao will violate Section 5 (3), Article VI of
the Constitution which requires that "[E]ach city with a population of at
least two hundred fifty thousand x x x, shall have at least one
representative."
Second. 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:

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)
Neither the framers of the 1987 Constitution in adopting the provisions in
Article X on regional autonomy,37 nor Congress in enacting RA 9054,
envisioned or intended these disastrous consequences that certainly
would wreck the tri-branch system of government under our Constitution.

Clearly, the power to create or reapportion legislative districts cannot be

delegated by Congress but must be exercised by Congress itself. Even
the ARMM Regional Assembly recognizes this.
The Constitution empowered Congress to create or reapportion
legislative districts, not the regional assemblies. Section 3 of the
Ordinance to the Constitution which states, "[A]ny province that may
hereafter be created x x x shall be entitled in the immediately following
election to at least one Member," refers to a province created by
Congress itself through a national law. The reason is that the creation of
a province increases the actual membership of the House of
Representatives, an increase that only Congress can decide. Incidentally,
in the present 14th Congress, there are 21938 district representatives out
of the maximum 250 seats in the House of Representatives. Since partylist 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.

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.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 176951

It is axiomatic that organic acts of autonomous regions cannot prevail

over the Constitution. Section 20, Article X of the Constitution expressly
provides that the legislative powers of regional assemblies are
limited "[w]ithin its territorial jurisdiction and subject to the provisions of
the Constitution and national laws, x x x." The Preamble of the ARMM
Organic Act (RA 9054) itself states that the ARMM Government is
established "within the framework of the Constitution." This follows
Section 15, Article X of the Constitution which mandates that the ARMM
"shall be created x x x within the framework of this Constitution and the
national sovereignty as well as territorial integrity of the Republic of the
Philippines."
The present case involves the creation of a local government unit that
necessarily involves also the creation of a legislative district. The Court
will not pass upon the constitutionality of the creation of municipalities
and barangays that does not comply with the criteria established in
Section 461 of RA 7160, as mandated in Section 10, Article X of the
Constitution, because the creation of such municipalities and barangays
does not involve the creation of legislative districts. We leave the
resolution of this issue to an appropriate case.
In summary, we rule that Section 19, Article VI of RA 9054, insofar as it
grants to the ARMM Regional Assembly the power to create provinces
and cities, is void for being contrary to Section 5 of Article VI and Section
20 of Article X of the Constitution, as well as Section 3 of the Ordinance
appended to the Constitution. Only Congress can create provinces and
cities because the creation of provinces and cities necessarily includes
the creation of legislative districts, a power only Congress can exercise
under Section 5, Article VI of the Constitution and Section 3 of the
Ordinance appended to the Constitution. The ARMM Regional Assembly
cannot create a province without a legislative district because the
Constitution mandates that every province shall have a legislative district.
Moreover, the ARMM Regional Assembly cannot enact a law creating a
national office like the office of a district representative of Congress
because the legislative powers of the ARMM Regional Assembly operate
only within its territorial jurisdiction as provided in Section 20, Article X of
the Constitution. Thus, we rule that MMA Act 201, enacted by the ARMM
Regional Assembly and creating the Province of Shariff Kabunsuan, is
void.
Resolution No. 7902 Complies with the Constitution
Consequently, we hold that COMELEC Resolution No. 7902, preserving
the geographic and legislative district of the First District of Maguindanao
with Cotabato City, is valid as it merely complies with Section 5 of Article

November 18, 2008

LEAGUE OF CITIES OF THE PHILIPPINES (LCP) represented by LCP

National President JERRY P. TREAS, CITY OF ILOILO represented
by MAYOR JERRY P. TREAS, CITY OF CALBAYOG represented by
MAYOR MEL SENEN S. SARMIENTO, and JERRY P. TREAS in his
personal capacity as taxpayer, petitioners,
vs.
COMMISSION ON ELECTIONS; MUNICIPALITY OF BAYBAY,
PROVINCE OF LEYTE; MUNICIPALITY OF BOGO, PROVINCE OF
CEBU; MUNICIPALITY OF CATBALOGAN, PROVINCE OF WESTERN
SAMAR; MUNICIPALITY OF TANDAG, PROVINCE OF SURIGAO DEL
SUR; MUNICIPALITY OF BORONGAN, PROVINCE OF EASTERN
SAMAR; and MUNICIPALITY OF TAYABAS, PROVINCE OF
QUEZON, respondents.
CITY OF TARLAC, CITY OF SANTIAGO, CITY OF IRIGA, CITY OF
LIGAO, CITY OF LEGAZPI, CITY OF TAGAYTAY, CITY OF SURIGAO,
CITY OF BAYAWAN, CITY OF SILAY, CITY OF GENERAL SANTOS,
CITY OF ZAMBOANGA, CITY OF GINGOOG, CITY OF CAUAYAN,
CITY OF PAGADIAN, CITY OF SAN CARLOS, CITY OF SAN
FERNANDO, CITY OF TACURONG, CITY OF TANGUB, CITY OF
OROQUIETA, CITY OF URDANETA, CITY OF VICTORIAS, CITY OF
CALAPAN, CITY OF HIMAMAYLAN, CITY OF BATANGAS, CITY OF
BAIS, CITY OF CADIZ, and CITY OF TAGUM,petitioners-inintervention.
x-----------------------------x
G.R. No. 177499

November 18, 2008

LEAGUE OF CITIES OF THE PHILIPPINES (LCP) represented by LCP

National President JERRY P. TREAS, CITY OF ILOILO represented by
MAYOR JERRY P. TREAS, CITY OF CALBAYOG represented by
MAYOR MEL SENEN S. SARMIENTO, and JERRY P. TREAS in his
personal capacity as taxpayer, petitioners,
vs.
COMMISSION ON ELECTIONS; MUNICIPALITY OF LAMITAN,
PROVINCE OF BASILAN; MUNICIPALITY OF TABUK, PROVINCE OF
KALINGA; MUNICIPALITY OF BAYUGAN, PROVINCE OF AGUSAN
DEL SUR; MUNICIPALITY OF BATAC, PROVINCE OF ILOCOS
NORTE; MUNICIPALITY OF MATI, PROVINCE OF DAVAO ORIENTAL;
and MUNICIPALITY OF GUIHULNGAN, PROVINCE OF NEGROS
ORIENTAL, respondents.
CITY OF TARLAC, CITY OF SANTIAGO, CITY OF IRIGA, CITY OF
LIGAO, CITY OF LEGAZPI, CITY OF TAGAYTAY, CITY OF SURIGAO,
CITY OF BAYAWAN, CITY OF SILAY, CITY OF GENERAL SANTOS,
CITY OF ZAMBOANGA, CITY OF GINGOOG, CITY OF CAUAYAN,

CITY OF PAGADIAN, CITY OF SAN CARLOS, CITY OF SAN

FERNANDO, CITY OF TACURONG, CITY OF TANGUB, CITY OF
OROQUIETA, CITY OF URDANETA, CITY OF VICTORIAS, CITY OF
CALAPAN, CITY OF HIMAMAYLAN, CITY OF BATANGAS, CITY OF
BAIS, CITY OF CADIZ, and CITY OF TAGUM,petitioners-in-intervention.
x - - - - - - - - - - - - - - - - - - - - - - - - - - --x
G.R. No. 178056

During the 13th Congress,9 the House of Representatives re-adopted

Joint Resolution No. 29 as Joint Resolution No. 1 and forwarded it to the
Senate for approval. However, the Senate again failed to approve the
Joint Resolution. Following the advice of Senator Aquilino Pimentel, 16
municipalities filed, through their respective sponsors, individual cityhood
bills. The 16 cityhood bills contained a common provision exempting all
the 16 municipalities from the P100 million income requirement in RA
9009.

November 18, 2008

LEAGUE OF CITIES OF THE PHILIPPINES (LCP) represented by LCP

National President JERRY P. TREAS, CITY OF ILOILO represented by
MAYOR JERRY P. TREAS, CITY OF CALBAYOG represented by
MAYOR MEL SENEN S. SARMIENTO, and JERRY P. TREAS in his
personal capacity as taxpayer, petitioners
vs.
COMMISSION ON ELECTIONS; MUNICIPALITY OF CABADBARAN,
PROVINCE OF AGUSAN DEL NORTE; MUNICIPALITY OF CARCAR,
PROVINCE OF CEBU; and MUNICIPALITY OF EL SALVADOR,
MISAMIS ORIENTAL, respondents.
CITY OF TARLAC, CITY OF SANTIAGO, CITY OF IRIGA, CITY OF
LIGAO, CITY OF LEGAZPI, CITY OF TAGAYTAY, CITY OF SURIGAO,
CITY OF BAYAWAN, CITY OF SILAY, CITY OF GENERAL SANTOS,
CITY OF ZAMBOANGA, CITY OF GINGOOG, CITY OF CAUAYAN,
CITY OF PAGADIAN, CITY OF SAN CARLOS, CITY OF SAN
FERNANDO, CITY OF TACURONG, CITY OF TANGUB, CITY OF
OROQUIETA, CITY OF URDANETA, CITY OF VICTORIAS, CITY OF
CALAPAN, CITY OF HIMAMAYLAN, CITY OF BATANGAS, CITY OF
BAIS, CITY OF CADIZ, and CITY OF TAGUM,petitioners-in-intervention.

On 22 December 2006, the House of Representatives approved the

cityhood bills. The Senate also approved the cityhood bills in February
2007, except that of Naga, Cebu which was passed on 7 June 2007. The
cityhood bills lapsed into law (Cityhood Laws10) on various dates from
March to July 2007 without the President's signature.11
The Cityhood Laws direct the COMELEC to hold plebiscites to determine
whether the voters in each respondent municipality approve of the
conversion of their municipality into a city.
Petitioners filed the present petitions to declare the Cityhood Laws
unconstitutional for violation of Section 10, Article X of the Constitution,
as well as for violation of the equal protection clause.12Petitioners also
lament that the wholesale conversion of municipalities into cities will
reduce the share of existing cities in the Internal Revenue Allotment
because more cities will share the same amount of internal revenue set
aside for all cities under Section 285 of the Local Government Code.13
The Issues
The petitions raise the following fundamental issues:

DECISION
CARPIO, J.:

1. Whether the Cityhood Laws violate Section 10, Article X of the

Constitution; and

The Case

2. Whether the Cityhood Laws violate the equal protection clause.

These are consolidated petitions for prohibition1 with prayer for the
issuance of a writ of preliminary injunction or temporary restraining order
filed by the League of Cities of the Philippines, City of Iloilo, City of
Calbayog, and Jerry P. Treas2 assailing the constitutionality of the
subject Cityhood Laws and enjoining the Commission on Elections
(COMELEC) and respondent municipalities from conducting plebiscites
pursuant to the Cityhood Laws.

The Ruling of the Court

The Facts
During the 11th Congress,3 Congress enacted into law 33 bills converting
33 municipalities into cities. However, Congress did not act on bills
converting 24 other municipalities into cities.
During the 12th Congress,4 Congress enacted into law Republic Act No.
9009 (RA 9009),5 which took effect on 30 June 2001. RA 9009 amended
Section 450 of the Local Government Code by increasing the annual
income requirement for conversion of a municipality into a city from P20
million to P100 million. The rationale for the amendment was to restrain,
in the words of Senator Aquilino Pimentel, "the mad rush" of
municipalities to convert into cities solely to secure a larger share in the
Internal Revenue Allotment despite the fact that they are incapable of
fiscal independence.6
After the effectivity of RA 9009, the House of Representatives of the
12th Congress7 adopted Joint Resolution No. 29,8 which sought to
exempt from the P100 million income requirement in RA 9009 the 24
municipalities whose cityhood bills were not approved in the
11th Congress. However, the 12th Congress ended without the Senate
approving Joint Resolution No. 29.

We grant the petitions.

The Cityhood Laws violate Sections 6 and 10, Article X of the
Constitution, and are thus unconstitutional.
First, applying the P100 million income requirement in RA 9009 to the
present case is a prospective, not a retroactive application, because RA
9009 took effect in 2001 while the cityhood bills became law more than
five years later.
Second, the Constitution requires that Congress shall prescribe all the
criteria for the creation of a city in the Local Government Code and not in
any other law, including the Cityhood Laws.
Third, the Cityhood Laws violate Section 6, Article X of the Constitution
because they prevent a fair and just distribution of the national taxes to
local government units.
Fourth, the criteria prescribed in Section 450 of the Local Government
Code, as amended by RA 9009, for converting a municipality into a city
are clear, plain and unambiguous, needing no resort to any statutory
construction.
Fifth, the intent of members of the 11th Congress to exempt certain
municipalities from the coverage of RA 9009 remained an intent and was
never written into Section 450 of the Local Government Code.
Sixth, the deliberations of the 11th or 12th Congress on unapproved bills
or resolutions are not extrinsic aids in interpreting a law passed in the
13th Congress.

Seventh, even if the exemption in the Cityhood Laws were written in

Section 450 of the Local Government Code, the exemption would still be
unconstitutional for violation of the equal protection clause.

acted upon during the 11th Congress. This Resolution reached the
Senate. However, the 12thCongress adjourned without the Senate
approving Joint Resolution No. 29.

Preliminary Matters

During the 13th Congress, 16 of the 24 municipalities mentioned in the

unapproved Joint Resolution No. 29 filed between November and
December of 2006, through their respective sponsors in Congress,
individual cityhood bills containing a common provision, as follows:

Prohibition is the proper action for testing the constitutionality of laws

administered by the COMELEC,14like the Cityhood Laws, which direct
the COMELEC to hold plebiscites in implementation of the Cityhood
Laws. Petitioner League of Cities of the Philippines has legal standing
because Section 499 of the Local Government Code tasks the League
with the "primary purpose of ventilating, articulating and crystallizing
issues affecting city government administration and securing, through
proper and legal means, solutions thereto."15 Petitioners-inintervention,16 which are existing cities, have legal standing because
their Internal Revenue Allotment will be reduced if the Cityhood Laws are
declared constitutional. Mayor Jerry P. Treas has legal standing
because as Mayor of Iloilo City and as a taxpayer he has sufficient
interest to prevent the unlawful expenditure of public funds, like the
release of more Internal Revenue Allotment to political units than what
the law allows.
Applying RA 9009 is a Prospective Application of the Law
RA 9009 became effective on 30 June 2001 during the 11th Congress.
This law specifically amended Section 450 of the Local Government
Code, which now provides:
Section 450. Requisites for Creation. (a) A municipality or a cluster of
barangays may be converted into a component city if it has a locally
generated average annual income, as certified by the Department of
Finance, of at least One hundred million pesos (P100,000,000.00) for the
last two (2) consecutive years based on 2000 constant prices, and if it
has either of the following requisites:
(i) a contiguous territory of at least one hundred (100) square kilometers,
as certified by the Land Management Bureau; or
(ii) a population of not less than one hundred fifty thousand (150,000)
inhabitants, as certified by the National Statistics Office.
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. (Emphasis supplied)
Thus, RA 9009 increased the income requirement for conversion of a
municipality into a city from P20 million to P100 million. Section 450 of
the Local Government Code, as amended by RA 9009, does not provide
any exemption from the increased income requirement.
Prior to the enactment of RA 9009, a total of 57 municipalities had
cityhood bills pending in Congress. Thirty-three cityhood bills became law
before the enactment of RA 9009. Congress did not act on 24 cityhood
bills during the 11th Congress.
During the 12th Congress, the House of Representatives adopted Joint
Resolution No. 29, exempting from the income requirement of P100
million in RA 9009 the 24 municipalities whose cityhood bills were not

Exemption from Republic Act No. 9009. - The City of x x x shall be

exempted from the income requirement prescribed under Republic Act
No. 9009.
This common provision exempted each of the 16 municipalities from the
income requirement ofP100 million prescribed in Section 450 of the Local
Government Code, as amended by RA 9009. These cityhood bills lapsed
into law on various dates from March to July 2007 after President Gloria
Macapagal-Arroyo failed to sign them.
Indisputably, Congress passed the Cityhood Laws long after the
effectivity of RA 9009. RA 9009 became effective on 30 June 2001 or
during the 11th Congress. The 13th Congress passed in December 2006
the cityhood bills which became law only in 2007. Thus, respondent
municipalities cannot invoke the principle of non-retroactivity of
laws.17 This basic rule has no application because RA 9009, an earlier
law to the Cityhood Laws, is not being applied retroactively but
prospectively.
Congress Must Prescribe in the Local Government Code All Criteria
Section 10, Article X of the 1987 Constitution provides:
No province, city, municipality, or barangay shall be created, divided,
merged, abolished or its boundary substantially altered, except in
accordance with the criteria established in the local government code and
subject to approval by a majority of the votes cast in a plebiscite in the
political units directly affected. (Emphasis supplied)
The Constitution is clear. The creation of local government units must
follow the criteria established in the Local Government Code and not in
any other law. There is only one Local Government Code.18The
Constitution requires Congress to stipulate in the Local Government
Code all the criteria necessary for the creation of a city, including the
conversion of a municipality into a city. Congress cannot write such
criteria in any other law, like the Cityhood Laws.
The criteria prescribed in the Local Government Code govern exclusively
the creation of a city. No other law, not even the charter of the city, can
govern such creation. The clear intent of the Constitution is to insure that
the creation of cities and other political units must follow the same
uniform, non-discriminatory criteria found solely in the Local Government
Code. Any derogation or deviation from the criteria prescribed in the
Local Government Code violates Section 10, Article X of the Constitution.
RA 9009 amended Section 450 of the Local Government Code to
increase the income requirement fromP20 million to P100 million for the
creation of a city. This took effect on 30 June 2001. Hence, from that
moment the Local Government Code required that any municipality
desiring to become a city must satisfy the P100 million income
requirement. Section 450 of the Local Government Code, as amended by
RA 9009, does not contain any exemption from this income requirement.
In enacting RA 9009, Congress did not grant any exemption to
respondent municipalities, even though their cityhood bills were pending
in Congress when Congress passed RA 9009. The Cityhood Laws, all
enacted after the effectivity of RA 9009, explicitly exempt respondent
municipalities from the increased income requirement in Section 450 of
the Local Government Code, as amended by RA 9009. Such exemption

clearly violates Section 10, Article X of the Constitution and is thus

patently unconstitutional. To be valid, such exemption must be written in
the Local Government Code and not in any other law, including the
Cityhood Laws.
Cityhood Laws Violate Section 6, Article X of the Constitution
Uniform and non-discriminatory criteria as prescribed in the Local
Government Code are essential to implement a fair and equitable
distribution of national taxes to all local government units. Section 6,
Article X of the Constitution provides:
Local government units shall have a just share, as determined by law, in
the national taxes which shall be automatically released to them.
(Emphasis supplied)
If the criteria in creating local government units are not uniform and
discriminatory, there can be no fair and just distribution of the national
taxes to local government units.
A city with an annual income of only P20 million, all other criteria being
equal, should not receive the same share in national taxes as a city with
an annual income of P100 million or more. The criteria of land area,
population and income, as prescribed in Section 450 of the Local
Government Code, must be strictly followed because such criteria,
prescribed by law, are material in determining the "just share" of local
government units in national taxes. Since the Cityhood Laws do not
follow the income criterion in Section 450 of the Local Government Code,
they prevent the fair and just distribution of the Internal Revenue
Allotment in violation of Section 6, Article X of the Constitution.
Section 450 of the Local Government Code is Clear,
Plain and Unambiguous
There can be no resort to extrinsic aids like deliberations of Congress
if the language of the law is plain, clear and unambiguous. Courts
determine the intent of the law from the literal language of the law, within
the law's four corners.19 If the language of the law is plain, clear and
unambiguous, courts simply apply the law according to its express terms.
If a literal application of the law results in absurdity, impossibility or
injustice, then courts may resort to extrinsic aids of statutory construction
like the legislative history of the law.20
Congress, in enacting RA 9009 to amend Section 450 of the Local
Government Code, did not provide any exemption from the increased
income requirement, not even to respondent municipalities whose
cityhood bills were then pending when Congress passed RA 9009.
Section 450 of the Local Government Code, as amended by RA 9009,
contains no exemption whatsoever. Since the law is clear, plain and
unambiguous that any municipality desiring to convert into a city must
meet the increased income requirement, there is no reason to go beyond
the letter of the law in applying Section 450 of the Local Government
Code, as amended by RA 9009.
The 11th Congress' Intent was not Written into the Local Government
Code
True, members of Congress discussed exempting respondent
municipalities from RA 9009, as shown by the various deliberations on
the matter during the 11th Congress. However, Congress did not write
this intended exemption into law. Congress could have easily included
such exemption in RA 9009 but Congress did not. This is fatal to the
cause of respondent municipalities because such exemption must appear
in RA 9009 as an amendment to Section 450 of the Local Government
Code. The Constitution requires that the criteria for the conversion of a
municipality into a city, including any exemption from such criteria, must
all be written in the Local Government Code. Congress cannot prescribe
such criteria or exemption from such criteria in any other law. In short,

Congress cannot create a city through a law that does not comply with
the criteria or exemption found in the Local Government Code.
Section 10 of Article X is similar to Section 16, Article XII of the
Constitution prohibiting Congress from creating private corporations
except by a general law. Section 16 of Article XII provides:
The Congress shall not, except by general law, provide for the formation,
organization, or regulation of private corporations. Government-owned or
controlled corporations may be created or established by special charters
in the interest of the common good and subject to the test of economic
viability. (Emphasis supplied)
Thus, Congress must prescribe all the criteria for the "formation,
organization, or regulation" of private corporations in a general law
applicable to all without discrimination.21 Congress cannot create a
private corporation through a special law or charter.
Deliberations of the 11th Congress on Unapproved Bills Inapplicable
Congress is not a continuing body.22 The unapproved cityhood bills filed
during the 11th Congress became mere scraps of paper upon the
adjournment of the 11th Congress. All the hearings and deliberations
conducted during the 11th Congress on unapproved bills also became
worthless upon the adjournment of the 11th Congress. These hearings
and deliberations cannot be used to interpret bills enacted into law in the
13th or subsequent Congresses.
The members and officers of each Congress are different. All unapproved
bills filed in one Congress become functus officio upon adjournment of
that Congress and must be re-filed anew in order to be taken up in the
next Congress. When their respective authors re-filed the cityhood bills in
2006 during the 13th Congress, the bills had to start from square one
again, going through the legislative mill just like bills taken up for the first
time, from the filing to the approval. Section 123, Rule XLIV of the Rules
of the Senate, on Unfinished Business, provides:
Sec. 123. x x x
All pending matters and proceedings shall terminate upon the expiration
of one (1) Congress, but may be taken by the succeeding Congress as if
presented for the first time. (Emphasis supplied)
Similarly, Section 78 of the Rules of the House of Representatives, on
Unfinished Business, states:
Section 78. Calendar of Business. The Calendar of Business shall consist
of the following:
a. Unfinished Business. This is business being considered by the House
at the time of its last adjournment. Its consideration shall be resumed until
it is disposed of. The Unfinished Business at the end of a session shall be
resumed at the commencement of the next session as if no adjournment
has taken place. At the end of the term of a Congress, all Unfinished
Business are deemed terminated. (Emphasis supplied)
Thus, the deliberations during the 11th Congress on the unapproved
cityhood bills, as well as the deliberations during the 12th and
13th Congresses on the unapproved resolution exempting from RA 9009
certain municipalities, have no legal significance. They do not qualify as
extrinsic aids in construing laws passed by subsequent Congresses.
Applicability of Equal Protection Clause
If Section 450 of the Local Government Code, as amended by RA 9009,
contained an exemption to theP100 million annual income requirement,
the criteria for such exemption could be scrutinized for possible violation
of the equal protection clause. Thus, the criteria for the exemption, if

found in the Local Government Code, could be assailed on the ground of

absence of a valid classification. However, Section 450 of the Local
Government Code, as amended by RA 9009, does not contain any
exemption. The exemption is contained in the Cityhood Laws, which are
unconstitutional because such exemption must be prescribed in the Local
Government Code as mandated in Section 10, Article X of the
Constitution.

9009. That specific condition will never happen again. This violates the
requirement that a valid classification must not be limited to existing
conditions only. This requirement is illustrated in Mayflower Farms, Inc. v.
Ten Eyck,25 where the challenged law allowed milk dealers engaged in
business prior to a fixed date to sell at a price lower than that allowed to
newcomers in the same business. In Mayflower, the U.S. Supreme Court
held:

Even if the exemption provision in the Cityhood Laws were written in

Section 450 of the Local Government Code, as amended by RA 9009,
such exemption would still be unconstitutional for violation of the equal
protection clause. The exemption provision merely states, "Exemption
from Republic Act No. 9009 The City of x x x shall be exempted from
the income requirement prescribed under Republic Act No. 9009." This
one sentence exemption provision contains no classification standards or
guidelines differentiating the exempted municipalities from those that are
not exempted.

We are referred to a host of decisions to the effect that a regulatory law

may be prospective in operation and may except from its sweep those
presently engaged in the calling or activity to which it is directed.
Examples are statutes licensing physicians and dentists, which apply only
to those entering the profession subsequent to the passage of the act
and exempt those then in practice, or zoning laws which exempt existing
buildings, or laws forbidding slaughterhouses within certain areas, but
excepting existing establishments. The challenged provision is unlike
such laws, since, on its face, it is not a regulation of a business or an
activity in the interest of, or for the protection of, the public, but an attempt
to give an economic advantage to those engaged in a given business at
an arbitrary date as against all those who enter the industry after that
date. The appellees do not intimate that the classification bears any
relation to the public health or welfare generally; that the provision will
discourage monopoly; or that it was aimed at any abuse, cognizable by
law, in the milk business. In the absence of any such showing, we have
no right to conjure up possible situations which might justify the
discrimination. The classification is arbitrary and unreasonable and
denies the appellant the equal protection of the law. (Emphasis supplied)

Even if we take into account the deliberations in the 11th Congress that
municipalities with pending cityhood bills should be exempt from
the P100 million income requirement, there is still no valid classification to
satisfy the equal protection clause. The exemption will be based solely on
the fact that the 16 municipalities had cityhood bills pending in the
11th Congress when RA 9009 was enacted. This is not a valid
classification between those entitled and those not entitled to exemption
from the P100 million income requirement.
To be valid, the classification in the present case must be based on
substantial distinctions, rationally related to a legitimate government
objective which is the purpose of the law,23 not limited to existing
conditions only, and applicable to all similarly situated. Thus, this Court
has ruled:
The equal protection clause of the 1987 Constitution permits a valid
classification under the following conditions:
1. The classification must rest on substantial distinctions;
2. The classification must be germane to the purpose of the law;
3. The classification must not be limited to existing conditions only; and
4. The classification must apply equally to all members of the same
class.24
There is no substantial distinction between municipalities with pending
cityhood bills in the 11thCongress and municipalities that did not have
pending bills. The mere pendency of a cityhood bill in the 11th Congress
is not a material difference to distinguish one municipality from another
for the purpose of the income requirement. The pendency of a cityhood
bill in the 11th Congress does not affect or determine the level of income
of a municipality. Municipalities with pending cityhood bills in the
11thCongress might even have lower annual income than municipalities
that did not have pending cityhood bills. In short, the classification
criterion mere pendency of a cityhood bill in the 11th Congress is not
rationally related to the purpose of the law which is to prevent fiscally
non-viable municipalities from converting into cities.
Municipalities that did not have pending cityhood bills were not informed
that a pending cityhood bill in the 11th Congress would be a condition for
exemption from the increased P100 million income requirement. Had they
been informed, many municipalities would have caused the filing of their
own cityhood bills. These municipalities, even if they have bigger annual
income than the 16 respondent municipalities, cannot now convert into
cities if their income is less than P100 million.
The fact of pendency of a cityhood bill in the 11th Congress limits the
exemption to a specific condition existing at the time of passage of RA

In the same vein, the exemption provision in the Cityhood Laws gives the
16 municipalities a unique advantage based on an arbitrary date the
filing of their cityhood bills before the end of the 11thCongress - as
against all other municipalities that want to convert into cities after the
effectivity of RA 9009.
Furthermore, limiting the exemption only to the 16 municipalities violates
the requirement that the classification must apply to all similarly situated.
Municipalities with the same income as the 16 respondent municipalities
cannot convert into cities, while the 16 respondent municipalities can.
Clearly, as worded the exemption provision found in the Cityhood Laws,
even if it were written in Section 450 of the Local Government Code,
would still be unconstitutional for violation of the equal protection clause.
WHEREFORE, we GRANT the petitions and
declare UNCONSTITUTIONAL the Cityhood Laws, namely: Republic Act
Nos. 9389, 9390, 9391, 9392, 9393, 9394, 9398, 9404, 9405, 9407,
9408, 9409, 9434, 9435, 9436, and 9491.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 176951

December 21, 2009

LEAGUE OF CITIES OF THE PHILIPPINES (LCP) represented by LCP

National President JERRY P. TREAS, CITY OF ILOILO represented
by MAYOR JERRY P. TREAS, CITY OF CALBAYOG represented by
MAYOR MEL SENEN S. SARMIENTO, and JERRY P. TREAS in his
personal capacity as taxpayer Petitioners,
vs.
COMMISSION ON ELECTIONS; MUNICIPALITY OF BAYBAY,
PROVINCE OF LEYTE; MUNICIPALITY OF BOGO, PROVINCE OF
CEBU; MUNICIPALITY OF CATBALOGAN, PROVINCE OF WESTERN
SAMAR; MUNICIPALITY OF TANDAG, PROVINCE OF SURIGAO DEL
SUR; MUNICIPALITY OF BORONGAN, PROVINCE OF EASTERN

SAMAR; and MUNICIPALITY OF TAYABAS, PROVINCE OF

QUEZON, Respondents.
CITY OF TARLAC, CITY OF SANTIAGO, CITY OF IRIGA, CITY OF
LIGAO, CITY OF LEGAZPI, CITY OF TAGAYTAY, CITY OF SURIGAO,
CITY OF BAYAWAN, CITY OF SILAY, CITY OF GENERAL SANTOS,
CITY OF ZAMBOANGA, CITY OF GINGOOG, CITY OF CAUAYAN,
CITY OF PAGADIAN, CITY OF SAN CARLOS, CITY OF SAN
FERNANDO, CITY OF TACURONG, CITY OF TANGUB, CITY OF
OROQUIETA, CITY OF URDANETA, CITY OF VICTORIAS, CITY OF
CALAPAN, CITY OF HIMAMAYLAN, CITY OF BATANGAS, CITY OF
BAIS, CITY OF CADIZ, and CITY OF TAGUM, Petitioners-InIntervention.

VELASCO, JR. J.:

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

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.5 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.6 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.7

G.R. No. 177499

December 21, 2009

LEAGUE OF CITIES OF THE PHILIPPINES (LCP) represented by LCP

National President JERRY P. TREAS, CITY OF ILOILO represented by
MAYOR JERRY P. TREAS, CITY OF CALBAYOG represented by
MAYOR MEL SENEN S. SARMIENTO, and JERRY P. TREAS in his
personal capacity as taxpayer, Petitioners,
vs.
COMMISSION ON ELECTIONS; MUNICIPALITY OF LAMITAN,
PROVINCE OF BASILAN; MUNICIPALITY OF TABUK, PROVINCE OF
KALINGA; MUNICIPALITY OF BAYUGAN, PROVINCE OF AGUSAN
DEL SUR; MUNICIPALITY OF BATAC, PROVINCE OF ILOCOS
NORTE; MUNICIPALITY OF MATI, PROVINCE OF DAVAO ORIENTAL;
and MUNICIPALITY OF GUIHULNGAN, PROVINCE OF NEGROS
ORIENTAL, Respondents.
CITY OF TARLAC, CITY OF SANTIAGO, CITY OF IRIGA, CITY OF
LIGAO, CITY OF LEGAZPI, CITY OF TAGAYTAY, CITY OF SURIGAO,
CITY OF BAYAWAN, CITY OF SILAY, CITY OF GENERAL SANTOS,
CITY OF ZAMBOANGA, CITY OF GINGOOG, CITY OF CAUAYAN,
CITY OF PAGADIAN, CITY OF SAN CARLOS, CITY OF SAN
FERNANDO, CITY OF TACURONG, CITY OF TANGUB, CITY OF
OROQUIETA, CITY OF URDANETA, CITY OF VICTORIAS, CITY OF
CALAPAN, CITY OF HIMAMAYLAN, CITY OF BATANGAS, CITY OF
BAIS, CITY OF CADIZ, and CITY OF TAGUM, Petitioners-InIntervention.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 178056

BACKGROUND
The consolidated petitions for prohibition commenced by the League of
Cities of the Philippines (LCP), City of Iloilo, City of Calbayog, and Jerry
P. Treas8 assail the constitutionality of the sixteen (16) laws,9 each
converting the municipality covered thereby into a city (cityhood laws,
hereinafter) and seek to enjoin the Commission on Elections (COMELEC)
from conducting plebiscites pursuant to subject laws.
By Decision10 dated November 18, 2008, the Court en banc, by a 6-5
vote, granted the petitions and nullified the sixteen (16) cityhood laws for
being violative of the Constitution, specifically its Section 10, Article X and
the equal protection clause.

December 21, 2009

LEAGUE OF CITIES OF THE PHILIPPINES (LCP) represented by LCP

National President JERRY P. TREAS, CITY OF ILOILO represented by
MAYOR JERRY P. TREAS, CITY OF CALBAYOG represented by
MAYOR MEL SENEN S. SARMIENTO, and JERRY P. TREAS in his
personal capacity as taxpayer, Petitioners,
vs.
PROVINCE OF AGUSAN DEL NORTE; MUNICIPALITY OF CARCAR,
PROVINCE OF CEBU; and MUNICIPALITY OF EL SALVADOR,
MISAMIS ORIENTAL, COMMISSION ON ELECTIONS; MUNICIPALITY
OF CABADBARAN,Respondents.
CITY OF TARLAC, CITY OF SANTIAGO, CITY OF IRIGA, CITY OF
LIGAO, CITY OF LEGAZPI, CITY OF TAGAYTAY, CITY OF SURIGAO,
CITY OF BAYAWAN, CITY OF SILAY, CITY OF GENERAL SANTOS,
CITY OF ZAMBOANGA, CITY OF GINGOOG, CITY OF CAUAYAN,
CITY OF PAGADIAN, CITY OF SAN CARLOS, CITY OF SAN
FERNANDO, CITY OF TACURONG, CITY OF TANGUB, CITY OF
OROQUIETA, CITY OF URDANETA, CITY OF VICTORIAS, CITY OF
CALAPAN, CITY OF HIMAMAYLAN, CITY OF BATANGAS, CITY OF
BAIS, CITY OF CADIZ, and CITY OF TAGUM, Petitioners-InIntervention.
DECISION

Ratio legis est anima. The spirit rather than the letter of the law. A statute
must be read according to its spirit or intent,1 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.2 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.3 Withal, courts ought not to interpret and should not accept
an interpretation that would defeat the intent of the law and its
legislators.4

Subsequently, respondent local government units (LGUs) moved for

reconsideration, raising, as one of the issues, the validity of the factual
premises not contained in the pleadings of the parties, let alone
established, which became the bases of the Decision subject of
reconsideration.11 By Resolution of March 31, 2009, a divided Court
denied the motion for reconsideration.
A second motion for reconsideration followed in which respondent LGUs
prayed as follows:
WHEREFORE, respondents respectfully pray that the Honorable Court
reconsider its "Resolution" dated March 31, 2009, in so far as it denies for
"lack of merit" respondents "Motion for Reconsideration" dated
December 9, 2008 and in lieu thereof, considering that new and
meritorious arguments are raised by respondents "Motion for
Reconsideration" dated December 9, 2008 to grant afore-mentioned
"Motion for Reconsideration" dated December 9, 2008 and dismiss the
"Petitions For Prohibition" in the instant case.
Per Resolution dated April 28, 2009, the Court, voting 6-6, disposed of
the motion as follows:

By a vote of 6-6, the Motion for Reconsideration of the Resolution of 31

March 2009 is DENIED for lack of merit. The motion is denied since there
is no majority that voted to overturn the Resolution of 31 March 2009.
The Second Motion for Reconsideration of the Decision of 18 November
2008 is DENIED for being a prohibited pleading, and the Motion for
Leave to Admit Attached Petition in Intervention x x x filed by counsel for
Ludivina T. Mas, et al. are also DENIED. No further pleadings shall be
entertained. Let entry of judgment be made in due course. x x x
On May 14, 2009, respondent LGUs filed a Motion to Amend the
Resolution of April 28, 2009 by Declaring Instead that Respondents
"Motion for Reconsideration of the Resolution of March 31, 2009" and
"Motion for Leave to File and to Admit Attached Second Motion for
Reconsideration of the Decision Dated November 18, 2008 Remain
Unresolved and to Conduct Further Proceedings Thereon."
Per its Resolution of June 2, 2009, the Court declared the May 14, 2009
motion adverted to as expunged in light of the entry of judgment made on
May 21, 2009. Justice Leonardo-De Castro, however, taking common
cause with Justice Bersamin to grant the motion for reconsideration of the
April 28, 2009 Resolution and to recall the entry of judgment, stated the
observation, and with reason, that the entry was effected "before the
Court could act on the aforesaid motion which was filed within the 15-day
period counted from receipt of the April 28, 2009 Resolution."12
Forthwith, respondent LGUs filed a Motion for Reconsideration of the
Resolution of June 2, 2009 to which some of the petitioners and
petitioners-in-intervention filed their respective comments. The Court will
now rule on this incident. But first, we set and underscore some basic
premises:
(1) The initial motion to reconsider the November 18, 2008 Decision, as
Justice Leonardo-De Castro noted, indeed raised new and substantial
issues, inclusive of the matter of the correctness of the factual premises
upon which the said decision was predicated. The 6-6 vote on the motion
for reconsideration per the Resolution of March 31, 2009, which denied
the motion on the sole ground that "the basic issues have already been
passed upon" reflected a divided Court on the issue of whether or not the
underlying Decision of November 18, 2008 had indeed passed upon the
basic issues raised in the motion for reconsideration of the said decision;
(2) The aforesaid May 14, 2009 Motion to Amend Resolution of April 28,
2009 was precipitated by the tie vote which served as basis for the
issuance of said resolution. This May 14, 2009 motionwhich mainly
argued that a tie vote is inadequate to declare a law unconstitutional
remains unresolved; and
(3) Pursuant to Sec. 4(2), Art. VIII of the Constitution, all cases involving
the constitutionality of a law shall be heard by the Court en banc and
decided with the concurrence of a majority of the Members who actually
took part in the deliberations on the issues in the case and voted thereon.
The basic issue tendered in this motion for reconsideration of the June 2,
2009 Resolution boils down to whether or not the required vote set forth
in the aforesaid Sec. 4(2), Art. VIII is limited only to the initial vote on the
petition or also to the subsequent voting on the motion for reconsideration
where the Court is called upon and actually votes on the constitutionality
of a law or like issuances. Or, as applied to this case, would a minute
resolution dismissing, on a tie vote, a motion for reconsideration on the
sole stated groundthat the "basic issues have already been passed"
suffice to hurdle the voting requirement required for a declaration of the
unconstitutionality of the cityhood laws in question?
The 6-6 vote on the motion to reconsider the Resolution of March 31,
2009, which denied the initial motion on the sole ground that "the basic
issues had already been passed upon" betrayed an evenly divided Court
on the issue of whether or not the underlying Decision of November 18,

2008 had indeed passed upon the issues raised in the motion for
reconsideration of the said decision. But at the end of the day, the single
issue that matters and the vote that really counts really turn on the
constitutionality of the cityhood laws. And be it remembered that the
inconclusive 6-6 tie vote reflected in the April 28, 2009 Resolution was
the last vote on the issue of whether or not the cityhood laws infringe the
Constitution. Accordingly, the motions of the respondent LGUs, in light of
the 6-6 vote, should be deliberated anew until the required concurrence
on the issue of the validity or invalidity of the laws in question is, on the
merits, secured.
It ought to be clear that a deadlocked vote does not reflect the "majority
of the Members" contemplated in Sec. 4 (2) of Art. VIII of the Constitution,
which requires that:
All cases involving the constitutionality of a treaty, international or
executive agreement, or law shall be heard by the Supreme Court en
banc, x x x shall be decided with the concurrence of a majority of the
Members who actually took part in the deliberations on the issues in the
case and voted thereon. (Emphasis added.)
Webster defines "majority" as "a number greater than half of a total."13 In
plain language, this means 50% plus one. In Lambino v. Commission on
Elections, Justice, now Chief Justice, Puno, in a separate opinion,
expressed the view that "a deadlocked vote of six (6) is not a majority and
a non-majority cannot write a rule with precedential value."14
As may be noted, the aforequoted Sec. 4 of Art. VIII, as couched, exacts
a majority vote in the determination of a case involving the
constitutionality of a statute, without distinguishing whether such
determination is made on the main petition or thereafter on a motion for
reconsideration. This is as it should be, for, to borrow from the late
Justice Ricardo J. Francisco: "x x x [E]ven assuming x x x that the
constitutional requirement on the concurrence of the majority was
initially reached in the x x x ponencia, the same is inconclusive as it was
still open for review by way of a motion for reconsideration."15
To be sure, the Court has taken stock of the rule on a tie-vote situation,
i.e., Sec. 7, Rule 56 and the complementary A.M. No. 99-1-09- SC,
respectively, providing that:
SEC. 7. Procedure if opinion is equally divided. Where the court en
banc is equally divided in opinion, or the necessary majority cannot be
had, the case shall again be deliberated on, and if after such deliberation
no decision is reached, the original action commenced in the court shall
be dismissed; in appealed cases, the judgment or order appealed from
shall stand affirmed; and on all incidental matters, the petition or motion
shall be denied.
A.M. No. 99-1-09-SC x x x A motion for reconsideration of a decision or
resolution of the Court En Banc or of a Division may be granted upon a
vote of a majority of the En Banc or of a Division, as the case may be,
who actually took part in the deliberation of the motion.
If the voting results in a tie, the motion for reconsideration is deemed
denied.
But since the instant cases fall under Sec. 4 (2), Art. VIII of the
Constitution, the aforequoted provisions ought to be applied in
conjunction with the prescription of the Constitution that the cases "shall
be decided with the concurrence of a majority of the Members who
actually took part in the deliberations on the issues in the instant cases
and voted thereon." To repeat, the last vote on the issue of the
constitutionality of the cityhood bills is that reflected in the April 28, 2009
Resolutiona 6-6 deadlock.
On the postulate then that first, the finality of the November 18, 2008
Decision has yet to set in, the issuance of the precipitate16 entry of

judgment notwithstanding, and second, the deadlocked vote on the

second motion for reconsideration did not definitely settle the
constitutionality of the cityhood laws, the Court is inclined to take another
hard look at the underlying decision. Without belaboring in their smallest
details the arguments for and against the procedural dimension of this
disposition, it bears to stress that the Court has the power to suspend its
own rules when the ends of justice would be served thereby.17 In the
performance of their duties, courts should not be shackled by stringent
rules which would result in manifest injustice. Rules of procedure are only
tools crafted to facilitate the attainment of justice. Their strict and rigid
application must be eschewed, if they result in technicalities that tend to
frustrate rather than promote substantial justice. Substantial rights must
not be prejudiced by a rigid and technical application of the rules in the
altar of expediency. When a case is impressed with public interest, a
relaxation of the application of the rules is in order.18 Time and again,
this Court has suspended its own rules or excepted a particular case from
their operation whenever the higher interests of justice so require.19

Then came the 13th Congress (July 2004 to June 2007), which saw the
House of Representatives re-adopting H. Joint Resolution No. 29 as H.
Joint Resolution No. 1 and forwarding it to the Senate for approval.

While perhaps not on all fours with the case, because it involved a purely
business transaction, what the Court said in Chuidian v.
Sandiganbayan20 is most apropos:

As of June 7, 2007, both Houses of Congress had approved the

individual cityhood bills, all of which eventually lapsed into law on various
dates. Each cityhood law directs the COMELEC, within thirty (30) days
from its approval, to hold a plebiscite to determine whether the voters
approve of the conversion.

To reiterate what the Court has said in Ginete vs. Court of Appeals and
other cases, the rules of procedure should be viewed as mere
instruments designed to facilitate the attainment of justice. They are not
to be applied with severity and rigidity when such application would
clearly defeat the very rationale for their conception and existence. Even
the Rules of Court reflects this principle. The power to suspend or even
disregard rules, inclusive of the one-motion rule, can be so pervasive and
compelling as to alter even that which this Court has already declared to
be final. The peculiarities of this case impel us to do so now.
The Court, by a vote of 6-4, grants the respondent LGUs motion for
reconsideration of the Resolution of June 2, 2009, as well as their May
14, 2009 motion to consider the second motion for reconsideration of the
November 18, 2008 Decision unresolved, and also grants said second
motion for reconsideration.
This brings us to the substantive aspect of the case.

The Senate, however, again failed to approve the joint resolution. During
the Senate session held on November 6, 2006, Senator Aquilino
Pimentel, Jr. asserted that passing H. Resolution No. 1 would, in net
effect, allow a wholesale exemption from the income requirement
imposed under RA 9009 on the municipalities. For this reason, he
suggested the filing by the House of Representatives of individual bills to
pave the way for the municipalities to become cities and then forwarding
them to the Senate for proper action.25
Heeding the advice, sixteen (16) municipalities filed, through their
respective sponsors, individual cityhood bills. Common to all 16
measures was a provision exempting the municipality covered from the
PhP 100 million income requirement.

As earlier stated, the instant petitions seek to declare the cityhood laws
unconstitutional for violation of Sec. 10, Art. X of the Constitution, as well
as for violation of the equal-protection clause. The wholesale conversion
of municipalities into cities, the petitioners bemoan, will reduce the share
of existing cities in the Internal Revenue Allotment (IRA), since more
cities will partake of the internal revenue set aside for all cities under Sec.
285 of the LGC of 1991.26
Petitioners-in-intervention, LPC members themselves, would later seek
leave and be allowed to intervene.
Aside from their basic plea to strike down as unconstitutional the cityhood
laws in question, petitioners and petitioners-in-intervention collectively
pray that an order issue enjoining the COMELEC from conducting
plebiscites in the affected areas. An alternative prayer would urge the
Court to restrain the poll body from proclaiming the plebiscite results.

The Undisputed Factual Antecedents in Brief

During the 11th Congress,21 fifty-seven (57) cityhood bills were filed
before the House of Representatives.22 Of the fifty-seven (57), thirtythree (33) eventually became laws. The twenty-four (24) other bills were
not acted upon.
Later developments saw the introduction in the Senate of Senate Bill (S.
Bill) No. 215723 to amend Sec. 450 of Republic Act No. (RA) 7160,
otherwise known as the Local Government Code (LGC) of 1991. The
proposed amendment sought to increase the income requirement to
qualify for conversion into a city from PhP 20 million average annual
income to PhP 100 million locally generated income.
In March 2001, S. Bill No. 2157 was signed into law as RA 9009 to take
effect on June 30, 2001. As thus amended by RA 9009, Sec. 450 of the
LGC of 1991 now provides that "[a] municipality x x x may be converted
into a component city if it has a [certified] locally generated average
annual income x x x of at least [PhP 100 million] for the last two (2)
consecutive years based on 2000 constant prices."

On July 24, 2007, the Court en banc resolved to consolidate the petitions
and the petitions-in-intervention. On March 11, 2008, it heard the parties
in oral arguments.
The Issues
In the main, the issues to which all others must yield pivot on whether or
not the cityhood laws violate (1) Sec. 10. Art. X of the Constitution and (2)
the equal protection clause.
In the November 18, 2008 Decision granting the petitions, Justice Antonio
T. Carpio, for the Court, resolved the twin posers in the affirmative and
accordingly declared the cityhood laws unconstitutional, deviating as they
do from the uniform and non-discriminatory income criterion prescribed
by the LGC of 1991. In so doing, the ponencia veritably agreed with the
petitioners that the Constitution, in clear and unambiguous language,
requires that all the criteria for the creation of a city shall be embodied
and written in the LGC, and not in any other law.
After a circumspect reflection, the Court is disposed to reconsider.

After the effectivity of RA 9009, the Lower House of the 12th Congress
adopted in July 2001 House (H.) Joint Resolution No. 2924 which, as its
title indicated, sought to exempt from the income requirement prescribed
in RA 9009 the 24 municipalities whose conversions into cities were not
acted upon during the previous Congress. The 12th Congress ended
without the Senate approving H. Joint Resolution No. 29.

Petitioners threshold posture, characterized by a strained interpretation

of the Constitution, if accorded cogency, would veritably curtail and
cripple Congress valid exercise of its authority to create political
subdivisions.

By constitutional design27 and as a matter of long-established principle,

the power to create political subdivisions or LGUs is essentially legislative
in character.28 But even without any constitutional grant, Congress can,
by law, create, divide, merge, or altogether abolish or alter the
boundaries of a province, city, or municipality. We said as much in the
fairly recent case, Sema v. CIMELEC.29 The 1987 Constitution, under its
Art. X, Sec. 10, nonetheless provides for the creation of LGUs, thus:
Section 10. No province, city, municipality, or barangay shall be created,
divided, merged, abolished, or its boundary substantially altered, except
in accordance with the criteria established in the local government code
and subject to approval by a majority of the votes cast in a plebiscite in
the political units directly affected. (Emphasis supplied.)
As may be noted, the afore-quoted provision specifically provides for the
creation of political subdivisions "in accordance with the criteria
established in the local government code," subject to the approval of the
voters in the unit concerned. The criteria referred to are the verifiable
indicators of viability, i.e., area, population, and income, now set forth in
Sec. 450 of the LGC of 1991, as amended by RA 9009. The petitioners
would parlay the thesis that these indicators or criteria must be written
only in the LGC and not in any other statute. Doubtless, the code they are
referring to is the LGC of 1991. Pushing their point, they conclude that
the cityhood laws that exempted the respondent LGUs from the income
standard spelled out in the amendatory RA 9009 offend the Constitution.
Petitioners posture does not persuade.
The supposedly infringed Art. X, Sec. 10 is not a new constitutional
provision. Save for the use of the term "barrio" in lieu of "barangay," "may
be" instead of "shall," the change of the phrase "unit or units" to "political
unit" and the addition of the modifier "directly" to the word "affected," the
aforesaid provision is a substantial reproduction of Art. XI, Sec. 3 of the
1973 Constitution, which reads:
Section 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 approval by a majority of the votes cast in a plebiscite in
the unit or units affected. (Emphasis supplied.)
It bears notice, however, that the "code" similarly referred to in the 1973
and 1987 Constitutions is clearly but a law Congress enacted. This is
consistent with the aforementioned plenary power of Congress to create
political units. Necessarily, since Congress wields the vast poser of
creating political subdivisions, surely it can exercise the lesser authority
of requiring a set of criteria, standards, or ascertainable indicators of
viability for their creation. Thus, the only conceivable reason why the
Constitution employs the clause "in accordance with the criteria
established in the local government code" is to lay stress that it is
Congress alone, and no other, which can impose the criteria. The
eminent constitutionalist, Fr. Joaquin G. Bernas, S.J., in his treatise on
Constitutional Law, specifically on the subject provision, explains:
Prior to 1965, there was a certain lack of clarity with regard to the power
to create, divide, merge, dissolve, or change the boundaries of municipal
corporations. The extent to which the executive may share in this power
was obscured by Cardona v. Municipality of Binangonan.30 Pelaez v.
Auditor General subsequently clarified the Cardona case when the
Supreme Court said that "the authority to create municipal corporations is
essentially legislative in nature."31 Pelaez, however, conceded that "the
power to fix such common boundary, in order to avoid or settle conflicts
of jurisdiction between adjoining municipalities, may partake of an
administrative nature-involving as it does, the adoption of means and
ways to carry into effect the law creating said municipalities."32 Pelaez
was silent about division, merger, and dissolution of municipal
corporations. But since division in effect creates a new municipality, and

both dissolution and merger in effect abolish a legal creation, it may fairly
be inferred that these acts are also legislative in nature.
Section 10 [Art. X of the 1987 Constitution], which is a legacy from the
1973 Constitution, goes further than the doctrine in the Pelaez case. It
not only makes creation, division, merger, abolition or substantial
alteration of boundaries of provinces, cities, municipalities x x x subject to
"criteria established in the local government code,"thereby declaring
these actions properly legislative, but it also makes creation, division,
merger, abolition or substantial alteration of boundaries "subject to
approval by a majority of the votes cast in a plebiscite in the political units
directly affected."33 x x x (Emphasis added.)
It remains to be observed at this juncture that when the 1987 Constitution
speaks of the LGC, the reference cannot be to any specific statute or
codification of laws, let alone the LGC of 1991.34 Be it noted that at the
time of the adoption of the 1987 Constitution, Batas Pambansa Blg. (BP)
337, the then LGC, was still in effect. Accordingly, had the framers of the
1987 Constitution intended to isolate the embodiment of the criteria only
in the LGC, then they would have actually referred to BP 337. Also, they
would then not have provided for the enactment by Congress of a new
LGC, as they did in Art. X, Sec. 335 of the Constitution.
Consistent with its plenary legislative power on the matter, Congress can,
via either a consolidated set of laws or a much simpler, single-subject
enactment, impose the said verifiable criteria of viability. These criteria
need not be embodied in the local government code, albeit this code is
the ideal repository to ensure, as much as possible, the element of
uniformity. Congress can even, after making a codification, enact an
amendatory law, adding to the existing layers of indicators earlier
codified, just as efficaciously as it may reduce the same. In this case, the
amendatory RA 9009 upped the already codified income requirement
from PhP 20 million to PhP 100 million. At the end of the day, the
passage of amendatory laws is no different from the enactment of laws,
i.e., the cityhood laws specifically exempting a particular political
subdivision from the criteria earlier mentioned. Congress, in enacting the
exempting law/s, effectively decreased the already codified indicators.
Petitioners theory that Congress must provide the criteria solely in the
LGC and not in any other law strikes the Court as illogical. For if we
pursue their contention to its logical conclusion, then RA 9009 embodying
the new and increased income criterion would, in a way, also suffer the
vice of unconstitutionality. It is startling, however, that petitioners do not
question the constitutionality of RA 9009, as they in fact use said law as
an argument for the alleged unconstitutionality of the cityhood laws.
As it were, Congress, through the medium of the cityhood laws, validly
decreased the income criterion vis--vis the respondent LGUs, but
without necessarily being unreasonably discriminatory, as shall be
discussed shortly, by reverting to the PhP 20 million threshold what it
earlier raised to PhP 100 million. The legislative intent not to subject
respondent LGUs to the more stringent requirements of RA 9009 finds
expression in the following uniform provision of the cityhood laws:
Exemption from Republic Act No. 9009. The City of x x x shall be
exempted from the income requirement prescribed under Republic Act
No. 9009.
In any event, petitioners constitutional objection would still be untenable
even if we were to assume purely ex hypothesi the correctness of their
underlying thesis, viz: that the conversion of a municipality to a city shall
be in accordance with, among other things, the income criterion set forth
in the LGC of 1991, and in no other; otherwise, the conversion is invalid.
We shall explain.
Looking at the circumstances behind the enactment of the laws subject of
contention, the Court finds that the LGC-amending RA 9009, no less,
intended the LGUs covered by the cityhood laws to be exempt from the

PhP 100 million income criterion. In other words, the cityhood laws, which
merely carried out the intent of RA 9009, adhered, in the final analysis, to
the "criteria established in the Local Government Code," pursuant to Sec.
10, Art. X of the 1987 Constitution. We shall now proceed to discuss this
exemption angle.36
Among the criteria established in the LGC pursuant to Sec.10, Art. X of
the 1987 Constitution are those detailed in Sec. 450 of the LGC of 1991
under the heading "Requisites for Creation." The section sets the
minimum income qualifying bar before a municipality or a cluster of
barangays may be considered for cityhood. Originally, Sec. 164 of BP
337 imposed an average regular annual income "of at least ten million
pesos for the last three consecutive years" as a minimum income
standard for a municipal-to-city conversion. The LGC that BP 337
established was superseded by the LGC of 1991 whose then Sec. 450
provided that "[a] municipality or cluster of barangays may be converted
into a component city if it has an average annual income, x x x of at least
twenty million pesos (P20,000,000.00) for at least two (2) consecutive
years based on 1991 constant prices x x x." RA 9009 in turn amended
said Sec. 450 by further increasing the income requirement to PhP 100
million, thus:
Section 450. Requisites for Creation. (a) A municipality or a cluster
of barangays may be converted into a component city if it has a locally
generated average annual income, as certified by the Department of
Finance, of at least One Hundred Million Pesos (P100,000,000.00) for the
last two (2) consecutive years based on 2000 constant prices, and if it
has either of the following requisites:
xxxx
(c) The average annual income shall include the income accruing to the
general fund, exclusive of special funds, transfers, and non-recurring
income. (Emphasis supplied.)
The legislative intent is not at all times accurately reflected in the manner
in which the resulting law is couched. Thus, applying a verba legis37 or
strictly literal interpretation of a statute may render it meaningless and
lead to inconvenience, an absurd situation or injustice.38 To obviate this
aberration, and bearing in mind the principle that the intent or the spirit of
the law is the law itself,39 resort should be to the rule that the spirit of the
law controls its letter.40
It is in this respect that the history of the passage of RA 9009 and the
logical inferences derivable therefrom assume relevancy in discovering
legislative intent.41
The rationale behind the enactment of RA 9009 to amend Sec. 450 of the
LGC of 1991 can reasonably be deduced from Senator Pimentels
sponsorship speech on S. Bill No. 2157. Of particular significance is his
statement regarding the basis for the proposed increase from PhP 20
million to PhP 100 million in the income requirement for municipalities
wanting to be converted into cities, viz:

the right to be converted into a city, and the P100 million should be
sourced from locally generated funds.
Congress to be sure knew, when RA 9009 was being deliberated upon,
of the pendency of several bills on cityhood, wherein the applying
municipalities were qualified under the then obtaining PhP 20 millionincome threshold. These included respondent LGUs. Thus, equally
noteworthy is the ensuing excerpts from the floor exchange between then
Senate President Franklin Drilon and Senator Pimentel, the latter
stopping short of saying that the income threshold of PhP 100 million
under S. Bill No. 2157 would not apply to municipalities that have pending
cityhood bills, thus:
THE PRESIDENT. The Chair would like to ask for some clarificatory
point. x x x
THE PRESIDENT. This is just on the point of the pending bills in the
Senate which propose the conversion of a number of municipalities into
cities and which qualify under the present standard.
We would like to know the view of the sponsor: Assuming that this bill
becomes a law, will the Chamber apply the standard as proposed in this
bill to those bills which are pending for consideration?
SENATOR PIMENTEL, Mr. President, it might not be fair to make this bill
x x x [if] approved, retroact to the bills that are pending in the Senate for
conversion from municipalities to cities.
THE PRESIDENT. Will there be an appropriate language crafted to
reflect that view? Or does it not become a policy of the Chamber,
assuming that this bill becomes a law x x x that it will apply to those bills
which are already approved by the House under the old version of the
[LGC] and are now pending in the Senate? The Chair does not know if
we can craft a language which will limit the application to those which are
not yet in the Senate. Or is that a policy that the Chamber will adopt?
SENATOR PIMENTEL. Mr. President, personally, I do not think it is
necessary to put that provision because what we are saying here will
form part of the interpretation of this bill. Besides, if there is no
retroactivity clause, I do not think that the bill would have any retroactive
effect.
THE PRESIDENT. So the understanding is that those bills which are
already pending in the Chamber will not be affected.
SENATOR PIMENTEL. These will not be affected, Mr.
President.42 (Emphasis and underscoring supplied.)
What the foregoing Pimental-Drilon exchange eloquently indicates are
the following complementary legislative intentions: (1) the then pending
cityhood bills would be outside the pale of the minimum income
requirement of PhP 100 million that S. Bill No. 2159 proposes; and (2) RA
9009 would not have any retroactive effect insofar as the cityhood bills
are concerned.

Senator Pimentel. Mr. President, I would have wanted this bill to be

included in the whole set of proposed amendments that we have
introduced to precisely amend the [LGC]. However, it is a fact that there
is a mad rush of municipalities wanting to be converted into cities.
Whereas in 1991, when the [LGC] was approved, there were only 60
cities, today the number has increased to 85 cities, with 41 more
municipalities applying for conversion x x x. At the rate we are going, I am
apprehensive that before long this nation will be a nation of all cities and
no municipalities.

Given the foregoing perspective, it is not amiss to state that the basis for
the inclusion of the exemption clause of the cityhood laws is the clear-cut
intent of Congress of not according retroactive effect to RA 9009. Not
only do the congressional records bear the legislative intent of exempting
the cityhood laws from the income requirement of PhP 100 million.
Congress has now made its intention to exempt express in the
challenged cityhood laws.

It is for that reason, Mr. President, that we are proposing among other
things, that the financial requirement, which, under the [LGC], is fixed
at P20 million, be raised to P100 million to enable a municipality to have

Legislative intent is part and parcel of the law, the controlling factor in
interpreting a statute. In construing a statute, the proper course is to start
out and follow the true intent of the Legislature and to adopt the sense
that best harmonizes with the context and promotes in the fullest manner
the policy and objects of the legislature.43 In fact, any interpretation that

runs counter to the legislative intent is unacceptable and invalid.44 Torres

v. Limjapcould not have been more precise:
The intent of a Statute is the Law. If a statute is valid, it is to have effect
according to the purpose and intent of the lawmaker. The intent is x x
x the essence of the law and the primary rule of construction is to
ascertain and give effect to that intent. The intention of the legislature in
enacting a law is the law itself, and must be enforced when
ascertained, although it may not be consistent with the strict letter of the
statute. Courts will not follow the letter of a statute when it leads away
from the true intent and purpose of the legislature and to conclusions
inconsistent with the general purpose of the act. Intent is the spirit which
gives life to a legislative enactment. In construing statutes the proper
course is to start out and follow the true intent of the legislature x x
x.45 (Emphasis supplied.)
As emphasized at the outset, behind every law lies the presumption of
constitutionality.46 Consequently, to him who would assert the
unconstitutionality of a statute belongs the burden of proving otherwise.
Laws will only be declared invalid if a conflict with the Constitution is
beyond reasonable doubt.47 Unfortunately for petitioners and petitionersin-intervention, they failed to discharge their heavy burden.
It is contended that the deliberations on the cityhood bills and the
covering joint resolution were undertaken in the 11th and/or the 12th
Congress. Accordingly, so the argument goes, such deliberations, more
particularly those on the unapproved resolution exempting from RA 9009
certain municipalities, are without significance and would not qualify as
extrinsic aids in construing the cityhood laws that were passed during the
13th Congress, Congress not being a continuing body.
The argument is specious and glosses over the reality that the cityhood
billswhich were already being deliberated upon even perhaps before
the conception of RA 9009were again being considered during the
13th Congress after being tossed around in the two previous
Congresses. And specific reference to the cityhood bills was also made
during the deliberations on RA 9009. At the end of the day, it is really
immaterial if Congress is not a continuing legislative body. What is
important is that the debates, deliberations, and proceedings of Congress
and the steps taken in the enactment of the law, in this case the cityhood
laws in relation to RA 9009 or vice versa, were part of its legislative
history and may be consulted, if appropriate, as aids in the interpretation
of the law.48And of course the earlier cited Drilon-Pimentel exchange on
whether or not the 16 municipalities in question would be covered by RA
9009 is another vital link to the historical chain of the cityhood bills. This
and other proceedings on the bills are spread in the Congressional
journals, which cannot be conveniently reduced to pure rhetoric without
meaning whatsoever, on the simplistic and non-sequitur pretext that
Congress is not a continuing body and that unfinished business in either
chamber is deemed terminated at the end of the term of Congress.
This brings us to the challenge to the constitutionality of cityhood laws on
equal protection grounds.
To the petitioners, the cityhood laws, by granting special treatment to
respondent municipalities/LGUs by way of exemption from the standard
PhP 100 million minimum income requirement, violate Sec.1, Art. III of
the Constitution, which in part provides that no person shall "be denied
the equal protection of the laws."
Petitioners challenge is not well taken. At its most basic, the equal
protection clause proscribes undue favor as well as hostile discrimination.
Hence, a law need not operate with equal force on all persons or things
to be conformable with Sec. 1, Art. III of the Constitution.
The equal protection guarantee is embraced in the broader and elastic
concept of due process, every unfair discrimination being an offense
against the requirements of justice and fair play. It has nonetheless come

as a separate clause in Sec. 1, Art. III of the Constitution to provide for a

more specific protection against any undue discrimination or antagonism
from government. Arbitrariness in general may be assailed on the basis
of the due process clause. But if a particular challenged act partakes of
an unwarranted partiality or prejudice, the sharper weapon to cut it down
is the equal protection clause.49 This constitutional protection extends to
all persons, natural or artificial, within the territorial jurisdiction. Artificial
persons, as the respondent LGUs herein, are, however, entitled to
protection only insofar as their property is concerned.50
In the proceedings at bar, petitioner LCP and the intervenors cannot
plausibly invoke the equal protection clause, precisely because no
deprivation of property results by virtue of the enactment of the cityhood
laws. The LCPs claim that the IRA of its member-cities will be
substantially reduced on account of the conversion into cities of the
respondent LGUs would not suffice to bring it within the ambit of the
constitutional guarantee. Indeed, it is presumptuous on the part of the
LCP member-cities to already stake a claim on the IRA, as if it were their
property, as the IRA is yet to be allocated. For the same reason, the
municipalities that are not covered by the uniform exemption clause in the
cityhood laws cannot validly invoke constitutional protection. For, at this
point, the conversion of a municipality into a city will only affect its status
as a political unit, but not its property as such.
As a matter of settled legal principle, the fundamental right of equal
protection does not require absolute equality. It is enough that all persons
or things similarly situated should be treated alike, both as to rights or
privileges conferred and responsibilities or obligations imposed. The
equal protection clause does not preclude the state from recognizing and
acting upon factual differences between individuals and classes. It
recognizes that inherent in the right to legislate is the right to
classify,51 necessarily implying that the equality guaranteed is not
violated by a legislation based on reasonable classification.
Classification, to be reasonable, must (1) rest on substantial distinctions;
(2) be germane to the purpose of the law; (3) not be limited to existing
conditions only; and (4) apply equally to all members of the same
class.52 The Court finds that all these requisites have been met by the
laws challenged as arbitrary and discriminatory under the equal
protection clause.
As things stand, the favorable treatment accorded the sixteen (16)
municipalities by the cityhood laws rests on substantial distinction.
Indeed, respondent LGUs, which are subjected only to the erstwhile PhP
20 million income criterion instead of the stringent income requirement
prescribed in RA 9009, are substantially different from other
municipalities desirous to be cities. Looking back, we note that
respondent LGUs had pending cityhood bills before the passage of RA
9009. There lies part of the tipping difference. And years before the
enactment of the amendatory RA 9009, respondents LGUs had already
met the income criterion exacted for cityhood under the LGC of 1991.
Due to extraneous circumstances, however, the bills for their conversion
remained unacted upon by Congress. As aptly observed by then Senator,
now Manila Mayor, Alfredo Lim in his speech sponsoring H. Joint
Resolution No. 1, or the cityhood bills, respondent LGUs saw themselves
confronted with the "changing of the rules in the middle of the game."
Some excerpts of Senator Lims sponsorship speech:
x x x [D]uring the Eleventh Congress, fifty-seven (57) municipalities
applied for city status, confident that each has met the requisites for
conversion under Section 450 of the [LGC], particularly the income
threshold of P20 million. Of the 57 that filed, thirty-two (32) were enacted
into law; x x x while the rest twenty-four (24) in all failed to pass
through Congress. Shortly before the long recess of Congress in
February 2001, to give way to the May elections x x x, Senate Bill No.
2157, which eventually became [RA] 9009, was passed into law,
effectively raising the income requirement for creation of cities to a
whooping P100 million x x x. Much as the proponents of the 24 cityhood
bills then pending struggled to beat the effectivity of the law on June 30,

2001, events that then unfolded were swift and overwhelming that
Congress just did not have the time to act on the measures.
Some of these intervening events were x x x the impeachment of
President Estrada x x x and the May 2001 elections.
The imposition of a much higher income requirement for the creation of a
city x x x was unfair; like any sport changing the rules in the middle of
the game.
Undaunted, they came back during the [12th] Congress x x x. They filed
House Joint Resolution No. 29 seeking exemption from the higher
income requirement of RA 9009. For the second time, [however], time ran
out from them.
For many of the municipalities whose Cityhood Bills are now under
consideration, this year, at the closing days of the [13th] Congress, marks
their ninth year appealing for fairness and justice. x x x
I, for one, share their view that fairness dictates that they should be given
a legal remedy by which they could be allowed to prove that they have all
the necessary qualifications for city status using the criteria set forth
under the [LGC] prior to its amendment by RA 9009. Hence, when House
Joint Resolution No. 1 reached the Senate x x x I immediately set the
public hearing x x x. On July 25, 2006, I filed Committee Report No. 84 x
x x. On September 6, I delivered the sponsorship x x x.
x x x By November 14, the measure had reverted to the period of
individual amendments. This was when the then acting majority leader, x
x x informed the Body that Senator Pimentel and the proponents of
House Joint Resolution No. 1 have agreed to the proposal of the Minority
Leader for the House to first approve the individual Cityhood Bills of the
qualified municipalities, along with the provision exempting each of them
from the higher income requirement of RA 9009. x x x This led to the
certification issued by the proponents short-listing fourteen (14)
municipalities deemed to be qualified for city-status.
Acting on the suggestion of Senator Pimentel, the proponents lost no
time in working for the approval by the House of Representatives of their
individual Cityhood Bills, each containing a provision of exemption from
the higher income requirement of RA 9009. On the last session day of
last year, December 21, the House transmitted to the Senate the
Cityhood Bills of twelve out of the 14 pre-qualified municipalities. Your
Committee immediately conducted the public hearing x x x.
The whole process I enumerated [span] three Congresses x x x.
In essence, the Cityhood Bills now under consideration will have the
same effect as that of House Joint Resolution No. 1 because each of the
12 bills seeks exemption from the higher income requirement of RA 9009.
The proponents are invoking the exemption on the basis of justice and
fairness.
Each of the 12 municipalities has all the requisites for conversion into a
component city based on the old requirements set forth under Section
450 of the [LGC], prior to its amendment by RA 9009, namely: x x
x53(Emphasis supplied.)
In hindsight, the peculiar conditions, as depicted in Senator Lims speech,
which respondent LGUs found themselves in were unsettling. They were
qualified cityhood applicants before the enactment of RA 009. Because of
events they had absolutely nothing to do with, a spoiler in the form of RA
9009 supervened. Now, then, to impose on them the much higher income
requirement after what they have gone through would appear to be
indeed "unfair," to borrow from Senator Lim. Thus, the imperatives of
fairness dictate that they should be given a legal remedy by which they
would be allowed to prove that they have all the necessary qualifications
for city status, using the criteria set forth under the LGC of 1991 prior to

its amendment by RA 9009. Truly, the peculiar conditions of respondent

LGUs, which are actual and real, provide sufficient grounds for legislative
classification.
To be sure, courts, regardless of doubts they might be entertaining,
cannot question the wisdom of the congressional classification, if
reasonable, or the motivation underpinning the classification.54 By the
same token, they do not sit to determine the propriety or efficacy of the
remedies Congress has specifically chosen to extend. That is its
prerogative. The power of the Legislature to make distinctions and
classifications among persons is, to reiterate, neither curtailed nor denied
by the equal protection clause. A law can be violative of the constitutional
limitation only when the classification is without reasonable basis.
The classification is also germane to the purpose of the law. The
exemption of respondent LGUs/municipalities from the PhP 100 million
income requirement was meant to reduce the inequality occasioned by
the passage of the amendatory RA 9009. From another perspective, the
exemption was unquestionably designed to insure that fairness and
justice would be accorded respondent LGUs. Let it be noted that what
were then the cityhood bills covering respondent LGUs were part and
parcel of the original 57 conversion bills filed in the 11th Congress, 33 of
those became laws before the adjournment of that Congress. The then
bills of the challenged cityhood laws were not acted upon due, inter alia,
to the impeachment of then President Estrada, the related jueteng
scandal investigations conducted before, and the EDSA events that
followed the aborted impeachment.
While the equal protection guarantee frowns upon the creation of a
privileged class without justification, inherent in the equality clause is the
exhortation for the Legislature to pass laws promoting equality or
reducing existing inequalities. The enactment of the cityhood laws was in
a real sense an attempt on the part of Congress to address the inequity
dealt the respondent LGUs. These laws positively promoted the equality
and eliminated the inequality, doubtless unintended, between respondent
municipalities and the thirty-three (33) other municipalities whose
cityhood bills were enacted during the 11th Congress. Respondent
municipalities and the 33 other municipalities, which had already been
elevated to city status, were all found to be qualified under the old Sec.
450 of the LGC of 1991 during the 11th Congress. As such, both
respondent LGUs and the 33 other former municipalities are under like
circumstances and conditions. There is, thus, no rhyme or reason why an
exemption from the PhP 100 million requirement cannot be given to
respondent LGUs. Indeed, to deny respondent LGUs/municipalities the
same rights and privileges accorded to the 33 other municipalities when,
at the outset they were similarly situated, is tantamount to denying the
former the protective mantle of the equal protection clause. In effect,
petitioners and petitioners-in-intervention are creating an absurd situation
in which an alleged violation of the equal protection clause of the
Constitution is remedied by another violation of the same clause. The
irony is not lost to the Court.
Then too the non-retroactive effect of RA 9009 is not limited in application
only to conditions existing at the time of its enactment. It is intended to
apply for all time, as long as the contemplated conditions obtain. To be
more precise, the legislative intent underlying the enactment of RA 9009
to exclude would-be-cities from the PhP 100 million criterion would hold
sway, as long as the corresponding cityhood bill has been filed before the
effectivity of RA 9009 and the concerned municipality qualifies for
conversion into a city under the original version of Sec. 450 of the LGC of
1991.
Viewed in its proper light, the common exemption clause in the cityhood
laws is an application of the non-retroactive effect of RA 9009 on the
cityhood bills. It is not a declaration of certain rights, but a mere
declaration of prior qualification and/or compliance with the nonretroactive effect of RA 9009.

Lastly and in connection with the third requisite, the uniform exemption
clause would apply to municipalities that had pending cityhood bills
before the passage of RA 9009 and were compliant with then Sec. 450 of
the LGC of 1991, which prescribed an income requirement of PhP 20
million. It is hard to imagine, however, if there are still municipalities out
there belonging in context to the same class as the sixteen (16)
respondent LGUs. Municipalities that cannot claim to belong to the same
class as the 16 cannot seek refuge in the cityhood laws. The former have
to comply with the PhP 100 million income requirement imposed by RA
9009.
A final consideration. The existence of the cities consequent to the
approval of the creating, but challenged, cityhood laws in the plebiscites
held in the affected LGUs is now an operative fact. New cities appear to
have been organized and are functioning accordingly, with new sets of
officials and employees. Other resulting events need not be enumerated.
The operative fact doctrine provides another reason for upholding the
constitutionality of the cityhood laws in question.
In view of the foregoing discussion, the Court ought to abandon as it
hereby abandons and sets aside the Decision of November 18, 2008
subject of reconsideration. And by way of summing up the main
arguments in support of this disposition, the Court hereby declares the
following:
(1) Congress did not intend the increased income requirement in RA
9009 to apply to the cityhood bills which became the cityhood laws in
question. In other words, Congress intended the subject cityhood laws to
be exempted from the income requirement of PhP 100 million prescribed
by RA 9009;
(2) The cityhood laws merely carry out the intent of RA 9009, now Sec.
450 of the LGC of 1991, to exempt respondent LGUs from the PhP 100
million income requirement;
(3) The deliberations of the 11th or 12th Congress on unapproved bills or
resolutions are extrinsic aids in interpreting a law passed in the 13th
Congress. It is really immaterial if Congress is not a continuing body. The
hearings and deliberations during the 11th and 12th Congress may still
be used as extrinsic reference inasmuch as the same cityhood bills which
were filed before the passage of RA 9009 were being considered during
the 13th Congress. Courts may fall back on the history of a law, as here,
as extrinsic aid of statutory construction if the literal application of the law
results in absurdity or injustice.
(4) The exemption accorded the 16 municipalities is based on the fact
that each had pending cityhood bills long before the enactment of RA
9009 that substantially distinguish them from other municipalities aiming
for cityhood. On top of this, each of the 16 also met the PhP 20 million
income level exacted under the original Sec. 450 of the 1991 LGC.
And to stress the obvious, the cityhood laws are presumed constitutional.
As we see it, petitioners have not overturned the presumptive
constitutionality of the laws in question.
WHEREFORE, respondent LGUs Motion for Reconsideration dated June
2, 2009, their "Motion to Amend the Resolution of April 28, 2009 by
Declaring Instead that Respondents Motion for Reconsideration of the
Resolution of March 31, 2009 and Motion for Leave to File and to Admit
Attached Second Motion for Reconsideration of the Decision Dated
November 18, 2008 Remain Unresolved and to Conduct Further
Proceedings," dated May 14, 2009, and their second Motion for
Reconsideration of the Decision dated November 18, 2008
are GRANTED. The June 2, 2009, the March 31, 2009, and April 31,
2009 Resolutions are REVERSED and SET ASIDE. The entry of
judgment made on May 21, 2009 must accordingly be RECALLED.

The instant consolidated petitions and petitions-in-intervention

are DISMISSED. The cityhood laws, namely Republic Act Nos. 9389,
9390, 9391, 9392, 9393, 9394, 9398, 9404, 9405, 9407, 9408, 9409,
9434, 9435, 9436, and 9491 are
declared VALID and CONSTITUTIONAL.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 176951

August 24, 2010

LEAGUE OF CITIES OF THE PHILIPPINES (LCP) represented by LCP

National President JERRY P. TREAS, CITY OF ILOILO represented
by MAYOR JERRY P. TREAS, CITY OF CALBAYOG represented by
MAYOR MEL SENEN S. SARMIENTO, and JERRY P. TREAS in his
personal capacity as taxpayer, Petitioners,
vs.
COMMISSION ON ELECTIONS; MUNICIPALITY OF BAYBAY,
PROVINCE OF LEYTE; MUNICIPALITY OF BOGO, PROVINCE OF
CEBU; MUNICIPALITY OF CATBALOGAN, PROVINCE OF WESTERN
SAMAR; MUNICIPALITY OF TANDAG, PROVINCE OF SURIGAO DEL
SUR; MUNICIPALITY OF BORONGAN, PROVINCE OF EASTERN
SAMAR; and MUNICIPALITY OF TAYABAS, PROVINCE OF
QUEZON, Respondents.
CITY OF TARLAC, CITY OF SANTIAGO, CITY OF IRIGA, CITY OF
LIGAO, CITY OF LEGAZPI, CITY OF TAGAYTAY, CITY OF SURIGAO,
CITY OF BAYAWAN, CITY OF SILAY, CITY OF GENERAL SANTOS,
CITY OF ZAMBOANGA, CITY OF GINGOOG, CITY OF CAUAYAN,
CITY OF PAGADIAN, CITY OF SAN CARLOS, CITY OF SAN
FERNANDO, CITY OF TACURONG, CITY OF TANGUB, CITY OF
OROQUIETA, CITY OF URDANETA, CITY OF VICTORIAS, CITY OF
CALAPAN, CITY OF HIMAMAYLAN, CITY OF BATANGAS, CITY OF
BAIS, CITY OF CADIZ, and CITY OF TAGUM, Petitioners-InIntervention.
x-----------------------x
G.R. No. 177499
LEAGUE OF CITIES OF THE PHILIPPINES (LCP) represented by LCP
National President JERRY P. TREAS, CITY OF ILOILO represented by
MAYOR JERRY P. TREAS,CITY OF CALBAYOG represented by
MAYOR MEL SENEN S. SARMIENTO, and JERRY P. TREAS in his
personal capacity as taxpayer, Petitioners,
vs.
COMMISSION ON ELECTIONS; MUNICIPALITY OF LAMITAN,
PROVINCE OF BASILAN; MUNICIPALITY OF TABUK, PROVINCE OF
KALINGA; MUNICIPALITY OF BAYUGAN, PROVINCE OF AGUSAN
DEL SUR; MUNICIPALITY OF BATAC, PROVINCE OF ILOCOS
NORTE; MUNICIPALITY OF MATI, PROVINCE OF DAVAO ORIENTAL;
and MUNICIPALITY OF GUIHULNGAN, PROVINCE OF NEGROS
ORIENTAL, Respondents.
CITY OF TARLAC, CITY OF SANTIAGO, CITY OF IRIGA, CITY OF
LIGAO, CITY OF LEGAZPI, CITY OF TAGAYTAY, CITY OF SURIGAO,
CITY OF BAYAWAN, CITY OF SILAY, CITY OF GENERAL SANTOS,
CITY OF ZAMBOANGA, CITY OF GINGOOG, CITY OF CAUAYAN,
CITY OF PAGADIAN, CITY OF SAN CARLOS, CITY OF SAN
FERNANDO, CITY OF TACURONG, CITY OF TANGUB, CITY OF
OROQUIETA, CITY OF URDANETA, CITY OF VICTORIAS, CITY OF
CALAPAN, CITY OF HIMAMAYLAN, CITY OF BATANGAS, CITY OF
BAIS, CITY OF CADIZ, and CITY OF TAGUM, Petitioners-InIntervention.

x-----------------------x
G.R. No. 178056
LEAGUE OF CITIES OF THE PHILIPPINES (LCP) represented by LCP
National President JERRY P. TREAS, CITY OF ILOILO represented by
MAYOR JERRY P. TREAS, CITY OF CALBAYOG represented by
MAYOR MEL SENEN S. SARMIENTO, and JERRY P. TREAS in his
personal capacity as taxpayer, Petitioners,
vs.
COMMISSION ON ELECTIONS; MUNICIPALITY OF CABADBARAN,
PROVINCE OF AGUSAN DEL NORTE; MUNICIPALITY OF CARCAR,
PROVINCE OF CEBU; and MUNICIPALITY OF EL SALVADOR,
MISAMIS ORIENTAL, Respondents.
CITY OF TARLAC, CITY OF SANTIAGO, CITY OF IRIGA, CITY OF
LIGAO, CITY OF LEGAZPI, CITY OF TAGAYTAY, CITY OF SURIGAO,
CITY OF BAYAWAN, CITY OF SILAY, CITY OF GENERAL SANTOS,
CITY OF ZAMBOANGA, CITY OF GINGOOG, CITY OF CAUAYAN,
CITY OF PAGADIAN, CITY OF SAN CARLOS, CITY OF SAN
FERNANDO, CITY OF TACURONG, CITY OF TANGUB, CITY OF
OROQUIETA, CITY OF URDANETA, CITY OF VICTORIAS, CITY OF
CALAPAN, CITY OF HIMAMAYLAN, CITY OF BATANGAS, CITY OF
BAIS, CITY OF CADIZ, and CITY OF TAGUM, Petitioners-InIntervention.
RESOLUTION
CARPIO, J.:
For resolution are (1) the ad cautelam motion for reconsideration and (2)
motion to annul the Decision of 21 December 2009 filed by petitioners
League of Cities of the Philippines, et al. and (3) the ad cautelam motion
for reconsideration filed by petitioners-in-intervention Batangas City,
Santiago City, Legazpi City, Iriga City, Cadiz City, and Oroquieta City.
On 18 November 2008, the Supreme Court En Banc, by a majority vote,
struck down the subject 16 Cityhood Laws for violating Section 10, Article
X of the 1987 Constitution and the equal protection clause. On 31 March
2009, the Supreme Court En Banc, again by a majority vote, denied the
respondents first motion for reconsideration. On 28 April 2009, the
Supreme Court En Banc, by a split vote, denied the respondents second
motion for reconsideration. Accordingly, the 18 November 2008 Decision
became final and executory and was recorded, in due course, in the Book
of Entries of Judgments on 21 May 2009.
However, after the finality of the 18 November 2008 Decision and without
any exceptional and compelling reason, the Court En Banc
unprecedentedly reversed the 18 November 2008 Decision by upholding
the constitutionality of the Cityhood Laws in the Decision of 21 December
2009.
Upon reexamination, the Court finds the motions for reconsideration
meritorious and accordingly reinstates the 18 November 2008 Decision
declaring the 16 Cityhood Laws unconstitutional.
A. Violation of Section 10, Article X of the Constitution
Section 10, Article X of the 1987 Constitution provides:
No province, city, municipality, or barangay shall be created, divided,
merged, abolished or its boundary substantially altered, except in
accordance with the criteria established in the local government codeand
subject to approval by a majority of the votes cast in a plebiscite in the
political units directly affected. (Emphasis supplied)
The Constitution is clear. The creation of local government units must
follow the criteria established in the Local Government Code and not in
any other law. There is only one Local Government Code.1 The

Constitution requires Congress to stipulate in the Local Government

Code all the criteria necessary for the creation of a city, including the
conversion of a municipality into a city. Congress cannot write such
criteria in any other law, like the Cityhood Laws.
The clear intent of the Constitution is to insure that the creation of cities
and other political units must follow the same uniform, non-discriminatory
criteria found solely in the Local Government Code. Any derogation or
deviation from the criteria prescribed in the Local Government Code
violates Section 10, Article X of the Constitution.
RA 9009 amended Section 450 of the Local Government Code to
increase the income requirement from P20 million to P100 million for the
creation of a city. This took effect on 30 June 2001. Hence, from that
moment the Local Government Code required that any municipality
desiring to become a city must satisfy the P100 million income
requirement. Section 450 of the Local Government Code, as amended by
RA 9009, does not contain any exemption from this income requirement.
In enacting RA 9009, Congress did not grant any exemption to
respondent municipalities, even though their cityhood bills were pending
in Congress when Congress passed RA 9009. The Cityhood Laws, all
enacted after the effectivity of RA 9009, explicitly exempt respondent
municipalities from the increased income requirement in Section 450 of
the Local Government Code, as amended by RA 9009. Such exemption
clearly violates Section 10, Article X of the Constitution and is thus
patently unconstitutional. To be valid, such exemption must be written in
the Local Government Code and not in any other law, including the
Cityhood Laws.
RA 9009 is not a law different from the Local Government Code. Section
1 of RA 9009 pertinently provides: "Section 450 of Republic Act No. 7160,
otherwise known as the Local Government Code of 1991, is hereby
amended to read as follows: x x x." RA 9009 amended Section 450 of the
Local Government Code. RA 9009, by amending Section 450 of the Local
Government Code, embodies the new and prevailing Section 450 of the
Local Government Code. Considering the Legislatures primary intent to
curtail "the mad rush of municipalities wanting to be converted into cities,"
RA 9009 increased the income requirement for the creation of cities. To
repeat, RA 9009 is not a law different from the Local Government Code,
as it expressly amended Section 450 of the Local Government Code.
The language of RA 9009 is plain, simple, and clear. Nothing is
unintelligible or ambiguous; not a single word or phrase admits of two or
more meanings. RA 9009 amended Section 450 of the Local Government
Code of 1991 by increasing the income requirement for the creation of
cities. There are no exemptions from this income requirement. Since the
law is clear, plain and unambiguous that any municipality desiring to
convert into a city must meet the increased income requirement, there is
no reason to go beyond the letter of the law. Moreover, where the law
does not make an exemption, the Court should not create one.2
B. Operative Fact Doctrine
Under the operative fact doctrine, the law is recognized as
unconstitutional but the effects of the unconstitutional law, prior to its
declaration of nullity, may be left undisturbed as a matter of equity and
fair play. In fact, the invocation of the operative fact doctrine is an
admission that the law is unconstitutional.
However, the minoritys novel theory, invoking the operative fact doctrine,
is that the enactment of the Cityhood Laws and the functioning of the 16
municipalities as new cities with new sets of officials and employees
operate to contitutionalize the unconstitutional Cityhood Laws. This novel
theory misapplies the operative fact doctrine and sets a gravely
dangerous precedent.

Under the minoritys novel theory, an unconstitutional law, if already

implemented prior to its declaration of unconstitutionality by the Court,
can no longer be revoked and its implementation must be continued
despite being unconstitutional. This view will open the floodgates to the
wanton enactment of unconstitutional laws and a mad rush for their
immediate implementation before the Court can declare them
unconstitutional. This view is an open invitation to serially violate the
Constitution, and be quick about it, lest the violation be stopped by the
Court.
The operative fact doctrine is a rule of equity. As such, it must be applied
as an exception to the general rule that an unconstitutional law produces
no effects. It can never be invoked to validate as constitutional an
unconstitutional act. In Planters Products, Inc. v. Fertiphil
Corporation,3 the Court stated:
The general rule is that an unconstitutional law is void. It produces no
rights, imposes no duties and affords no protection. It has no legal effect.
It is, in legal contemplation, inoperative as if it has not been passed.
Being void, Fertiphil is not required to pay the levy. All levies paid should
be refunded in accordance with the general civil code principle against
unjust enrichment. The general rule is supported by Article 7 of the Civil
Code, which provides:
ART. 7. Laws are repealed only by subsequent ones, and their violation
or non-observance shall not be excused by disuse or custom or practice
to the contrary.
When the courts declare a law to be inconsistent with the Constitution,
the former shall be void and the latter shall govern.
The doctrine of operative fact, as an exception to the general rule, only
applies as a matter of equity and fair play. It nullifies the effects of an
unconstitutional law by recognizing that the existence of a statute prior to
a determination of unconstitutionality is an operative fact and may have
consequences which cannot always be ignored. The past cannot always
be erased by a new judicial declaration.

As the Court held in the 18 November 2008 Decision, there is no

substantial distinction between municipalities with pending cityhood bills
in the 11th Congress and municipalities that did not have pending bills.
The mere pendency of a cityhood bill in the 11th Congress is not a
material difference to distinguish one municipality from another for the
purpose of the income requirement. The pendency of a cityhood bill in the
11th Congress does not affect or determine the level of income of a
municipality. Municipalities with pending cityhood bills in the 11th
Congress might even have lower annual income than municipalities that
did not have pending cityhood bills.In short, the classification criterion
mere pendency of a cityhood bill in the 11th Congress is not rationally
related to the purpose of the law which is to prevent fiscally non-viable
municipalities from converting into cities.
Moreover, the fact of pendency of a cityhood bill in the 11th Congress
limits the exemption to a specific condition existing at the time of passage
of RA 9009. That specific condition will never happen again. This violates
the requirement that a valid classification must not be limited to existing
conditions only. In fact, the minority concedes that "the conditions
(pendency of the cityhood bills) adverted to can no longer be repeated."
Further, the exemption provision in the Cityhood Laws gives the 16
municipalities a unique advantage based on an arbitrary date the filing
of their cityhood bills before the end of the 11th Congress as against all
other municipalities that want to convert into cities after the effectivity of
RA 9009.
In addition, limiting the exemption only to the 16 municipalities violates
the requirement that the classification must apply to all similarly situated.
Municipalities with the same income as the 16 respondent municipalities
cannot convert into cities, while the 16 respondent municipalities can.
Clearly, as worded, the exemption provision found in the Cityhood Laws,
even if it were written in Section 450 of the Local Government Code,
would still be unconstitutional for violation of the equal protection clause.
D. Tie-Vote on a Motion for Reconsideration
Section 7, Rule 56 of the Rules of Court provides:

The doctrine is applicable when a declaration of unconstitutionality will

impose an undue burden on those who have relied on the invalid law.
Thus, it was applied to a criminal case when a declaration of
unconstitutionality would put the accused in double jeopardy or would put
in limbo the acts done by a municipality in reliance upon a law creating it.
(Emphasis supplied)
The operative fact doctrine never validates or constitutionalizes an
unconstitutional law. Under the operative fact doctrine, the
unconstitutional law remains unconstitutional, but the effects of the
unconstitutional law, prior to its judicial declaration of nullity, may be left
undisturbed as a matter of equity and fair play. In short, the operative fact
doctrine affects or modifies only the effects of the unconstitutional law,
not the unconstitutional law itself.
Thus, applying the operative fact doctrine to the present case, the
Cityhood Laws remain unconstitutional because they violate Section 10,
Article X of the Constitution. However, the effects of the implementation
of the Cityhood Laws prior to the declaration of their nullity, such as the
payment of salaries and supplies by the "new cities" or their issuance of
licenses or execution of contracts, may be recognized as valid and
effective. This does not mean that the Cityhood Laws are valid for they
remain void. Only the effects of the implementation of these
unconstitutional laws are left undisturbed as a matter of equity and fair
play to innocent people who may have relied on the presumed validity of
the Cityhood Laws prior to the Courts declaration of their
unconstitutionality.
C. Equal Protection Clause

SEC. 7. Procedure if opinion is equally divided. Where the court en

banc is equally divided in opinion, or the necessary majority cannot be
had, the case shall again be deliberated on, and if after such deliberation
no decision is reached, the original action commenced in the court shall
be dismissed; in appealed cases, the judgment or order appealed from
shall stand affirmed; and on all incidental matters, the petition or motion
shall be denied. (Emphasis supplied)
The En Banc Resolution of 26 January 1999 in A.M. No. 99-1-09-SC,
reads:
A MOTION FOR THE CONSIDERATION OF A DECISION OR
RESOLUTION OF THE COURT EN BANC OR OF A DIVISION MAY BE
GRANTED UPON A VOTE OF A MAJORITY OF THE MEMBERS OF
THE EN BANC OR OF A DIVISION, AS THE CASE MAY BE, WHO
ACTUALLY TOOK PART IN THE DELIBERATION OF THE MOTION.
IF THE VOTING RESULTS IN A TIE, THE MOTION FOR
RECONSIDERATION IS DEEMED DENIED. (Emphasis supplied)
The clear and simple language of the clarificatory en banc Resolution
requires no further explanation. If the voting of the Court en banc results
in a tie, the motion for reconsideration is deemed denied. The Courts
prior majority action on the main decision stands affirmed.4 This
clarificatory Resolution applies to all cases heard by the Court en
banc, which includes not only cases involving the constitutionality of a
law, but also, as expressly stated in Section 4(2), Article VIII of the
Constitution, "all other cases which under the Rules of Court are required
to be heard en banc."

The 6-6 tie-vote by the Court en banc on the second motion for
reconsideration necessarily resulted in the denial of the second motion
for reconsideration. Since the Court was evenly divided, there could be
no reversal of the 18 November 2008 Decision, for a tie-vote cannot
result in any court order or directive.5 The judgment stands in full
force.6 Undeniably, the 6-6 tie-vote did not overrule the prior majority en
banc Decision of 18 November 2008, as well as the prior majority en
banc Resolution of 31 March 2009 denying reconsideration. The tie-vote
on the second motion for reconsideration is not the same as a tie-vote on
the main decision where there is no prior decision. Here, the tie-vote
plainly signifies that there is no majority to overturn the prior 18
November 2008 Decision and 31 March 2009 Resolution, and thus the
second motion for reconsideration must be denied.

rendering the challenged Cityhood Laws void for being violative of the
Constitution.

Further, the tie-vote on the second motion for reconsideration did not
mean that the present cases were left undecided because there remain
the Decision of 18 November 2008 and the Resolution of 31 March 2009
where a majority of the Court en banc concurred in declaring the
unconstitutionality of the sixteen Cityhood Laws. In short, the 18
November 2008 Decision and the 31 March 2009 Resolution, which were
both reached with the concurrence of a majority of the Court en banc, are
not reconsidered but stand affirmed.7These prior majority actions of the
Court en banc can only be overruled by a new majority vote, not a tievote because a tie-vote cannot overrule a prior affirmative action.

Republic of the Philippines

SUPREME COURT
Manila

The denial, by a split vote, of the second motion for reconsideration

inevitably rendered the 18 November 2008 Decision final. In fact, in its
Resolution of 28 April 2009, denying the second motion for
reconsideration, the Courten banc reiterated that no further pleadings
shall be entertained and stated that entry of judgment be made in due
course.1wphi1
The dissenting opinion stated that "a deadlocked vote of six is not a
majority and a non-majority does not constitute a rule with precedential
value."8
Indeed, a tie-vote is a non-majority a non-majority which cannot
overrule a prior affirmative action, that is the 18 November 2008 Decision
striking down the Cityhood Laws. In short, the 18 November 2008
Decision stands affirmed. And assuming a non-majority lacks any
precedential value, the 18 November 2008 Decision, which was
unreversed as a result of the tie-vote on the respondents second motion
for reconsideration, nevertheless remains binding on the parties.9
Conclusion
Section 10, Article X of the Constitution expressly provides that "no x x x
city shall be created x x x except in accordance with the criteria
established in the local government code." This provision can only be
interpreted in one way, that is, all the criteria for the creation of cities
must be embodied exclusively in the Local Government Code. In this
case, the Cityhood Laws, which are unmistakably laws other than the
Local Government Code, provided an exemption from the increased
income requirement for the creation of cities under Section 450 of the
Local Government Code, as amended by RA 9009. Clearly, the Cityhood
Laws contravene the letter and intent of Section 10, Article X of the
Constitution.
Adhering to the explicit prohibition in Section 10, Article X of the
Constitution does not cripple Congress power to make laws. In fact,
Congress is not prohibited from amending the Local Government Code
itself, as what Congress did by enacting RA 9009. Indisputably, the act of
amending laws comprises an integral part of the Legislatures law-making
power. The unconstitutionality of the Cityhood Laws lies in the fact that
Congress provided an exemption contrary to the express language of the
Constitution that "[n]o x x x city x x x shall be created except in
accordance with the criteria established in the local government code." In
other words, Congress exceeded and abused its law-making power,

WHEREFORE, we GRANT the motions for reconsideration of the 21

December 2009 Decision and REINSTATEthe 18 November 2008
Decision declaring UNCONSTITUTIONAL the Cityhood Laws, namely:
Republic Act Nos. 9389, 9390, 9391, 9392, 9393, 9394, 9398, 9404,
9405, 9407, 9408, 9409, 9434, 9435, 9436, and 9491.
We NOTE petitioners motion to annul the Decision of 21 December
2009.
SO ORDERED.

EN BANC
G.R. No. 176951

February 15, 2011

LEAGUE OF CITIES OF THE PHILIPPINES (LCP), Represented by

LCP National President Jerry P. Treas; City of Calbayog,
represented by Mayor Mel Senen S. Sarmiento; and Jerry P. Treas,
in his personal capacity as Taxpayer, Petitioners,
vs.
COMMISSION ON ELECTIONS; Municipality of Baybay, Province of
Leyte; Municipality of Bogo, Province of Cebu; Municipality of
Catbalogan, Province of Western Samar; Municipality of Tandag,
Province of Surigao del Sur; Municipality of Borongan, Province of
Eastern Samar; and Municipality of Tayabas, Province of
Quezon, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 177499
LEAGUE OF CITIES OF THE PHILIPPINES (LCP), Represented by LCP
National President Jerry P. Treas; City of Calbayog, represented by
Mayor Mel Senen S. Sarmiento; and Jerry P. Treas, in his personal
capacity as Taxpayer, Petitioners,
vs.
COMMISSION ON ELECTIONS; Municipality of Lamitan, Province of
Basilan; Municipality of Tabuk, Province of Kalinga; Municipality of
Bayugan, Province of Agusan del Sur; Municipality of Batac, Province of
Ilocos Norte; Municipality of Mati, Province of Davao Oriental; and
Municipality of Guihulngan, Province of Negros Oriental, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 178056
LEAGUE OF CITIES OF THE PHILIPPINES (LCP), Represented by LCP
National President Jerry P. Treas; City of Calbayog, represented by
Mayor Mel Senen S. Sarmiento; and Jerry P. Treas, in his personal
capacity as Taxpayer, Petitioners,
vs.
COMMISSION ON ELECTIONS; Municipality of Cabadbaran, Province of
Agusan del Norte; Municipality of Carcar, Province of Cebu; Municipality
of El Salvador, Province of Misamis Oriental; Municipality of Naga, Cebu;
and Department of Budget and Management, Respondents.
RESOLUTION
BERSAMIN, J.:
For consideration of this Court are the following pleadings:

1. Motion for Reconsideration of the "Resolution" dated August 24, 2010

dated and filed on September 14, 2010 by respondents Municipality of
Baybay, et al.; and
2. Opposition [To the "Motion for Reconsideration of the Resolution
dated August 24, 2010"].

Considering these circumstances where the Court En Banc has twice

changed its position on the constitutionality of the 16 Cityhood Laws, and
especially taking note of the novelty of the issues involved in these cases,
the Motion for Reconsideration of the "Resolution" dated August 24, 2010
deserves favorable action by this Court on the basis of the following
cogent points:

Meanwhile, respondents also filed on September 20, 2010 a Motion to

Set "Motion for Reconsideration of the Resolution dated August 24,
2010" for Hearing. This motion was, however, already denied by the
Court En Banc.

1.

A brief background

Article X, Section 10 provides

These cases were initiated by the consolidated petitions for prohibition

filed by the League of Cities of the Philippines (LCP), City of Iloilo, City of
Calbayog, and Jerry P. Treas, assailing the constitutionality of the
sixteen (16) laws,1 each converting the municipality covered thereby into
a component city (Cityhood Laws), and seeking to enjoin the Commission
on Elections (COMELEC) from conducting plebiscites pursuant to the
subject laws.

Section 10. No province, city, municipality, or barangay may be created,

divided, merged, abolished, or its boundary substantially altered, except
in accordance with the criteria established in the local government code
and subject to approval by a majority of the votes cast in a plebiscite in
the political units directly affected.

In the Decision dated November 18, 2008, the Court En Banc, by a 6-5
vote,2 granted the petitions and struck down the Cityhood Laws as
unconstitutional for violating Sections 10 and 6, Article X, and the equal
protection clause.
In the Resolution dated March 31, 2009, the Court En Banc, by a 7-5
vote,3 denied the first motion for reconsideration.
On April 28, 2009, the Court En Banc issued a Resolution, with a vote of
6-6,4 which denied the second motion for reconsideration for being a
prohibited pleading.
In its June 2, 2009 Resolution, the Court En Banc clarified its April 28,
2009 Resolution in this wise
As a rule, a second motion for reconsideration is a prohibited pleading
pursuant to Section 2, Rule 52 of the Rules of Civil Procedure which
provides that: "No second motion for reconsideration of a judgment or
final resolution by the same party shall be entertained." Thus, a decision
becomes final and executory after 15 days from receipt of the denial of
the first motion for reconsideration.
However, when a motion for leave to file and admit a second motion for
reconsideration is granted by the Court, the Court therefore allows the
filing of the second motion for reconsideration. In such a case, the
second motion for reconsideration is no longer a prohibited pleading.
In the present case, the Court voted on the second motion for
reconsideration filed by respondent cities. In effect, the Court allowed the
filing of the second motion for reconsideration. Thus, the second motion
for reconsideration was no longer a prohibited pleading. However, for
lack of the required number of votes to overturn the 18 November 2008
Decision and 31 March 2009 Resolution, the Court denied the second
motion for reconsideration in its 28 April 2009 Resolution.5
Then, in another Decision dated December 21, 2009, the Court En Banc,
by a vote of 6-4,6 declared the Cityhood Laws as constitutional.
On August 24, 2010, the Court En Banc, through a Resolution, by a vote
of 7-6,7 resolved the Ad Cautelam Motion for Reconsideration and
Motion to Annul the Decision of December 21, 2009, both filed by
petitioners, and the Ad Cautelam Motion for Reconsideration filed by
petitioners-in-intervention Batangas City, Santiago City, Legazpi City,
Iriga City, Cadiz City, and Oroquieta City, reinstating the November 18,
2008 Decision. Hence, the aforementioned pleadings.

The 16 Cityhood Bills do not violate Article X, Section 10 of the

Constitution.

The tenor of the ponencias of the November 18, 2008 Decision and the
August 24, 2010 Resolution is that the exemption clauses in the 16
Cityhood Laws are unconstitutional because they are not written in the
Local Government Code of 1991 (LGC), particularly Section 450 thereof,
as amended by Republic Act (R.A.) No. 9009, which took effect on June
30, 2001, viz.
Section 450. Requisites for Creation. a) A municipality or a cluster of
barangays may be converted into a component city if it has a locally
generated annual income, as certified by the Department of Finance, of
at least One Hundred Million Pesos (P100,000,000.00) for at least two (2)
consecutive years based on 2000 constant prices, and if it has either of
the following requisites:
xxxx
(c) The average annual income shall include the income accruing to the
general fund, exclusive of special funds, transfers, and non-recurring
income. (Emphasis supplied)
Prior to the amendment, Section 450 of the LGC required only an
average annual income, as certified by the Department of Finance, of at
least P20,000,000.00 for the last two (2) consecutive years, based on
1991 constant prices.
Before Senate Bill No. 2157, now R.A. No. 9009, was introduced by
Senator Aquilino Pimentel, there were 57 bills filed for conversion of 57
municipalities into component cities. During the 11th Congress (June
1998-June 2001), 33 of these bills were enacted into law, while 24
remained as pending bills. Among these 24 were the 16 municipalities
that were converted into component cities through the Cityhood Laws.
The rationale for the enactment of R.A. No. 9009 can be gleaned from
the sponsorship speech of Senator Pimentel on Senate Bill No. 2157, to
wit
Senator Pimentel. Mr. President, I would have wanted this bill to be
included in the whole set of proposed amendments that we have
introduced to precisely amend the Local Government Code. However, it
is a fact that there is a mad rush of municipalities wanting to be converted
into cities. Whereas in 1991, when the Local Government was approved,
there were only 60 cities, today the number has increased to 85 cities,
with 41 more municipalities applying for conversion to the same status. At
the rate we are going, I am apprehensive that before long this nation will
be a nation of all cities and no municipalities.
It is for that reason, Mr. President, that we are proposing among other
things, that the financial requirement, which, under the Local Government

Code, is fixed at P20 million, be raised to P100 million to enable a

municipality to have the right to be converted into a city, and the P100
million should be sourced from locally generated funds.
What has been happening, Mr. President, is, the municipalities aspiring to
become cities say that they qualify in terms of financial requirements by
incorporating the Internal Revenue share of the taxes of the nation on to
their regularly generated revenue. Under that requirement, it looks clear
to me that practically all municipalities in this country would qualify to
become cities.
It is precisely for that reason, therefore, that we are seeking the approval
of this Chamber to amend, particularly Section 450 of Republic Act No.
7160, the requisite for the average annual income of a municipality to be
converted into a city or cluster of barangays which seek to be converted
into a city, raising that revenue requirement from P20 million to P100
million for the last two consecutive years based on 2000 constant
prices.8
While R.A. No. 9009 was being deliberated upon, Congress was well
aware of the pendency of conversion bills of several municipalities,
including those covered by the Cityhood Laws, desiring to become
component cities which qualified under the P20 million income
requirement of the old Section 450 of the LGC. The interpellation of
Senate President Franklin Drilon of Senator Pimentel is revealing, thus
THE PRESIDENT. The Chair would like to ask for some clarificatory
point.
SENATOR PIMENTEL. Yes, Mr. President.
THE PRESIDENT. This is just on the point of the pending bills in the
Senate which propose the conversion of a number of municipalities into
cities and which qualify under the present standard.
We would like to know the view of the sponsor: Assuming that this bill
becomes a law, will the Chamber apply the standard as proposed in this
bill to those bills which are pending for consideration?
SENATOR PIMENTEL. Mr. President, it might not be fair to make this bill,
on the assumption that it is approved, retroact to the bills that are pending
in the Senate conversion from municipalities to cities.
THE PRESIDENT. Will there be an appropriate language crafted to
reflect that view? Or does it not become a policy of the Chamber,
assuming that this bill becomes a law tomorrow, that it will apply to those
bills which are already approved by the House under the old version of
the Local Government Code and are now pending in the Senate? The
Chair does not know if we can craft a language which will limit the
application to those which are not yet in the Senate. Or is that a policy
that the Chamber will adopt?
SENATOR PIMENTEL. Mr. President, personally, I do not think it is
necessary to put that provision because what we are saying here will
form part of the interpretation of this bill. Besides, if there is no
retroactivity clause, I do not think that the bill would have any retroactive
effect.
THE PRESIDENT. So the understanding is that those bills which are
already pending in the Chamber will not be affected.
SENATOR PIMENTEL. These will not be affected, Mr. President.
THE PRESIDENT. Thank you Mr. Chairman.9
Clearly, based on the above exchange, Congress intended that those
with pending cityhood bills during the 11th Congress would not be
covered by the new and higher income requirement of P100 million

imposed by R.A. No. 9009. When the LGC was amended by R.A. No.
9009, the amendment carried with it both the letter and the intent of the
law, and such were incorporated in the LGC by which the compliance of
the Cityhood Laws was gauged.
Notwithstanding that both the 11th and 12th Congress failed to act upon
the pending cityhood bills, both the letter and intent of Section 450 of the
LGC, as amended by R.A. No. 9009, were carried on until the 13th
Congress, when the Cityhood Laws were enacted. The exemption
clauses found in the individual Cityhood Laws are the express articulation
of that intent to exempt respondent municipalities from the coverage of
R.A. No. 9009.
Even if we were to ignore the above quoted exchange between then
Senate President Drilon and Senator Pimentel, it cannot be denied that
Congress saw the wisdom of exempting respondent municipalities from
complying with the higher income requirement imposed by the
amendatory R.A. No. 9009. Indeed, these municipalities have proven
themselves viable and capable to become component cities of their
respective provinces. It is also acknowledged that they were centers of
trade and commerce, points of convergence of transportation, rich
havens of agricultural, mineral, and other natural resources, and
flourishing tourism spots. In this regard, it is worthy to mention the
distinctive traits of each respondent municipality, viz
Batac, Ilocos Norte It is the biggest municipality of the 2nd District of
Ilocos Norte, 2nd largest and most progressive town in the province of
Ilocos Norte and the natural convergence point for the neighboring towns
to transact their commercial ventures and other daily activities. A growing
metropolis, Batac is equipped with amenities of modern living like
banking institutions, satellite cable systems, telecommunications
systems. Adequate roads, markets, hospitals, public transport systems,
sports, and entertainment facilities. [Explanatory Note of House Bill No.
5941, introduced by Rep. Imee R. Marcos.]
El Salvador, Misamis Oriental It is located at the center of the CagayanIligan Industrial Corridor and home to a number of industrial companies
and corporations. Investment and financial affluence of El Salvador is
aptly credited to its industrious and preserving people. Thus, it has
become the growing investment choice even besting nearby cities and
municipalities. It is home to Asia Brewery as distribution port of their
product in Mindanao. The Gokongwei Group of Companies is also doing
business in the area. So, the conversion is primarily envisioned to spur
economic and financial prosperity to this coastal place in North-Western
Misamis Oriental. [Explanatory Note of House Bill No. 6003, introduced
by Rep. Augusto H. Bacullo.]
Cabadbaran, Agusan del Norte It is the largest of the eleven (11)
municipalities in the province of Agusan del Norte. It plays strategic
importance to the administrative and socio-economic life and
development of Agusan del Norte. It is the foremost in terms of trade,
commerce, and industry. Hence, the municipality was declared as the
new seat and capital of the provincial government of Agusan del Norte
pursuant to Republic Act No. 8811 enacted into law on August 16, 2000.
Its conversion will certainly promote, invigorate, and reinforce the
economic potential of the province in establishing itself as an agroindustrial center in the Caraga region and accelerate the development of
the area. [Explanatory Note of House Bill No. 3094, introduced by Rep.
Ma. Angelica Rosedell M. Amante.]
Borongan, Eastern Samar It is the capital town of Eastern Samar and
the development of Eastern Samar will depend to a certain degree of its
urbanization. It will serve as a catalyst for the modernization and progress
of adjacent towns considering the frequent interactions between the
populace. [Explanatory Note of House Bill No. 2640, introduced by Rep.
Marcelino C. Libanan.]

Lamitan, Basilan Before Basilan City was converted into a separate

province, Lamitan was the most progressive part of the city. It has been
for centuries the center of commerce and the seat of the Sultanate of the
Yakan people of Basilan. The source of its income is agro-industrial and
others notably copra, rubber, coffee and host of income generating
ventures. As the most progressive town in Basilan, Lamitan continues to
be the center of commerce catering to the municipalities of Tuburan,
Tipo-Tipo and Sumisip. [Explanatory Note of House Bill No. 5786,
introduced by Rep. Gerry A. Salapuddin.]
Catbalogan, Samar It has always been the socio-economic-political
capital of the Island of Samar even during the Spanish era. It is the seat
of government of the two congressional districts of Samar. Ideally located
at the crossroad between Northern and Eastern Samar, Catbalogan also
hosts trade and commerce activates among the more prosperous cities of
the Visayas like Tacloban City, Cebu City and the cities of Bicol region.
The numerous banks and telecommunication facilities showcases the
healthy economic environment of the municipality. The preeminent and
sustainable economic situation of Catbalogan has further boosted the call
of residents for a more vigorous involvement of governance of the
municipal government that is inherent in a city government. [Explanatory
Note of House Bill No. 2088, introduced by Rep. Catalino V. Figueroa.]
Bogo, Cebu Bogo is very qualified for a city in terms of income,
population and area among others. It has been elevated to the Hall of
Fame being a five-time winner nationwide in the clean and green
program. [Explanatory Note of House Bill No. 3042, introduced by Rep.
Clavel A. Martinez.]
Tandag, Surigao del Sur This over 350 year old capital town the
province has long sought its conversion into a city that will pave the way
not only for its own growth and advancement but also help in the
development of its neighboring municipalities and the province as a
whole. Furthermore, it can enhance its role as the provinces trade,
financial and government center. [Explanatory Note of House Bill No.
5940, introduced by Rep. Prospero A. Pichay, Jr.]
Bayugan, Agusan del Sur It is a first class municipality and the biggest
in terms of population in the entire province. It has the most progressive
and thickly populated area among the 14 municipalities that comprise the
province. Thus, it has become the center for trade and commerce in
Agusan del Sur. It has a more developed infrastructure and facilities than
other municipalities in the province. [Explanatory Note of House Bill No.
1899, introduced by Rep. Rodolfo "Ompong" G. Plaza.]
Carcar, Cebu Through the years, Carcar metamorphosed from rural to
urban and now boast of its manufacturing industry, agricultural farming,
fishing and prawn industry and its thousands of large and small
commercial establishments contributing to the bulk of economic activities
in the municipality. Based on consultation with multi-sectoral groups,
political and non-government agencies, residents and common folk in
Carcar, they expressed their desire for the conversion of the municipality
into a component city. [Explanatory Note of House Bill No. 3990,
introduced by Rep. Eduardo R. Gullas.]
Guihulngan, Negros Oriental Its population is second highest in the
province, next only to the provincial capital and higher than Canlaon City
and Bais City. Agriculture contributes heavily to its economy. There are
very good prospects in agricultural production brought about by its
favorable climate. It has also the Tanon Strait that provides a good fishing
ground for its numerous fishermen. Its potential to grow commercially is
certain. Its strategic location brought about by its existing linkage
networks and the major transportation corridors traversing the
municipality has established Guihulngan as the center of commerce and
trade in this part of Negros Oriental with the first congressional district as
its immediate area of influence. Moreover, it has beautiful tourist spots
that are being availed of by local and foreign tourists. [Explanatory Note
of House Bill No. 3628, introduced by Rep. Jacinto V. Paras.]

Tayabas, Quezon It flourished and expanded into an important politicocultural center in [the] Tagalog region. For 131 years (1179-1910), it
served as the cabecera of the province which originally carried the
cabeceras own name, Tayabas. The locality is rich in culture, heritage
and trade. It was at the outset one of the more active centers of
coordination and delivery of basic, regular and diverse goods and
services within the first district of Quezon Province. [Explanatory Note of
House Bill No. 3348, introduced by Rep. Rafael P. Nantes.]
Tabuk, Kalinga It not only serves as the main hub of commerce and
trade, but also the cultural center of the rich customs and traditions of the
different municipalities in the province. For the past several years, the
income of Tabuk has been steadily increasing, which is an indication that
its economy is likewise progressively growing. [Explanatory Note of
House Bill No. 3068, introduced by Rep. Laurence P. Wacnang.]
Available information on Baybay, Leyte; Mati, Davao Oriental; and Naga,
Cebu shows their economic viability, thus:
Covering an area of 46,050 hectares, Baybay [Leyte] is composed of 92
barangays, 23 of which are in the poblacion. The remaining 69 are rural
barangays. Baybay City is classified as a first class city. It is situated on
the western coast of the province of Leyte. It has a Type 4 climate, which
is generally wet. Its topography is generally mountainous in the eastern
portion as it slopes down west towards the shore line. Generally an
agricultural city, the common means of livelihood are farming and fishing.
Some are engaged in hunting and in forestall activities. The most
common crops grown are rice, corn, root crops, fruits, and vegetables.
Industries operating include the Specialty Products Manufacturing, Inc.
and the Visayan Oil Mill. Various cottage industries can also be found in
the city such as bamboo and rattan craft, ceramics, dress-making, fiber
craft, food preservation, mat weaving, metal craft, fine Philippine furniture
manufacturing and other related activities. Baybay has great potential as
a tourist destination, especially for tennis players. It is not only rich in
biodiversity and history, but it also houses the campus of the Visayas
State University (formerly the Leyte State University/Visayas State
College of Agriculture/Visayas Agricultural College/Baybay National
Agricultural School/Baybay Agricultural High School and the Jungle
Valley Park.) Likewise, it has river systems fit for river cruising, numerous
caves for spelunking, forests, beaches, and marine treasures. This
richness, coupled with the friendly Baybayanos, will be an element of a
successful tourism program. Considering the role of tourism in
development, Baybay City intends to harness its tourism potential.
(<http://en.wikipedia.org/wiki/Baybay City> visited September 19, 2008)
Mati [Davao Oriental] is located on the eastern part of the island of
Mindanao. It is one hundred sixty-five (165) kilometers away from Davao
City, a one and a half-hour drive from Tagum City. Visitors can travel from
Davao City through the Madaum diversion road, which is shorter than
taking the Davao-Tagum highway. Travels by air and sea are possible,
with the existence of an airport and seaport. Mati boasts of being the
coconut capital of Mindanao if not the whole country. A large portion of its
fertile land is planted to coconuts, and a significant number of its
population is largely dependent on it. Other agricultural crops such as
mango, banana, corn, coffee and cacao are also being cultivated, as well
as the famous Menzi pomelo and Valencia oranges. Mati has a long
stretch of shoreline and one can find beaches of pure, powder-like white
sand. A number of resorts have been developed and are now open to
serve both local and international tourists. Some of these resorts are
situated along the coast of Pujada Bay and the Pacific Ocean. Along the
western coast of the bay lies Mt. Hamiguitan, the home of the pygmy
forest, where bonsai plants and trees grow, some of which are believed
to be a hundred years old or more. On its peak is a lake, called "Tinagong
Dagat," or hidden sea, so covered by dense vegetation a climber has to
hike trails for hours to reach it. The mountain is also host to rare species
of flora and fauna, thus becoming a wildlife sanctuary for these life forms.
(<http://mati.wetpain.com/?t=anon> accessed on September 19, 2008.)

Mati is abundant with nickel, chromite, and copper. Louie Rabat,

Chamber President of the Davao Oriental Eastern Chamber of
Commerce and Industry, emphasized the big potential of the mining
industry in the province of Davao Oriental. As such, he strongly
recommends Mati as the mining hub in the Region.
(<http://www.pia.gov.ph/default.asp?m=12&sec=reader&rp=1&fi=p08011
5.htm&no.=9&date, accessed on September 19, 2008)
Naga [Cebu]: Historical BackgroundIn the early times, the place now
known as Naga was full of huge trees locally called as "Narra." The first
settlers referred to this place as Narra, derived from the huge trees,
which later simply became Naga. Considered as one of the oldest
settlements in the Province of Cebu, Naga became a municipality on
June 12, 1829. The municipality has gone through a series of
classifications as its economic development has undergone changes and
growth. The tranquil farming and fishing villages of the natives were
agitated as the Spaniards came and discovered coal in the uplands. Coal
was the first export of the municipality, as the Spaniards mined and sent
it to Spain. The mining industry triggered the industrial development of
Naga. As the years progressed, manufacturing and other industries
followed, making Naga one of the industrialized municipalities in the
Province of Cebu.
Class of Municipality 1st class
Province Cebu
Distance from Cebu City 22 kms.
Number of Barangays 28
No. of Registered Voters 44,643 as of May 14, 2007
Total No. of Precincts 237 (as of May 14, 2007)
Ann. Income (as of Dec. 31, 2006) Php112,219,718.35 Agricultural,
Industrial, Agro-Industrial, Mining Product
(<http://www.nagacebu.com/index.php?option=com.content&view=article
id=53:naga-facts-and-figures&catid=51:naga-facts-andfigures&Itemid=75> visited September 19, 2008)
The enactment of the Cityhood Laws is an exercise by Congress of its
legislative power. Legislative power is the authority, under the
Constitution, to make laws, and to alter and repeal them.10 The
Constitution, as the expression of the will of the people in their original,
sovereign, and unlimited capacity, has vested this power in the Congress
of the Philippines. The grant of legislative power to Congress is broad,
general, and comprehensive. The legislative body possesses plenary
powers for all purposes of civil government. Any power, deemed to be
legislative by usage and tradition, is necessarily possessed by Congress,
unless the Constitution has lodged it elsewhere. In fine, except as limited
by the Constitution, either expressly or impliedly, legislative power
embraces all subjects, and extends to matters of general concern or
common interest.11
Without doubt, the LGC is a creation of Congress through its law-making
powers. Congress has the power to alter or modify it as it did when it
enacted R.A. No. 9009. Such power of amendment of laws was again
exercised when Congress enacted the Cityhood Laws. When Congress
enacted the LGC in 1991, it provided for quantifiable indicators of
economic viability for the creation of local government unitsincome,
population, and land area. Congress deemed it fit to modify the income
requirement with respect to the conversion of municipalities into
component cities when

it enacted R.A. No. 9009, imposing an amount of P100 million, computed

only from locally-generated sources. However, Congress deemed it wiser
to exempt respondent municipalities from such a belatedly imposed
modified income requirement in order to uphold its higher calling of
putting flesh and blood to the very intent and thrust of the LGC, which is
countryside development and autonomy, especially accounting for these
municipalities as engines for economic growth in their respective
provinces.
Undeniably, R.A. No. 9009 amended the LGC. But it is also true that, in
effect, the Cityhood Laws amended R.A. No. 9009 through the exemption
clauses found therein. Since the Cityhood Laws explicitly exempted the
concerned municipalities from the amendatory R.A. No. 9009, such
Cityhood Laws are, therefore, also amendments to the LGC itself. For
this reason, we reverse the November 18, 2008 Decision and the August
24, 2010 Resolution on their strained and stringent view that the Cityhood
Laws, particularly their exemption clauses, are not found in the LGC.
2.
The Cityhood Laws do not violate Section 6, Article X and the equal
protection clause of the Constitution.
Both the November 18, 2008 Decision and the August 24, 2010
Resolution impress that the Cityhood Laws violate the equal protection
clause enshrined in the Constitution. Further, it was also ruled that
Section 6, Article X was violated because the Cityhood Laws infringed on
the "just share" that petitioner and petitioners-in-intervention shall receive
from the national taxes (IRA) to be automatically released to them.
Upon more profound reflection and deliberation, we declare that there
was valid classification, and the Cityhood Laws do not violate the equal
protection clause.
As this Court has ruled, the equal protection clause of the 1987
Constitution permits a valid classification, provided that it: (1) rests on
substantial distinctions; (2) is germane to the purpose of the law; (3) is
not limited to existing conditions only; and (4) applies equally to all
members of the same class.12
The petitioners argue that there is no substantial distinction between
municipalities with pending cityhood bills in the 11th Congress and
municipalities that did not have pending bills, such that the mere
pendency of a cityhood bill in the 11th Congress is not a material
difference to distinguish one municipality from another for the purpose of
the income requirement. This contention misses the point.
It should be recalled from the above quoted portions of the interpellation
by Senate President Drilon of Senator Pimentel that the purpose of the
enactment of R.A. No 9009 was merely to stop the "mad rush of
municipalities wanting to be converted into cities" and the apprehension
that before long the country will be a country of cities and without
municipalities. It should be pointed out that the imposition of the P100
million average annual income requirement for the creation of component
cities was arbitrarily made. To be sure, there was no evidence or
empirical data, such as inflation rates, to support the choice of this
amount. The imposition of a very high income requirement of P100
million, increased from P20 million, was simply to make it extremely
difficult for municipalities to become component cities. And to highlight
such arbitrariness and the absurdity of the situation created thereby, R.A.
No. 9009 has, in effect, placed component cities at a higher standing than
highly urbanized cities under Section 452 of the LGC, to wit
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 with the latest annual income of at least
Fifty Million Pesos (P50,000,000.00) based on 1991 constant prices, as

certified by the city treasurer, shall be classified as highly urbanized

cities.

16. Sorsogon City

30,403,324.59

(b) Cities which do not meet above requirements shall be considered

component cities of the province in which they are geographically
located. (Emphasis supplied)

17. Maasin City

30,572,113.65

18. Escalante City

32,113,970.00

19. Iriga City

32,757,871.44

20. Gapan City

34,254,986.47

21. Candon City

36,327,705.86

22. Gingoog City

37,327,705.86

23. Masbate City

39,454,508.28

24. Passi City

40,314,620.00

The P100 million income requirement imposed by R.A. No. 9009, being
an arbitrary amount, cannot be conclusively said to be the only amount
"sufficient, based on acceptable standards, to provide for all essential
government facilities and services and special functions
commensurate with the size of its population," per Section 713 of the
LGC. It was imposed merely because it is difficult to comply with. While it
could be argued that P100 million, being more than P20 million, could, of
course, provide the essential government facilities, services, and special
functions vis--vis the population of a municipality wanting to become a
component city, it cannot be said that the minimum amount of P20 million
would be insufficient. This is evident from the existing cities whose
income, up to now, do not comply with the P100 million income
requirement, some of which have lower than the P20 million average
annual income. Consider the list14below

CITY

AVERAGE ANNUAL
INCOME

25. Calbayog City

40,943,128.73

1. Marawi City

5,291,522.10

26. Calapan City

41,870,239.21

2. Palayan City

6,714,651.77

27. Cadiz City

43,827,060.00

3. Sipalay City

9,713,120.00

28. Alaminos City

44,352,501.00

4. Canlaon City

13,552,493.79

29. Bais City

44, 646,826.48

5. Himamaylan City

15,808,530.00

30. San Carlos City

46,306,129.13

6. Isabela City

16,811,246.79

31. Silay City

47,351,730.00

7. Munoz City

19,693,358.61

32. Bislig City

47,360,716.24

8. Dapitan City

20,529,181.08

33. Tacurong City

49,026,281.56

9. Tangub City

20,943,810.04

34. Talisay City (Negros

Occidental)

52,609,790.00

10. Bayawan City

22,943,810.04
35. Kabankalan City

53,560,580.00

36. Malaybalay City

54,423,408.55

37. La Carlota City

54,760,290.00

38. Vigan City

56,831,797.19

39. Balanga City

61,556,700.49

40. Sagay City

64,266,350.00

11. Island Garden City of Samal

12. Tanjay City

13. Tabaco City

14. Oroquieta City

15. Ligao City

23,034,731.83

23,723,612.44

24,152,853.71

24,279,966.51

28,326,745.86

41. Cavite City

64,566,079.05

42. Koronadal City

66,231,717.19

43. Cotabato City

66,302,114.52

44. Toledo City

70,157,331.12

45. San Jose City

70,309,233.43

46. Danao City

72,621,955.30

47. Bago City

74,305,000.00

48. Valencia City

74,557,298.92

49. Victorias City

75,757,298.92

50. Cauayan City

82,949,135.46

51. Santiago City

83,816,025.89

SECTION 2. Declaration of Policy.(a) It is hereby declared the policy of

the State that the territorial and political subdivisions of the State shall
enjoy genuine and meaningful local autonomy to enable them to attain
their fullest development as self-reliant communities and make them
more effective partners in the attainment of national goals. Toward this
end, the State shall provide for a more responsive and accountable local
government structure instituted through a system of decentralization
whereby local government units shall be given more powers, authority,
responsibilities and resources. The process of decentralization shall
proceed from the National Government to the local government units.
Indeed, substantial distinction lies in the capacity and viability of
respondent municipalities to become component cities of their respective
provinces. Congress, by enacting the Cityhood Laws, recognized this
capacity and viability of respondent municipalities to become the States
partners in accelerating economic growth and development in the
provincial regions, which is the very thrust of the LGC, manifested by the
pendency of their cityhood bills during the 11th Congress and their
relentless pursuit for cityhood up to the present. Truly, the urgent need to
become a component city arose way back in the 11th Congress, and
such condition continues to exist.
Petitioners in these cases complain about the purported reduction of their
"just share" in the IRA. To be sure, petitioners are entitled to a "just
share," not a specific amount. But the feared reduction proved to be false
when, after the implementation of the Cityhood Laws, their respective
shares increased, not decreased. Consider the table15 below
1avvphi1

52. Roxas City

85,397,830.00
CITY

CY 2006 IRA
(Before Implementation of Sixteen [16] Cityhood
Laws)

CY
(Ac
Law

53. Dipolog City

85,503,262.85

54. Trece Martires City

87,413,786.64

Bais

219,338,056.00

242

55. Talisay City (Cebu)

87,964,972.97

Batangas

334,371,984.00

388

56. Ozamis city

89,054,056.12

Bayawan

353,150,158.00

388

57. Surigao City

89,960,971.33

Cadiz

329,491,285.00

361

58. Panabo City

91,425,301.39

Calapan

227,772,199.00

252

59. Digos City

92,647,699.13

Calbayog

438,603,378.00

485

The undeniable fact that these cities remain viable as component cities of
their respective provinces emphasizes the arbitrariness of the amount
of P100 million as the new income requirement for the conversion of
municipalities into component cities. This arbitrariness can also be clearly
gleaned from the respective distinctive traits and level of economic
development of the individual respondent municipalities as above
submitted.

Cauayan

250,477,157.00

277

Gen. Santos

518,388,557.00

631

Gingoog

314,425,637.00

347

Verily, the determination of the existence of substantial distinction with

respect to respondent municipalities does not simply lie on the mere
pendency of their cityhood bills during the 11th Congress. This Court
sees the bigger picture. The existence of substantial distinction with
respect to respondent municipalities covered by the Cityhood Laws is
measured by the purpose of the law, not by R.A. No. 9009, but by the
very purpose of the LGC, as provided in its Section 2 (a), thus

Himamaylan

248,154,381.00

277

Iloilo

358,394,268.00

412

Iriga

183,132,036.00

203

Legaspi

235,314,016.00

SENATOR
PIMENTEL. Yes, Mr. President, with pleasure. There are
266,537,785.00
three requirements. One is financial.

Ligao

215,608,112.00

SENATOR
SOTTO. All right. It used to be P20 million.
239,696,441.00

Oroquieta

191,803,213.00

SENATOR PIMENTEL. It is P20 million. Now we are raising it to P100

211,449,720.00
million
of locally generated funds.

Pagadian

292,788,255.00

SENATOR SOTTO. In other words, the P20 million before includes the
327,401,672.00
IRA.

San Carlos

239,524,249.00

SENATOR
PIMENTEL. No, Mr. President.
260,515,711.00
SENATOR SOTTO. It should not have been included?

San
Fernando

182,320,356.00

Santiago

508,326,072.00

Silay

216,372,314.00

Surigao

233,968,119.00

Tacurong

179,795,271.00

Tagaytay

130,159,136.00

Tarlac

348,186,756.00

Tangub

162,248,610.00

SENATOR
SOTTO. I am glad that the sponsor, Mr. President, has
152,445,295.00
spread that into the Record because otherwise, if he did not mention the
Department of Finance and the Department of Budget and Management,
405,611,581.00
then
I would have been blamed for the misinterpretation. But anyway, the
gentleman is correct. That was the interpretation given to us during the
hearings.
180,640,621.00

Urdaneta

187,721,031.00

So now, from P20 million, we make it P100 million from locally generated
income
as far as population is concerned.
207,129,386.00

Victorias

176,367,959.00

SENATOR PIMENTEL. As far as population is concerned, there will be

no194,162,687.00
change, Mr. President. Still 150,000.

Zamboanga

918,013,016.00

SENATOR SOTTO. Still 150,000?

1,009,972,704.00

204,140,940.00
SENATOR PIMENTEL. The internal revenue share should never have
been included. That was not the intention when we first crafted the Local
Government Code. The financial capacity was supposed to be
563,679,572.00
demonstrated by the municipality wishing to become a city by its own
effort, meaning to say, it should not rely on the internal revenue share
that
comes from the government. Unfortunately, I think what happened in
241,363,845.00
past conversions of municipalities into cities was, the Department of
Budget and Management, along with the Department of Finance, had
260,708,071.00
included
the internal revenue share as a part of the municipality,
demonstration that they are now financially capable and can measure up
to the requirement of the Local Government Code of having a revenue of
197,880,665.00
at least P20 million.

SENATOR PIMENTEL. Yes.

What these petitioner cities were stating as a reduction of their respective
IRA shares was based on a computation of what they would receive if
respondent municipalities were not to become component cities at all. Of
course, that would mean a bigger amount to which they have staked their
claim. After considering these, it all boils down to money and how much
more they would receive if respondent municipalities remain as
municipalities and not share in the 23% fixed IRA from the national
government for cities.
Moreover, the debates in the Senate on R.A. No. 9009, should prove
enlightening:

SENATOR SOTTO. And then the land area?

SENATOR PIMENTEL. As to the land area, there is no change; it is still
100 square kilometers.
SENATOR SOTTO. But before it was "either/or"?
SENATOR PIMENTEL. That is correct. As long as it has one of the three
requirements, basically, as long as it meets the financial requirement,
then it may meet the territorial requirement or the population requirement.

SENATOR SOTTO. Mr. President, we just want to be enlightened again

on the previous qualification and the present one being proposed. Before
there were three

SENATOR SOTTO. So, it remains "or"?

SENATOR PIMENTEL. There are three requisites for a municipality to

become a city. Let us start with the finance.

SENATOR SOTTO. AND?

SENATOR SOTTO. Will the distinguished sponsor please refresh us? I

used to be the chairman of the Committee on Local Government, but the
new job that was given to me by the Senate has erased completely my
memory as far as the Local Government Code is concerned.

SENATOR PIMENTEL. We are now changing it into AND.

SENATOR PIMENTEL. Yes.

SENATOR SOTTO. I see.
SENATOR PIMENTEL. That is the proposal, Mr. President. In other
words

SENATOR SOTTO. Does the gentleman not think there will no longer be
any municipality that will qualify, Mr. President?
SENATOR PIMENTEL. There may still be municipalities which can
qualify, but it will take a little time. They will have to produce more babies.
I do not knowexpand their territories, whatever, by reclamation or
otherwise. But the whole proposal is geared towards making it difficult for
municipalities to convert into cities.
On the other hand, I would like to advert to the fact that in the
amendments that we are proposing for the entire Local Government
Code, we are also raising the internal revenue share of the municipalities.
SENATOR SOTTO. I see.
SENATOR PIMENTEL. So that, more or less, hindi naman sila dehado in
this particular instance.
SENATOR SOTTO. Well, then, because of that information, Mr.
President, I throw my full support behind the measure.
Thank you, Mr. President.
SENATOR PIMENTEL. Thank you very much, Mr. President. (Emphasis
supplied)16
From the foregoing, the justness in the act of Congress in enacting the
Cityhood Laws becomes obvious, especially considering that 33
municipalities were converted into component cities almost immediately
prior to the enactment of R.A. No. 9009. In the enactment of the Cityhood
Laws, Congress merely took the 16 municipalities covered thereby from
the disadvantaged position brought about by the abrupt increase in the
income requirement of R.A. No. 9009, acknowledging the "privilege" that
they have already given to those newly-converted component cities,
which prior to the enactment of R.A. No. 9009, were undeniably in the
same footing or "class" as the respondent municipalities. Congress
merely recognized the capacity and readiness of respondent
municipalities to become component cities of their respective provinces.
Petitioners complain of the projects that they would not be able to pursue
and the expenditures that they would not be able to meet, but totally
ignored the respondent municipalities obligations arising from the
contracts they have already entered into, the employees that they have
already hired, and the projects that they have already initiated and
completed as component cities. Petitioners have completely overlooked
the need of respondent municipalities to become effective vehicles
intending to accelerate economic growth in the countryside. It is like the
elder siblings wanting to kill the newly-borns so that their inheritance
would not be diminished.
Apropos is the following parable:
There was a landowner who went out at dawn to hire workmen for his
vineyard. After reaching an agreement with them for the usual daily
wage, he sent them out to his vineyard. He came out about midmorning
and saw other men standing around the marketplace without work, so he
said to them, "You too go along to my vineyard and I will pay you
whatever is fair." They went. He came out again around noon and midafternoon and did the same. Finally, going out in late afternoon he found
still others standing around. To these he said, "Why have you been
standing here idle all day?" "No one has hired us," they told him. He said,
"You go to the vineyard too." When evening came, the owner of the
vineyard said to his foreman, "Call the workmen and give them their pay,
but begin with the last group and end with the first." When those hired
late in the afternoon came up they received a full days pay, and when
the first group appeared they thought they would get more, yet they
received the same daily wage. Thereupon they complained to the owner,
"This last group did only an hours work, but you have paid them on the

same basis as us who have worked a full day in the scorching heat." "My
friend," he said to one in reply, "I do you no injustice. You agreed on the
usual wage, did you not? Take your pay and go home. I intend to give
this man who was hired last the same pay as you. I am free to do as I
please with my money, am I not? Or are you envious because I am
generous?"17
Congress, who holds the power of the purse, in enacting the Cityhood
Laws, only sought the well-being of respondent municipalities, having
seen their respective capacities to become component cities of their
provinces, temporarily stunted by the enactment of R.A. No. 9009. By
allowing respondent municipalities to convert into component cities,
Congress desired only to uphold the very purpose of the LGC, i.e., to
make the local government units "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," which is the very mandate of the Constitution.
Finally, we should not be restricted by technical rules of procedure at the
expense of the transcendental interest of justice and equity. While it is
true that litigation must end, even at the expense of errors in judgment, it
is nobler rather for this Court of last resort, as vanguard of truth, to toil in
order to dispel apprehensions and doubt, as the following pronouncement
of this Court instructs:
The right and power of judicial tribunals to declare whether enactments of
the legislature exceed the constitutional limitations and are invalid has
always been considered a grave responsibility, as well as a solemn duty.
The courts invariably give the most careful consideration to questions
involving the interpretation and application of the Constitution, and
approach constitutional questions with great deliberation, exercising their
power in this respect with the greatest possible caution and even
reluctance; and they should never declare a statute void, unless its
invalidity is, in their judgment, beyond reasonable doubt. To justify a court
in pronouncing a legislative act unconstitutional, or a provision of a state
constitution to be in contravention of the Constitution x x x, the case must
be so clear to be free from doubt, and the conflict of the statute with the
constitution must be irreconcilable, because it is but a decent respect to
the wisdom, the integrity, and the patriotism of the legislative body by
which any law is passed to presume in favor of its validity until the
contrary is shown beyond reasonable doubt. Therefore, in no doubtful
case will the judiciary pronounce a legislative act to be contrary to the
constitution. To doubt the constitutionality of a law is to resolve the doubt
in favor of its validity.18
WHEREFORE, the Motion for Reconsideration of the "Resolution" dated
August 24, 2010, dated and filed on September 14, 2010 by respondents
Municipality of Baybay, et al. is GRANTED. The Resolution dated August
24, 2010 is REVERSED and SET ASIDE. The Cityhood LawsRepublic
Acts Nos. 9389, 9390, 9391, 9392, 9393, 9394, 9398, 9404, 9405, 9407,
9408, 9409, 9434, 9435, 9436, and 9491are declared
CONSTITUTIONAL.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 180050

February 10, 2010

RODOLFO G. NAVARRO, VICTOR F. BERNAL, and RENE O.

MEDINA, Petitioners,
vs.
EXECUTIVE SECRETARY EDUARDO ERMITA, representing the
President of the Philippines; Senate of the Philippines, represented

by the SENATE PRESIDENT; House of Representatives, represented by

the HOUSE SPEAKER; GOVERNOR ROBERT ACE S. BARBERS,
representing the mother province of Surigao del Norte; GOVERNOR
GERALDINE ECLEO VILLAROMAN, representing the new Province of
Dinagat Islands, Respondents.
DECISION
PERALTA, J.:
This is a petition for certiorari under Rule 65 of the Rules of Court seeking
to nullify Republic Act (R.A.) No. 9355, otherwise known as An Act
Creating the Province of Dinagat Islands, for being unconstitutional.
Petitioners Rodolfo G. Navarro, Victor F. Bernal, and Rene O. Medina
aver that they are taxpayers and residents of the Province of Surigao del
Norte. They have served the Province of Surigao del Norte once as ViceGovernor and members of the Provincial Board, respectively. They claim
to have previously filed a similar petition, which was dismissed on
technical grounds.1 They allege that the creation of the Dinagat Islands
as a new province, if uncorrected, perpetuates an illegal act of Congress,
and unjustly deprives the people of Surigao del Norte of a large chunk of
its territory, Internal Revenue Allocation and rich resources from the area.
The facts are as follows:
The mother province of Surigao del Norte was created and established
under R.A. No. 2786 on June 19, 1960. The province is composed of
three main groups of islands: (1) the Mainland and Surigao City; (2)
Siargao Island and Bucas Grande; and (3) Dinagat Island, which is
composed of seven municipalities, namely, Basilisa, Cagdianao, Dinagat,
Libjo, Loreto, San Jose, and Tubajon.
Based on the official 2000 Census of Population and Housing conducted
by the National Statistics Office (NSO),2the population of the Province of
Surigao del Norte as of May 1, 2000 was 481,416, broken down as
follows:
Mainland 281,111
Surigao City 118,534
Siargao Island & Bucas Grande 93,354
Dinagat Island 106,951
Under Section 461 of R.A. No. 7610, otherwise known as The Local
Government Code, a province may be created if it has an average annual
income of not less than P20 million based on 1991 constant prices as
certified by the Department of Finance, and a population of not less than
250,000 inhabitants as certified by the NSO, or a contiguous territory of at
least 2,000 square kilometers as certified by the Lands Management
Bureau. The territory need not be contiguous if it comprises two or more
islands or is separated by a chartered city or cities, which do not
contribute to the income of the province.
On April 3, 2002, the Office of the President, through its Deputy
Executive Secretary for Legal Affairs, advised the Sangguniang
Panlalawigan of the Province of Surigao del Norte of the deficient
population in the proposed Province of Dinagat Islands.3
In July 2003, the Provincial Government of Surigao del Norte conducted
a special census, with the assistance of an NSO District Census
Coordinator, in the Dinagat Islands to determine its actual population in
support of the house bill creating the Province of Dinagat Islands. The
special census yielded a population count of 371,576 inhabitants in the
proposed province. The NSO, however, did not certify the result of the
special census. On July 30, 2003, Surigao del Norte Provincial Governor

Robert Lyndon S. Barbers issued Proclamation No. 01, which declared

as official, for all purposes, the 2003 Special Census in Dinagat Islands
showing a population of 371,576.4
The Bureau of Local Government Finance certified that the average
annual income of the proposed Province of Dinagat Islands for calendar
year 2002 to 2003 based on the 1991 constant prices
was P82,696,433.23. The land area of the proposed province is 802.12
square kilometers.
On August 14, 2006 and August 28, 2006, the Senate and the House of
Representatives, respectively, passed the bill creating the Province of
Dinagat Islands. It was approved and enacted into law as R.A. No. 9355
on October 2, 2006 by President Gloria Macapagal-Arroyo.
On December 2, 2006, a plebiscite was held in the mother Province of
Surigao del Norte to determine whether the local government units
directly affected approved of the creation of the Province of Dinagat
Islands into a distinct and independent province comprising the
municipalities of Basilisa, Cagdianao, Dinagat, Libjo (Albor), Loreto, San
Jose, and Tubajon. The result of the plebiscite yielded 69,943 affirmative
votes and 63,502 negative votes.5
On December 3, 2006, the Plebiscite Provincial Board of Canvassers
proclaimed that the creation of Dinagat Islands into a separate and
distinct province was ratified and approved by the majority of the votes
cast in the plebiscite.6
On January 26, 2007, a new set of provincial officials took their oath of
office following their appointment by President Gloria Macapagal-Arroyo.
Another set of provincial officials was elected during the synchronized
national and local elections held on May 14, 2007. On July 1, 2007, the
elected provincial officials took their oath of office; hence, the Province of
Dinagat Islands began its corporate existence.7
Petitioners contended that the creation of the Province of Dinagat Islands
under R.A. No. 9355 is not valid because it failed to comply with either
the population or land area requirement prescribed by the Local
Government Code.
Petitioners prayed that R.A. No. 9355 be declared unconstitutional, and
that all subsequent appointments and elections to the new vacant
positions in the newly created Province of Dinagat Islands be declared
null and void. They also prayed for the return of the municipalities of the
Province of Dinagat Islands and the return of the former districts to the
mother Province of Surigao del Norte.
Petitioners raised the following issues:
I
WHETHER OR NOT REPUBLIC ACT NO. 9355, CREATING THE NEW
PROVINCE OF DINAGAT ISLANDS, COMPLIED WITH THE
CONSTITUTION AND STATUTORY REQUIREMENTS UNDER
SECTION 461 OF REPUBLIC ACT NO. 7160, OTHERWISE KNOWN AS
THE LOCAL GOVERNMENT CODE OF 1991.
II
WHETHER OR NOT THE CREATION OF DINAGAT AS A NEW
PROVINCE BY THE RESPONDENTS IS AN ACT OF
GERRYMANDERING.
III
WHETHER OR NOT THE RESULT OF THE PLEBISCITE IS CREDIBLE
AND TRULY REFLECTS THE MANDATE OF THE PEOPLE.8

In her Memorandum, respondent Governor Geraldine B. EcleoVillaroman of the Province of Dinagat Islands raises procedural issues.
She contends that petitioners do not have the legal standing to question
the constitutionality of the creation of the Province of Dinagat, since they
have not been directly injured by its creation and are without substantial
interest over the matter in controversy. Moreover, she alleges that the
petition is moot and academic because the existence of the Province of
Dinagat Islands has already commenced; hence, the petition should be
dismissed.
The contention is without merit.
In Coconut Oil Refiners Association, Inc. v. Torres,9 the Court held that in
cases of paramount importance where serious constitutional questions
are involved, the standing requirements may be relaxed and a suit may
be allowed to prosper even where there is no direct injury to the party
claiming the right of judicial review. In the same vein, with respect to
other alleged procedural flaws, even assuming the existence of such
defects, the Court, in the exercise of its discretion, brushes aside these
technicalities and takes cognizance of the petition considering its
importance and in keeping with the duty to determine whether the other
branches of the government have kept themselves within the limits of the
Constitution.10
Further, supervening events, whether intended or accidental, cannot
prevent the Court from rendering a decision if there is a grave violation of
the Constitution.11 The courts will decide a question otherwise moot and
academic if it is capable of repetition, yet evading review.12
The main issue is whether or not R.A. No. 9355 violates Section 10,
Article X of the Constitution.
Petitioners contend that the proposed Province of Dinagat Islands is not
qualified to become a province because it failed to comply with the land
area or the population requirement, despite its compliance with the
income requirement. It has a total land area of only 802.12 square
kilometers, which falls short of the statutory requirement of at least 2,000
square kilometers. Moreover, based on the NSO 2000 Census of
Population, the total population of the proposed Province of Dinagat
Islands is only 106,951, while the statutory requirement is a population of
at least 250,000 inhabitants.
Petitioners allege that in enacting R.A. No. 9355 into law, the House of
Representatives and the Senate erroneously relied on paragraph 2 of
Article 9 of the Rules and Regulations Implementing the Local
Government Code of 1991, which states that "[t]he land area requirement
shall not apply where the proposed province is composed of one (1) or
more islands."13 The preceding italicized provision contained in the
Implementing Rules and Regulations is not expressly or impliedly stated
as an exemption to the land area requirement in Section 461 of the Local
Government Code. Petitioners assert that when the Implementing Rules
and Regulations conflict with the law that they seek to implement, the law
prevails.
On the other hand, respondents contend in their respective Memoranda
that the Province of Dinagat Islands met the legal standard for its
creation.1avvphi1
First, the Bureau of Local Government Finance certified that the average
annual income of the proposed Province of Dinagat Islands for the years
2002 to 2003 based on the 1991 constant prices was P82,696,433.25.
Second, the Lands Management Bureau certified that though the land
area of the Province of Dinagat Islands is 802.12 square kilometers, it is
composed of one or more islands; thus, it is exempt from the required
land area of 2,000 square kilometers under paragraph 2 of Article 9 of the
Rules and Regulations Implementing the Local Government Code.

Third, in the special census conducted by the Provincial Government of

Surigao del Norte, with the assistance of a District Census Coordinator of
the NSO, the number of inhabitants in the Province of Dinagat Islands as
of 2003, or almost three years before the enactment of R.A. No. 9355 in
2006, was 371,576, which is more than the minimum requirement of
250,000 inhabitants.
In his Memorandum, respondent Governor Ace S. Barbers contends that
although the result of the special census conducted by the Provincial
Government of Surigao del Norte on December 2, 2003 was never
certified by the NSO, it is credible since it was conducted with the aid of a
representative of the NSO. He alleged that the lack of certification by the
NSO was cured by the presence of NSO officials, who testified during the
deliberations on House Bill No. 884 creating the Province of Dinagat
Islands, and who questioned neither the conduct of the special census
nor the validity of the result.
The Ruling of the Court
The petition is granted.
The constitutional provision on the creation of a province in Section 10,
Article X of the Constitution states:
SEC. 10. No province, city, municipality, or barangay may be created,
divided, merged, abolished, or its boundary substantially altered, except
in accordance with the criteria established in the local government code
and subject to approval by a majority of the votes cast in a plebiscite in
the political units directly affected."14
Pursuant to the Constitution, the Local Government Code of 1991
prescribed the criteria for the creation of a province, thus:
SEC. 461. Requisites for Creation. -- (a) A province may be created if it
has an average annual income, as certified by the Department of
Finance, of not less than Twenty million pesos (P20,000,000.00) based
on 1991 constant prices and either of the following requisites:
(i) a contiguous territory of at least two thousand (2,000) square
kilometers, as certified by the Lands Management Bureau; or
(ii) a population of not less than two hundred fifty thousand (250,000)
inhabitants as certified by the National Statistics Office:
Provided, That, the creation thereof shall not reduce the land area,
population, and income of the original unit or units at the time of said
creation to less than the minimum requirements prescribed herein.
(b) The territory need not be contiguous if it comprises two (2) or more
islands or is separated by a chartered city or cities which do not
contribute to the income of the province.
(c) The average annual income shall include the income accruing to the
general fund, exclusive of special funds, trust funds, transfers, and nonrecurring income.15
As a clarification of the territorial requirement, the Local Government
Code requires a contiguous territory of at least 2,000 square kilometers,
as certified by the Lands Management Bureau. However, the
territory need not be contiguous if it comprises two (2) or more islands or
is separated by a chartered city or cities that do not contribute to the
income of the province.
If a proposed province is composed of two or more islands, does
"territory," under Sec. 461 of the Local Government Code, include not
only the land mass above the water, but also that which is beneath it?
To answer the question above, the discussion in Tan v. Commission on
Elections (COMELEC)16 is enlightening.

In Tan v. COMELEC, petitioners therein contended that Batas Pambansa

Blg. 885, creating the new Province of Negros del Norte, was
unconstitutional for it was not in accord with Art. XI, Sec. 3 of the
Constitution, and Batas Pambansa Blg. 337, the former Local
Government Code. Although what was applicable then was the 1973
Constitution and the former Local Government Code, the provisions
pertinent to the case are substantially similar to the provisions in this
case.
Art. XI, Sec. 3 of the 1973 Constitution provides:
Sec. 3. No province, city, municipality or barrio (barangay in the 1987
Constitution) 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.
The requisites for the creation of a province in Sec. 197 of Batas
Pambansa Blg. 337 are similar to the requisites in Sec. 461 of the Local
Government Code of 1991, but the requirements for population and
territory/land area are lower now, while the income requirement is higher.
Sec. 197 of Batas Pambansa Blg. 337, the former Local Government
Code, provides:
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 section. The territory need not be
contiguous if it comprises two or more islands.
The average estimated annual income shall include the income allotted
for both the general and infrastructure funds, exclusive of trust funds,
transfers and nonrecurring income.17
In Tan v. COMELEC, petitioners therein filed a case for Prohibition for the
purpose of stopping the COMELEC from conducting the plebiscite
scheduled on January 3, 1986. Since the Court was in recess, it was
unable to consider the petition on time. Petitioners filed a supplemental
pleading, averring that the plebiscite sought to be restrained by them was
held as scheduled, but there were still serious issues raised in the case
affecting the legality, constitutionality and validity of such exercise which
should properly be passed upon and resolved by the Court.
At issue in Tan was the land area of the new Province of Negros del
Norte, and the validity of the plebiscite, which did not include voters of the
parent Province of Negros Occidental, but only those living within the
territory of the new Province of Negros del Norte.
The Court held that the plebiscite should have included the people living
in the area of the proposed new province and those living in the parent
province. However, the Court did not direct the conduct of a new
plebiscite, because the factual and legal basis for the creation of the new
province did not exist as it failed to satisfy the land area requirement;
hence, Batas Pambansa Blg. 885, creating the new Province of Negros
del Norte, was declared unconstitutional. The Court found that the land
area of the new province was only about 2,856 square kilometers, which
was below the statutory requirement then of 3,500 square kilometers.
Respondents in Tan insisted that when the Local Government Code
speaks of the required territory of the province to be created, what is
contemplated is not only the land area, but also the land and water over
which the said province has jurisdiction and control. The respondents
submitted 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.
The Court stated that "[s]uch an interpretation is strained, incorrect and
fallacious."18 It held:
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, [n]ext, 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).19
The discussion of the Court in Tan on the definition and usage of the
terms "territory," and "contiguous," and the meaning of the provision, "The
territory need not be contiguous if it comprises two or more islands,"
contained in Sec. 197 of the former Local Government Code, which
provides for the requisites in the creation of a new province, is applicable
in this case since there is no reason for a change in their respective
definitions, usage, or meaning in its counterpart provision in the present
Local Government Code contained in Sec. 461 thereof.
The territorial requirement in the Local Government Code is adopted in
the Rules and Regulations Implementing the Local Government Code of
1991 (IRR),20 thus:
ART. 9. Provinces.(a) Requisites for creationA 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
nonrecurring income; and
(2) Population or land area - Population which shall not be less than two
hundred fifty thousand (250,000) inhabitants, as certified by National
Statistics Office; 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.

However, the IRR went beyond the criteria prescribed by Section 461 of
the Local Government Code when it added the italicized portion above
stating that "[t]he land area requirement shall not apply where the
proposed province is composed of one (1) or more islands." Nowhere in
the Local Government Code is the said provision stated or implied. Under
Section 461 of the Local Government Code, the only instance when the
territorial or land area requirement need not be complied with is when
there is already compliance with the population requirement. The
Constitution requires that the criteria for the creation of a province,
including any exemption from such criteria, must all be written in the
Local Government Code.21 There is no dispute that in case of
discrepancy between the basic law and the rules and regulations
implementing the said law, the basic law prevails, because the rules and
regulations cannot go beyond the terms and provisions of the basic
law.22
Hence, the Court holds that the provision in Sec. 2, Art. 9 of the IRR
stating that "[t]he land area requirement shall not apply where the
proposed province is composed of one (1) or more islands" is null and
void.
Respondents, represented by the Office of the Solicitor General, argue
that rules and regulations have the force and effect of law as long as they
are germane to the objects and purposes of the law. They contend that
the exemption from the land area requirement of 2,000 square kilometers
is germane to the purpose of the Local Government Code to develop
political and territorial subdivisions into self-reliant communities and make
them more effective partners in the attainment of national goals.23 They
assert that in Holy Spirit Homeowners Association, Inc. v.
Defensor,24 the Court declared as valid the implementing rules and
regulations of a statute, even though the administrative agency added
certain provisions in the implementing rules that were not found in the
law.
In Holy Spirit Homeowners Association, Inc. v. Defensor, the provisions in
the implementing rules and regulations, which were questioned by
petitioner therein, merely filled in the details in accordance with a known
standard. The law that was questioned was R.A. No. 9207, otherwise
known as "National Government Center (NGC) Housing and Land
Utilization Act of 2003." It was therein declared that the "policy of the
State [was] to secure the land tenure of the urban poor. Toward this end,
lands located in the NGC, Quezon City shall be utilized for housing,
socioeconomic, civic, educational, religious and other purposes." Section
5 of R.A. No. 9207 created the National Government Center
Administration Committee, which was tasked to administer, formulate the
guidelines and policies and implement the land disposition of the areas
covered by the law.
Petitioners therein contended that while Sec. 3.2 (a.1) of the IRR fixed
the selling rate of a lot at P700.00 per sq. m., R.A. No. 9207 did not
provide for the price. In addition, Sec. 3.2 (c.1) of the IRR penalizes a
beneficiary who fails to execute a contract to sell within six (6) months
from the approval of the subdivision plan by imposing a price escalation,
while there is no such penalty imposed by R.A. No. 9207. Thus, they
conclude that the assailed provisions conflict with R.A. No. 9207 and
should be nullified.
In Holy Spirit Homeowners Association, Inc., the Court held:
Where a rule or regulation has a provision not expressly stated or
contained in the statute being implemented, that provision does not
necessarily contradict the statute. A legislative rule is in the nature of
subordinate legislation, designed to implement a primary legislation by
providing the details thereof. All that is required is that the regulation
should be germane to the objects and purposes of the law; that the
regulation be not in contradiction to but in conformity with the standards
prescribed by the law.

In Section 5 of R.A. No. 9207, the Committee is granted the power to

administer, formulate guidelines and policies, and implement the
disposition of the areas covered by the law. Implicit in this authority and
the statutes objective of urban poor housing is the power of the
Committee to formulate the manner by which the reserved property may
be allocated to the beneficiaries. Under this broad power, the Committee
is mandated to fill in the details such as the qualifications of beneficiaries,
the selling price of the lots, the terms and conditions governing the sale
and other key particulars necessary to implement the objective of the law.
These details are purposely omitted from the statute and their
determination is left to the discretion of the Committee because the latter
possesses special knowledge and technical expertise over these matters.
The Committees authority to fix the selling price of the lots may be
likened to the rate-fixing power of administrative agencies. In case of a
delegation of rate-fixing power, the only standard which the legislature is
required to prescribe for the guidance of the administrative authority is
that the rate be reasonable and just. However, it has been held that even
in the absence of an express requirement as to reasonableness, this
standard may be implied. In this regard, petitioners do not even claim that
the selling price of the lots is unreasonable.
The provision on the price escalation clause as a penalty imposed to a
beneficiary who fails to execute a contract to sell within the prescribed
period is also within the Committees authority to formulate guidelines
and policies to implement R.A. No. 9207. The Committee has the power
to lay down the terms and conditions governing the disposition of said
lots, provided that these are reasonable and just. There is nothing
objectionable about prescribing a period within which the parties must
execute the contract to sell. This condition can ordinarily be found in a
contract to sell and is not contrary to law, morals, good customs, public
order, or public policy.25
Hence, the provisions in the implementing rules and regulations that were
questioned in Holy Spirit Homeowners Association, Inc. merely filled in
the necessary details to implement the objective of the law in accordance
with a known standard, and were thus germane to the purpose of the law.
In this case, the pertinent provision in the IRR did not fill in any detail in
accordance with a known standard provided for by the law. Instead, the
IRR added an exemption to the standard or criteria prescribed by the
Local Government Code in the creation of a province as regards the land
area requirement, which exemption is not found in the Code. As such, the
provision in the IRR that the land area requirement shall not apply where
the proposed province is composed of one or more islands is not in
conformity with the standard or criteria prescribed by the Local
Government Code; hence, it is null and void.
Contrary to the contention of respondents, the extraneous provision
cannot be considered as germane to the purpose of the law to develop
territorial and political subdivisions into self-reliant communities because,
in the first place, it already conflicts with the criteria prescribed by the law
in creating a territorial subdivision.
Further, citing Galarosa v. Valencia,26 the Office of the Solicitor General
contends that the IRRs issued by the Oversight Committee composed of
members of the legislative and executive branches of the government are
entitled to great weight and respect, as they are in the nature of executive
construction.
The case is not in point. In Galarosa, the issue was whether or not
Galarosa could continue to serve as a member of the Sangguniang
Bayan beyond June 30, 1992, the date when the term of office of the
elective members of theSangguniang Bayan of Sorsogon expired.
Galarosa was the incumbent president of the Katipunang Bayan or
Association of Barangay Councils (ABC) of the Municipality of Sorsogon,
Province of Sorsogon; and was appointed as a member of
the Sangguniang Bayan (SB) of Sorsogon pursuant to Executive Order

No. 342 in relation to Sec. 146 of Batas Pambansa Blg. 337, the former
Local Government Code.
Sec. 494 of the Local Government Code of 199127 states that the duly
elected presidents of the liga [ng mga barangay] at the municipal, city
and provincial levels, including the component cities and municipalities of
Metropolitan Manila, shall serve as ex officio members of
the sangguniang bayan, sangguniang panglungsod, and sangguniang
panlalawigan, respectively. They shall serve as such only during their
term of office as presidents of the liga chapters which, in no case, shall
be beyond the term of office of the sanggunian concerned. The section,
however, does not fix the specific duration of their term as liga president.
The Court held that this was left to the by-laws of the liga pursuant to Art.
211(g) of the Rules and Regulations Implementing the Local Government
Code of 1991. Moreover, there was no indication that Secs. 49128 and
494 should be given retroactive effect to adversely affect the presidents
of the ABC; hence, the said provisions were to be applied prospectively.
The Court stated that there is no law that prohibits ABC presidents from
holding over as members of theSangguniang Bayan. On the contrary, the
IRR, prepared and issued by the Oversight Committee upon specific
mandate of Sec. 533 of the Local Government Code, expressly
recognizes and grants the hold-over authority to the ABC presidents
under Art. 210, Rule XXIX.29 The Court upheld the application of the
hold-over doctrine in the provisions of the IRR and the issuances of the
DILG, whose purpose was to prevent a hiatus in the government pending
the time when the successor may be chosen and inducted into office.
The Court held that Sec. 494 of the Local Government Code could not
have been intended to allow a gap in the representation of
the barangays, through the presidents of the ABC, in the sanggunian.
Since the term of office of the punong barangays elected in the March 28,
1989 election and the term of office of the presidents of the ABC had not
yet expired, and taking into account the special role conferred upon, and
the broader powers and functions vested in the barangays by the Code, it
was inferred that the Code never intended to deprive thebarangays of
their representation in the sangguniang bayan during the interregnum
when the liga had yet to be formally organized with the election of its
officers.
Under the circumstances prevailing in Galarosa, the Court considered the
relevant provisions in the IRR formulated by the Oversight Committee
and the pertinent issuances of the DILG in the nature of executive
construction, which were entitled to great weight and respect.
Courts determine the intent of the law from the literal language of the law
within the laws four corners.30 If the language of the law is plain, clear
and unambiguous, courts simply apply the law according to its express
terms.31If a literal application of the law results in absurdity, impossibility
or injustice, then courts may resort to extrinsic aids of statutory
construction like the legislative history of the law,32 or may consider the
implementing rules and regulations and pertinent executive issuances in
the nature of executive construction.
In this case, the requirements for the creation of a province contained in
Sec. 461 of the Local Government Code are clear, plain and
unambiguous, and its literal application does not result in absurdity or
injustice. Hence, the provision in Art. 9(2) of the IRR exempting a
proposed province composed of one or more islands from the land-area
requirement cannot be considered an executive construction of the
criteria prescribed by the Local Government Code. It is an extraneous
provision not intended by the Local Government Code and, therefore, is
null and void.
Whether R.A. No. 9355 complied with the requirements of Section 461 of
the Local Government Code in creating the Province of Dinagat Islands

It is undisputed that R.A. No. 9355 complied with the income requirement
specified by the Local Government Code. What is disputed is its
compliance with the land area or population requirement.
R.A. No. 9355 expressly states that the Province of Dinagat Islands
"contains an approximate land area of eighty thousand two hundred
twelve hectares (80,212 has.) or 802.12 sq. km., more or less, including
Hibuson Island and approximately forty-seven (47) islets x x x."33 R.A.
No. 9355, therefore, failed to comply with the land area requirement of
2,000 square kilometers.
The Province of Dinagat Islands also failed to comply with the population
requirement of not less than 250,000 inhabitants as certified by the NSO.
Based on the 2000 Census of Population conducted by the NSO, the
population of the Province of Dinagat Islands as of May 1, 2000 was only
106,951.
Although the Provincial Government of Surigao del Norte conducted a
special census of population in Dinagat Islands in 2003, which yielded a
population count of 371,000, the result was not certified by the NSO as
required by the Local Government Code.34 Moreover, respondents failed
to prove that with the population count of 371,000, the population of the
original unit (mother Province of Surigao del Norte) would not be reduced
to less than the minimum requirement prescribed by law at the time of the
creation of the new province.35
Respondents contended that the lack of certification by the NSO was
cured by the presence of the officials of the NSO during the deliberations
on the house bill creating the Province of Dinagat Islands, since they did
not object to the result of the special census conducted by the Provincial
Government of Surigao del Norte.
The contention of respondents does not persuade.
Although the NSO representative to the Committee on Local Government
deliberations dated November 24, 2005 did not object to the
result of the provincial governments special census, which was
conducted with the assistance of an NSO district census coordinator, it
was agreed by the participants that the said result was not certified by the
NSO, which is the requirement of the Local Government Code. Moreover,
the NSO representative, Statistician II Ma. Solita C. Vergara, stated that
based on their computation, the population requirement of 250,000
inhabitants would be attained by the Province of Dinagat Islands by the
year 2065. The computation was based on the growth rate of the
population, excluding migration.
The pertinent portion of the deliberation on House Bill No. 884 creating
the Province of Dinagat reads:
THE CHAIRMAN (Hon. Alfredo S. Lim): . . . There is no problem with the
land area requirement and to the income requirement. The problem is
with the population requirement.
xxxx
Now because of this question, we would like to make it of record the
stand and reply of National Statistics Office. Can we hear now from Ms.
Solita Vergara?
MS. VERGARA. We only certify population based on the counts
proclaimed by the President. And in this case, we only certify the
population based on the results of the 2000 census of population and
housing.
THE CHAIRMAN. Is that

MS. VERGARA. Sir, as per Batas Pambansa, BP 72, we only follow kung
ano po yong mandated by the law. So, as mandated by the law, we only
certify those counts proclaimed official by the President.
THE CHAIRMAN. But the government of Surigao del Norte is headed by
Governor Robert Lyndon Ace Barbers and they conducted this census in
year 2003 and yours was conducted in year 2000. So, within that time
frame, three years, there could be an increase in population or transfer of
residents, is that possible?
MS. VERGARA. Yes, sir, but then we only conduct census of population
every 10 years and we conduct special census every five years. So, in
this case, maybe by next year, we will be conducting the 2006.
THE CHAIRMAN. But next year will be quite a long time, the matter is
now being discussed on the table. So, is that the only thing you could say
that its not authorized by National Statistics Office?
MS. VERGARA. Yes, sir. We have passed a resolutionorders to the
provincial officesto our provincial offices stating that we can provide
assistance in the conduct, but then we cannot certify the result of the
conduct as official.

nagmamahalan sila. As an offshoot of this undying love, nagkaroon ng

mga anak, hindi ba, pero hindi kasal, its a live-in situation. Ang tanong ko
lang, whether eventually, they got married or not, that love remains. And
we cannot deny also the existence of the offspring out of that love, di ba?
Kayayon lang. Okay. So, we just skip on this.
MS. VERGARA. Your Honor.
REP. ECLEO (GLENDA). Mr. Chairman.
THE CHAIRMAN. Please, Ms. Vergara.
MS. VERGARA. Yong sinasabi nyo po, sir, bale we computed the
estimated population po ng Dinagat Province for the next years. So,
based on our computation, mari-reach po ng Dinagat Provinceyong
requirement na 250,000 population by the year 2065 pa po based on the
growth rates during the period of .
THE CHAIRMAN. 2065?
MS. VERGARA. 2065 po.
xxxx

THE CHAIRMAN. May we hear from the Honorable Governor Robert

Lyndon Ace Barbers, your reply on the statement of the representative
from National Statistics Office.
MR. BARBERS. Thank you, Mr. Chairman, good morning.
Yes, your Honor, we have conducted a special census in the year 2003.
We were accompanied by one of the employees from the Provincial
National Statistics Office. However, we also admit the fact that our
special census or the special census we conducted in 2003 was not
validated or certified by the National Statistics Office, as provided by law.
So, we admit on our part that the certification that I have issued based on
the submission of records of each locality or each municipality from
Dinagat Island[s] were true and correct based on our level, not on
National Statistics Office level.
But with that particular objection of Executive Director Ericta on what we
have conducted, I believe, your Honor, it will be, however, moot and
academic in terms of the provision under the Local Government Code on
the requirements in making one area a province because what we need
is a minimum of 20 million, as stated by the Honorable Chairman and, of
course, the land area. Now, in terms of the land area, Dinagat Island[s] is
exempted because xxx the area is composed of more than one island. In
fact, there are about 47 low tide and high tide, less than 40? xxxx
THE CHAIRMAN. Thank you, Governor. xxxx

THE CHAIRMAN. . . . [T]his is not the center of our argument since, as

stated by the governor, kahit ha huwag na munang i-consider itong
population requirement, eh, nakalagpas naman sila doon sa income and
land area, hindi ba?
Okay. Lets give the floor to Congresswoman Ecleo.
REP. ECLEO (GLENDA). Thank you, Mr. Chairman.
This is in connection with the special census. Before this was done, I
went to the NSO. I talked to Administrator Ericta on the population. Then,
I was told that the population, official population of Dinagat is 106,000.
So, I told them that I want a special census to be conducted because
there are so many houses that were not reached by the government
enumerators, and I want to have my own or our own special census with
the help of the provincial government. So, that is how it was conducted.
Then, they told me that the official population of the proposed province
will be on 2010. But at this moment, that is the official population of
106,000, even if our special census, we came up with 371,000 plus.
So, that is it.
THE CHAIRMAN. Thank you, Congresswoman.
Your insights will be reflected in my reply to Senate President Drilon, so
that he can also answer the letter of Bishop Cabahug.

xxxx
MS. VERGARA. Mr. Chairman, may clarifications lang din po ako.
THE CHAIRMAN. Although the claim of the governor is, even if we hold
in abeyance this questioned requirement, the other two requirements, as
mandated by law, is already achieved the income and the land area.
MS. VERGARA. We do not question po the results of any locally
conducted census, kasi po talagang we provide assistance while theyre
conducting their own census. But then, ang requirement po kasi is, basta
we will not certifywe will not certify any population count as a result
noong kanilang locally conducted census. Eh, sa Local Government
Code po, we all know na ang xxx nire-require nila is a certification
provided by National Statistics Office. Yon po yong requirement, di ba
po?
THE CHAIRMAN. Oo. But a certification, even though not issued, cannot
go against actual reality because thats just a bureaucratic requirement.
Ang ibig kong sabihin, ipagpalagay, a couple isang lalaki, isang babae

THE CHAIRMAN. Please.

MS. VERGARA. Yon po sa sinasabi naming estimated population, we
only based the computation doon sa growth rate lang po talaga,
excluding the migration. xxxx
MR. CHAIRMAN. Nong mga residents.
MS. VERGARA. Yes, sir, natural growth lang po talaga siya.36
To reiterate, when the Dinagat Islands was proclaimed a new province on
December 3, 2006, it had an official population of only 106,951 based on
the NSO 2000 Census of Population. Less than a year after the
proclamation of the new province, the NSO conducted the 2007 Census
of Population. The NSO certified that as of August 1, 2007, Dinagat

Islands had a total population of only 120,813,37 which was still below
the minimum requirement of 250,000 inhabitants.38
In fine, R.A. No. 9355 failed to comply with either the territorial or the
population requirement for the creation of the Province of Dinagat
Islands.
The Constitution clearly mandates that the creation of local government
units must follow the criteria established in the Local Government
Code.39 Any derogation of or deviation from the criteria prescribed in the
Local Government Code violates Sec. 10, Art. X of the Constitution.40
Hence, R.A. No. 9355 is unconstitutional for its failure to comply with the
criteria for the creation of a province prescribed in Sec. 461 of the Local
Government Code.
Whether the creation of the Province of Dinagat Islands is an act of
gerrymandering

action for certiorari under Rule 65 of the Rules of Court, which is a

remedy designed only for the correction of errors of jurisdiction, including
grave abuse of discretion amounting to lack or excess of
jurisdiction.44 Petitioners should have filed the proper action with the
Commission on Elections. However, petitioners admittedly chose not to
avail themselves of the correct remedy.
WHEREFORE, the petition is GRANTED. Republic Act No. 9355,
otherwise known as [An Act Creating the Province of Dinagat Islands], is
hereby declared unconstitutional. The proclamation of the Province of
Dinagat Islands and the election of the officials thereof are declared
NULL and VOID. The provision in Article 9 (2) of the Rules and
Regulations Implementing the Local Government Code of 1991 stating,
"The land area requirement shall not apply where the proposed province
is composed of one (1) or more islands," is declared NULL and VOID.
No costs.
SO ORDERED.

Petitioners contend that the creation of the Province of Dinagat Islands is

an act of gerrymandering on the ground that House Bill No. 884 excluded
Siargao Island, with a population of 118,534 inhabitants, from the new
province for complete political dominance by Congresswoman Glenda
Ecleo-Villaroman. According to petitioners, if Siargao were included in the
creation of the new province, the territorial requirement of 2,000 square
kilometers would have been easily satisfied and the enlarged area would
have a bigger population of 200,305 inhabitants based on the 2000
Census of Population by the NSO. But House Bill No. 884 excluded
Siargao Island, because its inclusion would result in uncertain political
control. Petitioners aver that, in the past, Congresswoman Glenda EcleoVillaroman lost her congressional seat twice to a member of an influential
family based in Siargao. Therefore, the only way to complete political
dominance is by gerrymandering, to carve a new province in Dinagat
Islands where the Philippine Benevolent Members Association (PMBA),
represented by the Ecleos, has the numbers.
The argument of petitioners is unsubstantiated.
"Gerrymandering" is a term employed to describe an apportionment of
representative districts so contrived as to give an unfair advantage to the
party in power.41 Fr. Joaquin G. Bernas, a member of the 1986
Constitutional Commission, defined "gerrymandering" as the formation of
one legislative district out of separate territories for the purpose of
favoring a candidate or a party.42 The Constitution proscribes
gerrymandering, as it mandates each legislative district to comprise, as
far as practicable, a contiguous, compact and adjacent territory.43

Republic of the Philippines

SUPREME COURT
Baguio City
EN BANC
G.R. No. 180050

April 12, 2011

RODOLFO G. NAVARRO, VICTOR F. BERNAL, and RENE O.

MEDINA, Petitioners,
vs.
EXECUTIVE SECRETARY EDUARDO ERMITA, representing the
President of the Philippines; Senate of the Philippines, represented
by the SENATE PRESIDENT; House of Representatives, represented
by the HOUSE SPEAKER; GOVERNOR ROBERT ACE S. BARBERS,
representing the mother province of Surigao del Norte; GOVERNOR
GERALDINE ECLEO VILLAROMAN, representing the new Province
of Dinagat Islands, Respondents,
CONGRESSMAN FRANCISCO T. MATUGAS, HON. SOL T.
MATUGAS, HON. ARTURO CARLOS A. EGAY, JR., HON. SIMEON
VICENTE G. CASTRENCE, HON. MAMERTO D. GALANIDA, HON.
MARGARITO M. LONGOS, and HON. CESAR M.
BAGUNDOL, Intervenors.
RESOLUTION
NACHURA, J.:

As stated by the Office of the Solicitor General, the Province of Dinagat

Islands consists of one island and about 47 islets closely situated
together, without the inclusion of separate territories. It is an
unsubstantiated allegation that the province was created to favor
Congresswoman Glenda Ecleo-Villaroman.
Allegations of fraud and irregularities during the plebiscite cannot be
resolved in a special civil action for certiorari

For consideration of the Court is the Urgent Motion to Recall Entry of

Judgment dated October 20, 2010 filed by Movant-Intervenors1 dated
and filed on October 29, 2010, praying that the Court (a) recall the entry
of judgment, and (b) resolve their motion for reconsideration of the July
20, 2010 Resolution.
To provide a clear perspective of the instant motion, we present
hereunder a brief background of the relevant antecedents

Lastly, petitioners alleged that R.A. No. 9355 was ratified by a doubtful
mandate in a plebiscite held on December 2, 2005, where the "yes votes"
were 69,9343, while the "no votes" were 63,502. They contend that the
100% turnout of voters in the precincts of San Jose, Basilisa, Dinagat,
Cagdianao and Libjo was contrary to human experience, and that the
results were statistically improbable. Petitioners admit that they did not
file any electoral protest questioning the results of the plebiscite, because
they lacked the means to finance an expensive and protracted election
case.

On October 2, 2006, the President of the Republic approved into law

Republic Act (R.A.) No. 9355 (An Act Creating the Province of Dinagat
Islands).2 On December 3, 2006, the Commission on Elections
(COMELEC) conducted the mandatory plebiscite for the ratification of the
creation of the province under the Local Government Code (LGC).3 The
plebiscite yielded 69,943 affirmative votes and 63,502 negative
votes.4 With the approval of the people from both the mother province of
Surigao del

Allegations of fraud and irregularities in the conduct of a plebiscite are

factual in nature; hence, they cannot be the subject of this special civil

Norte and the Province of Dinagat Islands (Dinagat), the President

appointed the interim set of provincial officials who took their oath of

office on January 26, 2007. Later, during the May 14, 2007 synchronized
elections, the Dinagatnons elected their new set of provincial officials who
assumed office on July 1, 2007.5
On November 10, 2006, petitioners Rodolfo G. Navarro, Victor F. Bernal
and Rene O. Medina, former political leaders of Surigao del Norte, filed
before this Court a petition for certiorari and prohibition (G.R. No.
175158) challenging the constitutionality of R.A. No. 9355.6 The Court
dismissed the petition on technical grounds. Their motion for
reconsideration was also denied.7
Undaunted, petitioners, as taxpayers and residents of the Province of
Surigao del Norte, filed another petition for certiorari8 seeking to nullify
R.A. No. 9355 for being unconstitutional. They alleged that the creation of
Dinagat as a new province, if uncorrected, would perpetuate an illegal act
of Congress, and would unjustly deprive the people of Surigao del Norte
of a large chunk of the provincial territory, Internal Revenue Allocation
(IRA), and rich resources from the area. They pointed out that when the
law was passed, Dinagat had a land area of 802.12 square kilometers
only and a population of only 106,951, failing to comply with Section 10,
Article X of the Constitution and of Section 461 of the LGC, on both
counts, viz.

The Republic, represented by the Office of the Solicitor General, and

Dinagat filed their respective motions for reconsideration of the Decision.
In its Resolution12 dated May 12, 2010,13 the Court denied the said
motions.14
Unperturbed, the Republic and Dinagat both filed their respective motions
for leave of court to admit their second motions for reconsideration,
accompanied by their second motions for reconsideration. These motions
were eventually "noted without action" by this Court in its June 29, 2010
Resolution.15
Meanwhile, the movants-intervenors filed on June 18, 2010 a Motion for
Leave to Intervene and to File and to Admit Intervenors Motion for
Reconsideration of the Resolution dated May 12, 2010. They alleged that
the COMELEC issued Resolution No. 8790, relevant to this case, which
provides
RESOLUTION NO. 8790

Constitution, Article X Local Government

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;

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.

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;

LGC, Title IV, Chapter I

WHEREAS, the Supreme Court in G.R. No. 180050 entitled "Rodolfo

Navarro, et al., vs. Executive Secretary Eduardo Ermita, as
representative of the President of the Philippines, et al." rendered a
Decision, dated 10 February 2010, declaring Republic Act No. 9355
unconstitutional for failure to comply with the criteria for the creation of a
province prescribed in Sec. 461 of the Local Government Code in relation
to Sec. 10, Art. X, of the 1987 Constitution;

Section 461. Requisites for Creation. (a) A province may be created if it

has an average annual income, as certified by the Department of
Finance, of not less than Twenty million pesos (P20,000,000.00) based
on 1991 constant prices and either of the following requisites:
(i) a continuous territory of at least two thousand (2,000) square
kilometers, as certified by the Lands Management Bureau; or
(ii) a population of not less than two hundred fifty thousand (250,000)
inhabitants as certified by the National Statistics Office:
Provided, That, the creation thereof shall not reduce the land area,
population, and income of the original unit or units at the time of said
creation to less than the minimum requirements prescribed herein.
(b) The territory need not be contiguous if it comprises two (2) or more
islands or is separated by a chartered city or cities which do not
contribute to the income of the province.
(c) The average annual income shall include the income accruing to the
general fund, exclusive of special funds, trust funds, transfers, and nonrecurring income. (Emphasis supplied.)
On February 10, 2010, the Court rendered its Decision9 granting the
petition.10 The Decision declared R.A. No. 9355 unconstitutional for
failure to comply with the requirements on population and land area in the
creation of a province under the LGC. Consequently, it declared the
proclamation of Dinagat and the election of its officials as null and void.
The Decision likewise declared as null and void the provision on Article
9(2) of the Rules and Regulations Implementing the LGC (LGC-IRR),
stating that, "[t]he land area requirement shall not apply where the
proposed province is composed of one (1) or more islands" for being
beyond the ambit of Article 461 of the LGC, inasmuch as such exemption
is not expressly provided in the law.11

WHEREAS, respondents intend to file Motion[s] for Reconsideration on

the above decision of the Supreme Court;
WHEREAS, the electoral data relative to the: (1) position for Member,
House of Representatives representing the lone congressional district of
Dinagat Islands, (2) names of the candidates for the aforementioned
position, (3) position for Governor, Dinagat Islands, (4) names of the
candidates for the said position, (5) position of the Vice Governor, (6) the
names of the candidates for the said position, (7) positions for the ten
(10) Sangguniang Panlalawigan Members and, [8] all the names of the
candidates for Sangguniang Panlalawigan Members, have already been
configured into the system and can no longer be revised within the
remaining period before the elections on May 10, 2010.
NOW, THEREFORE, with the current system configuration, and
depending on whether the Decision of the Supreme Court in Navarro vs.
Ermita is reconsidered or not, the Commission RESOLVED, as it hereby
RESOLVES, to declare that:
a. If the Decision is reversed, there will be no problem since the current
system configuration is in line with the reconsidered Decision, meaning
that the Province of Dinagat Islands and the Province of Surigao del
Norte remain as two (2) separate provinces;
b. If the Decision becomes final and executory before the election, the
Province of Dinagat Islands will revert to its previous status as part of the
First Legislative District, Surigao del Norte.

But because of the current system configuration, the ballots for the
Province of Dinagat Islands will, for the positions of Member, House of
Representatives, Governor, Vice Governor and Members, Sangguniang
Panlalawigan, bear only the names of the candidates for the said
positions.
Conversely, the ballots for the First Legislative District of Surigao del
Norte, will, for the position of Governor, Vice Governor, Member, House
of Representatives, First District of Surigao del Norte and Members,
Sangguniang Panlalawigan, show only candidates for the said position.
Likewise, the whole Province of Surigao del Norte, will, for the position of
Governor and Vice Governor, bear only the names of the candidates for
the said position[s].
Consequently, the voters of the Province of Dinagat Islands will not be
able to vote for the candidates of Members, Sangguniang Panlalawigan,
and Member, House [of] Representatives, First Legislative District,
Surigao del Norte, and candidates for Governor and Vice Governor for
Surigao del Norte. Meanwhile, voters of the First Legislative District of
Surigao del Norte, will not be able to vote for Members, Sangguniang
Panlalawigan and Member, House of Representatives, Dinagat Islands.
Also, the voters of the whole Province of Surigao del Norte, will not be
able to vote for the Governor and Vice Governor, Dinagat Islands. Given
this situation, the Commission will postpone the elections for Governor,
Vice Governor, Member, House of Representatives, First Legislative
District, Surigao del Norte, and Members, Sangguniang Panlalawigan,
First Legislative District, Surigao del Norte, because the election will
result in [a] failure to elect, since, in actuality, there are no candidates for
Governor, Vice Governor, Members, Sangguniang Panlalawigan, First
Legislative District, and Member, House of Representatives, First
Legislative District (with Dinagat Islands) of Surigao del Norte.
c. If the Decision becomes final and executory after the election, the
Province of Dinagat Islands will revert to its previous status as part of the
First Legislative District of Surigao del Norte. The result of the election will
have to be nullified for the same reasons given in Item "b" above. A
special election for Governor, Vice Governor, Member, House of
Representatives, First Legislative District of Surigao del Norte, and
Members, Sangguniang Panlalawigan, First District, Surigao del Norte
(with Dinagat Islands) will have to be conducted.
xxxx

In their motion for reconsideration of the May 12, 2010 Resolution,

movants-intervenors raised three (3) main arguments to challenge the
above Resolution, namely: (1) that the passage of R.A. No. 9355
operates as an act of Congress amending Section 461 of the LGC; (2)
that the exemption from territorial contiguity, when the intended province
consists of two or more islands, includes the exemption from the
application of the minimum land area requirement; and (3) that the
Operative Fact Doctrine is applicable in the instant case.
In the Resolution dated July 20, 2010,16 the Court denied the Motion for
Leave to Intervene and to File and to Admit Intervenors Motion for
Reconsideration of the Resolution dated May 12, 2010 on the ground that
the allowance or disallowance of a motion to intervene is addressed to
the sound discretion of the Court, and that the appropriate time to file the
said motion was before and not after the resolution of this case.
On September 7, 2010, movants-intervenors filed a Motion for
Reconsideration of the July 20, 2010 Resolution, citing several
rulings17 of the Court, allowing intervention as an exception to Section 2,
Rule 19 of the Rules of Court that it should be filed at any time before the
rendition of judgment. They alleged that, prior to the May 10, 2010
elections, their legal interest in this case was not yet existent. They
averred that prior to the May 10, 2010 elections, they were unaware of
the proceedings in this case. Even for the sake of argument that they had
notice of the pendency of the case, they pointed out that prior to the said
elections, Sol T. Matugas was a simple resident of Surigao del Norte,
Arturo Carlos A. Egay, Jr. was a member of the Sangguniang
Panlalawigan of the Second District of Surigao del Norte, and Mamerto
D. Galanida was the Municipal Mayor of Socorro, Surigao del Norte, and
that, pursuant to COMELEC Resolution No. 8790, it was only after they
were elected as Governor of Surigao del Norte, Vice Governor of Surigao
del Norte and Sangguniang Panlalawigan Member of the First District of
Surigao del Norte, respectively, that they became possessed with legal
interest in this controversy.
On October 5, 2010, the Court issued an order for Entry of Judgment,
stating that the decision in this case had become final and executory on
May 18, 2010. Hence, the above motion.
At the outset, it must be clarified that this Resolution delves solely on the
instant Urgent Motion to Recall Entry of Judgment of movantsintervenors, not on the second motions for reconsideration of the original
parties, and neither on Dinagats Urgent Omnibus Motion, which our

SO ORDERED.
They further alleged that, because they are the duly elected officials of
Surigao del Norte whose positions will be affected by the nullification of
the election results in the event that the May 12, 2010 Resolution is not
reversed, they have a legal interest in the instant case and would be
directly affected by the declaration of nullity of R.A. No. 9355. Simply put,
movants-intervenors election to their respective offices would necessarily
be annulled since Dinagat Islands will revert to its previous status as part
of the First Legislative District of Surigao del Norte and a special election
will have to be conducted for governor, vice governor, and House of
Representatives member and Sangguniang Panlalawigan member for the
First Legislative District of Surigao del Norte. Moreover, as residents of
Surigao del Norte and as public servants representing the interests of
their constituents, they have a clear and strong interest in the outcome of
this case inasmuch as the reversion of Dinagat as part of the First
Legislative District of Surigao del Norte will affect the latter province such
that: (1) the whole administrative set-up of the province will have to be
restructured; (2) the services of many employees will have to be
terminated; (3) contracts will have to be invalidated; and (4) projects and
other developments will have to be discontinued. In addition, they claim
that their rights cannot be adequately pursued and protected in any other
proceeding since their rights would be foreclosed if the May 12, 2010
Resolution would attain finality.

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

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.
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

decide cases, otherwise moot and academic, if: (1) there is a grave
violation of the Constitution; (2) there is an exceptional character of the
situation and the paramount public interest is involved; (3) the
constitutional issue raised requires formation of controlling principles to
guide the bench, the bar, and the public; and (4) the case is capable of
repetition yet evading review.20 The second exception attends this case.
This Court had taken a liberal attitude in the case of David v. MacapagalArroyo,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 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.

It must be borne in mind that the central policy considerations in the

creation of local government units are economic viability, efficient
administration, and capability to deliver basic services to their
constituents. The criteria prescribed by the LGC, i.e., income, population
and land area, are all designed to accomplish these results. In this light,
Congress, in its collective wisdom, has debated on the relative weight of
each of these three criteria, placing emphasis on which of them should
enjoy preferential consideration.

The "moot and academic" principle is not a magical formula that can
automatically dissuade the courts from resolving a case. Courts will

xxxx

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?

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 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

Also worthy of note are the requisites in the creation of a barangay, a

municipality, a city, and a province as provided both in the LGC and the
LGC-IRR, viz.
For a Barangay:
LGC: SEC. 386. Requisites for Creation. (a) A barangay may be
created out of a contiguous territory which has a population of at least
two thousand (2,000) inhabitants as certified by the National Statistics
Office except in cities and municipalities within Metro Manila and other
metropolitan political subdivisions or in highly urbanized cities where such
territory shall have a certified population of at least five thousand (5,000)
inhabitants: Provided, That the creation thereof shall not reduce the
population of the original barangay or barangays to less than the
minimum requirement prescribed herein.
To enhance the delivery of basic services in the indigenous cultural
communities, barangays may be created in such communities by an Act
of Congress, notwithstanding the above requirement.
(b) The territorial jurisdiction of the new barangay shall be properly
identified by metes and bounds or by more or less permanent natural
boundaries. The territory need not be contiguous if it comprises two (2) or
more islands.

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.

(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.

CHAIRMAN PIMENTEL. Right.

HON. LAGUDA. Actually, when you come down to it, when government
was instituted, there is only one central government and then everybody
falls under that. But it was later on subdivided into provinces for purposes
of administrative efficiency.
CHAIRMAN PIMENTEL. Okay.
HON. LAGUDA. Now, what 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.

(b) New barangays in the municipalities within MMA shall be created only
by Act of Congress, subject to the limitations and requirements
prescribed in this Article.
(c) Notwithstanding the population requirement, a barangay may be
created in the indigenous cultural communities by Act of Congress upon
recommendation of the LGU or LGUs where the cultural community is
located.
(d) A barangay shall not be created unless the following requisites are
present:
(1) Population which shall not be less than two thousand (2,000)
inhabitants, except in municipalities and cities within MMA and other
metropolitan political subdivisions as may be created by law, or in highlyurbanized 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:

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

LGC: SEC. 442. Requisites for Creation. (a) A municipality may be

created if it has an average annual income, as certified by the provincial
treasurer, or at least Two million five hundred thousand pesos

(P2,500,000.00) for the last two (2) consecutive years based on the 1991
constant prices; a population of at least twenty-five thousand (25,000)
inhabitants as certified by the National Statistics Office; and a contiguous
territory of at least fifty (50) square kilometers as certified by the Lands
Management Bureau: Provided, That the creation thereof shall not
reduce the land area, population or income of the original municipality or
municipalities at the time of said creation to less than the minimum
requirements prescribed herein.
(b) The territorial jurisdiction of a newly-created municipality shall be
properly identified by metes and bounds. The requirement on land area
shall not apply where the municipality proposed to be created is
composed of one (1) or more islands. The territory need not be
contiguous if it comprises two (2) or more islands.
(c) The average annual income shall include the income accruing to the
general fund of the municipality concerned, exclusive of special funds,
transfers and non-recurring income.
(d) Municipalities existing as of the date of effectivity of this Code shall
continue to exist and operate as such. Existing municipal districts
organized pursuant to presidential issuances or executive orders and
which have their respective set of elective municipal officials holding
office at the time of the effectivity of this Code shall henceforth be
considered regular municipalities.
LGC-IRR: ARTICLE 13. Municipalities. (a) Requisites for Creation A
municipality shall not be created unless the following requisites are
present:
(i) Income An average annual income of not less than Two Million Five
Hundred Thousand Pesos (P2,500,000.00), for the immediately
preceding two (2) consecutive years based on 1991 constant prices, as
certified by the provincial treasurer. The average annual income shall
include the income accruing to the general fund, exclusive of special
funds, special accounts, transfers, and nonrecurring income;
(ii) Population which shall not be less than twenty five thousand
(25,000) inhabitants, as certified by NSO; and

income of the original unit or units at the time of said creation to less than
the minimum requirements prescribed herein.
(b) The territorial jurisdiction of a newly-created city shall be properly
identified by metes and bounds. The requirement on land area shall not
apply where the city proposed to be created is composed of one (1) or
more islands. The territory need not be contiguous if it comprises two (2)
or more islands.
(c) The average annual income shall include the income accruing to the
general fund, exclusive of special funds, transfers, and non-recurring
income.
LGC-IRR: ARTICLE 11. Cities. (a) Requisites for creation A city shall
not be created unless the following requisites on income and either
population or land area are present:
(1) Income An average annual income of not less than Twenty Million
Pesos (P20,000,000.00), for the immediately preceding two (2)
consecutive years based on 1991 constant prices, as certified by DOF.
The average annual income shall include the income accruing to the
general fund, exclusive of special funds, special accounts, transfers, and
nonrecurring income; and
(2) Population or land area Population which shall not be less than one
hundred fifty thousand (150,000) inhabitants, as certified by the NSO; or
land area which must be contiguous with an area of at least one hundred
(100) square kilometers, as certified by LMB. The territory need not be
contiguous if it comprises two (2) or more islands or is separated by a
chartered city or cities which do not contribute to the income of the
province. The land area requirement shall not apply where the proposed
city is composed of one (1) or more islands. The territorial jurisdiction of a
city sought to be created shall be properly identified by metes and
bounds.
The creation of a new city shall not reduce the land area, population, and
income of the original LGU or LGUs at the time of said creation to less
than the prescribed minimum requirements. All expenses incidental to the
creation shall be borne by the petitioners.
Provinces:

(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:

LGC: SEC. 461. Requisites for Creation. (a) A province may be created
if it has an average annual income, as certified by the Department of
Finance, of not less than Twenty million pesos (P20,000,000.00) based
on 1991 prices and either of the following requisites:
(i) a contiguous territory of at least two thousand (2,000) square
kilometers, as certified by the Lands Management Bureau; or,
(ii) a population of not less than two hundred fifty thousand (250,000)
inhabitants as certified by the National Statistics Office:
Provided, That the creation thereof shall not reduce the land area,
population, and income of the original unit or units at the time of said
creation to less than the minimum requirements prescribed herein.
(b) The territory need not be contiguous if it comprises two (2) or more
islands or is separated by a chartered city or cities which do not
contribute to the income of the province.

(i) a contiguous territory of at least one hundred (100) square kilometers,

as certified by the Lands Management Bureau; or,

(c) The average annual income shall include the income accruing to the
general fund, exclusive of special funds, trust funds, transfers, and nonrecurring income.

(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

LGC-IRR: ARTICLE 9. Provinces. (a) Requisites for creation A

province shall not be created unless the following requisites on income
and either population or land area are present:

(1) Income An average annual income of not less than Twenty Million
pesos (P20,000,000.00) for the immediately preceding two (2)
consecutive years based on 1991 constant prices, as certified by DOF.
The average annual income shall include the income accruing to the
general fund, exclusive of special funds, special accounts, transfers, and
non-recurring income; and
(2) Population or land area Population which shall not be less than two
hundred fifty thousand (250,000) inhabitants, as certified by NSO; or land
area which must be contiguous with an area of at least two thousand
(2,000) square kilometers, as certified by LMB. The territory need not be
contiguous if it comprises two (2) or more islands or is separated by a
chartered city or cities which do not contribute to the income of the
province. The land area requirement shall not apply where the proposed
province is composed of one (1) or more islands. The territorial
jurisdiction of a province sought to be created shall be properly identified
by metes and bounds.
The creation of a new province shall not reduce the land area, population,
and income of the original LGU or LGUs at the time of said creation to
less than the prescribed minimum requirements. All expenses incidental
to the creation shall be borne by the petitioners. (Emphasis supplied.)
It bears scrupulous notice that from the above cited provisions, with
respect to the creation of barangays, land area is not a requisite indicator
of viability. However, with respect to the creation of municipalities,
component cities, and provinces, the three (3) indicators of viability and
projected capacity to provide services, i.e., income, population, and land
area, are provided for.
But it must be pointed out that when the local government unit to be
created consists of one (1) or more islands, it is exempt from the land
area requirement as expressly provided in Section 442 and Section 450
of the LGC if the local government unit to be created is a municipality or a
component city, respectively. This exemption is absent in the
enumeration of the requisites for the creation of a province under Section
461 of the LGC, although it is expressly stated under Article 9(2) of the
LGC-IRR.
There appears neither rhyme nor reason why this exemption should
apply to cities and municipalities, but not to provinces. In fact, considering
the physical configuration of the Philippine archipelago, there is a greater
likelihood that islands or group of islands would form part of the land area
of a newly-created province than in most cities or municipalities. It is,
therefore, logical to infer that the genuine legislative policy decision was
expressed in Section 442 (for municipalities) and Section 450 (for
component cities) of the LGC, but was inadvertently omitted in Section
461 (for provinces). Thus, when the exemption was expressly provided in
Article 9(2) of the LGC-IRR, the inclusion was intended to correct the
congressional oversight in Section 461 of the LGC and to reflect the
true legislative intent. It would, then, be in order for the Court to uphold
the validity of Article 9(2) of the LGC-IRR.
This interpretation finds merit when we consider the basic policy
considerations underpinning the principle of local autonomy.
Section 2 of the LGC, of which paragraph (a) is pertinent to this case,
provides
Sec. 2. Declaration of Policy. (a) It is hereby declared the policy of the
State that the territorial and political subdivisions of the State shall enjoy
genuine and meaningful local autonomy to enable them to attain their
fullest development as self-reliant communities and make them more
effective partners in the attainment of national goals. Toward this end, the
State shall provide for a more responsive and accountable local
government structure instituted through a system of decentralization
whereby local government units shall be given more powers, authority,

responsibilities, and resources. The process of decentralization shall

proceed from the national government to the local government units.
This declaration of policy is echoed in Article 3(a) of the LGC-IRR26 and
in the Whereas clauses of Administrative Order No. 270,27 which read
WHEREAS, Section 25, Article II of the Constitution mandates that the
State shall ensure the autonomy of local governments;
WHEREAS, pursuant to this declared policy, Republic Act No. 7160,
otherwise known as the Local Government Code of 1991, affirms, among
others, that the territorial and political subdivisions of the State shall enjoy
genuine and meaningful local autonomy to enable them to attain their
fullest development as self-reliant communities and make them more
effective partners in the attainment of national goals;
WHEREAS, Section 533 of the Local Government Code of 1991 requires
the President to convene an Oversight Committee for the purpose of
formulating and issuing the appropriate rules and regulations necessary
for the efficient and effective implementation of all the provisions of the
said Code; and
WHEREAS, the Oversight Committee, after due deliberations and
consultations with all the concerned sectors of society and consideration
of the operative principles of local autonomy as provided in the Local
Government Code of 1991, has completed the formulation of the
implementing rules and regulations; x x x
Consistent with the declared policy to provide local government units
genuine and meaningful local autonomy, contiguity and minimum land
area requirements for prospective local government units should be
liberally construed in order to achieve the desired results. The strict
interpretation adopted by the February 10, 2010 Decision could prove to
be counter-productive, if not outright absurd, awkward, and impractical.
Picture an intended province that consists of several municipalities and
component cities which, in themselves, also consist of islands. The
component cities and municipalities which consist of islands are exempt
from the minimum land area requirement, pursuant to Sections 450 and
442, respectively, of the LGC. Yet, the province would be made to comply
with the minimum land area criterion of 2,000 square kilometers, even if it
consists of several islands. This would mean that Congress has opted to
assign a distinctive preference to create a province with contiguous land
area over one composed of islands and negate the greater imperative
of development of self-reliant communities, rural progress, and the
delivery of basic services to the constituency. This preferential option
would prove more difficult and burdensome if the 2,000-square-kilometer
territory of a province is scattered because the islands are separated by
bodies of water, as compared to one with a contiguous land mass.
Moreover, such a very restrictive construction could trench on the equal
protection clause, as it actually defeats the purpose of local autonomy
and decentralization as enshrined in the Constitution. Hence, the land
area requirement should be read together with territorial contiguity.
Another look at the transcript of the deliberations of Congress should
prove enlightening:
CHAIRMAN ALFELOR. Can we give time to Congressman
Chiongbian,28 with respect to his
CHAIRMAN LINA. Okay.
HON. CHIONGBIAN. At the outset, Chairman Lina, we would like to
apprise the distinguished Senator about the action taken by the House,
on House Bill No. 7166. This was passed about two years ago and has
been pending in the Senate for consideration. This is a bill that I am not
the only one involved, including our distinguished Chairman here. But

then we did want to sponsor the bill, being the Chairman then of the Local
Government.
So, I took the cudgels for the rest of the Congressmen, who were more or
less interested in the creation of the new provinces, because of the
vastness of the areas that were involved.
At any rate, this bill was passed by the House unanimously without any
objection. And as I have said a while ago, that this has been pending in
the Senate for the last two years. And Sen. Pimentel himself was just in
South Cotabato and he delivered a speech that he will support this bill,
and he says, that he will incorporate this in the Local Government Code,
which I have in writing from him. I showed you the letter that he wrote,
and naturally, we in the House got hold of the Senate version. It becomes
an impossibility for the whole Philippines to create a new province, and
that is quite the concern of the respective Congressmen.
Now, insofar as the constitutional provision is concerned, there is nothing
to stop the mother province from voting against the bill, if a province is
going to be created.
So, we are talking about devolution of powers here. Why is the province
not willing to create another province, when it can be justified. Even
Speaker Mitra says, what will happen to Palawan? We 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.
On November 2, 1989, the Senator wrote me:
"Dear Congressman Chiongbian:
We are in receipt of your letter of 17 October. Please be informed that
your House No. 7166 was incorporated in the proposed Local
Government Code, Senate Bill No. 155, which is pending for second
reading.
Thank you and warm regards.
Very truly yours,"
That is the very context of the letter of the Senator, and we are quite
surprised that the Senate has adopted another position.
So, we would like because this is a unanimously approved bill in the
House, 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 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.
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.
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.
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?

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 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

CHAIRMAN ALFELOR. Batanes is only six.

CHAIRMAN LINA. Six town. Siquijor?
CHAIRMAN ALFELOR. Siquijor. It is region?
CHAIRMAN LINA. Seven.

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.

CHAIRMAN ALFELOR.L Seven. Anim.

CHAIRMAN LINA. Six also.
CHAIRMAN ALFELOR. Six also.
CHAIRMAN LINA. It seems with a minimum number of towns?
CHAIRMAN ALFELOR. The population of Siquijor is only 70 thousand,
not even one congressional district. But tumaas in 1982. Camiguin, that is
Region 9. Wala dito. Nagtataka nga ako ngayon.
CHAIRMAN LINA. Camiguin, Camiguin.
CHAIRMAN ALFELOR. That is region? Camiguin has five municipalities,
with a population of 63 thousand. But we do not hold it against the
province because maybe thats one stimulant where growth can grow,

It is well to remember that the LGC-IRR was formulated by the Oversight

Committee consisting of members of both the Executive and Legislative
departments, pursuant to Section 53332 of the LGC. As Section 533
provides, the Oversight Committee shall formulate and issue the
appropriate rules and regulations necessary for the efficient and effective
implementation of any and all provisions of this Code, thereby ensuring
compliance with the principles of local autonomy as defined under the
Constitution. It was also mandated by the Constitution that a local
government code shall be enacted by Congress, to wit
Section 3. The Congress shall enact a local government code which shall
provide for a more responsive and accountable local government
structure instituted through a system of decentralization with effective
mechanisms of recall, initiative, and referendum, allocate among the
different local government units their powers, responsibilities, and

resources, and provide for the qualifications, election, appointment and

removal, term, salaries, powers and functions and duties of local officials,
and all other matters relating to the organization and operation of the
local units. (Emphasis supplied.)

be seen from the perspective that Dinagat is ready and capable of

becoming a province. This Court should not be instrumental in stunting
such capacity. As we have held in League of Cities of the Philippines v.
Commission on Elections35

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.

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.

With three (3) members each from both the Senate and the House of
Representatives, particularly the chairpersons of their respective
Committees on Local Government, it cannot be gainsaid that the
inclusion by the Oversight Committee of the exemption from the land
area requirement with respect to the creation of provinces consisting of
one (1) or more islands was intended by Congress, but unfortunately not
expressly stated in Section 461 of the LGC, and this intent was echoed
through an express provision in the LGC-IRR. To be sure, the Oversight
Committee did not just arbitrarily and whimsically insert such an
exemption in Article 9(2) of the LGC-IRR. The Oversight Committee
evidently conducted due deliberation and consultations with all the
concerned sectors of society and considered the operative principles of
local autonomy as provided in the LGC when the IRR was
formulated.33 Undoubtedly, this amounts not only to an executive
construction, entitled to great weight and respect from this Court,34 but to
legislative construction as well, especially with the inclusion of
representatives from the four leagues of local government units as
members of the Oversight Committee.
With the formulation of the LGC-IRR, which amounted to both executive
and legislative construction of the LGC, the many details to implement
the LGC had already been put in place, which Congress understood to be
impractical and not too urgent to immediately translate into direct
amendments to the LGC. But Congress, recognizing the capacity and
viability of Dinagat to become a full-fledged province, enacted R.A. No.
9355, following the exemption from the land area requirement, which,
with respect to the creation of provinces, can only be found as an express
provision in the LGC-IRR. In effect, pursuant to its plenary legislative
powers, Congress breathed flesh and blood into that exemption in Article
9(2) of the LGC-IRR and transformed it into law when it enacted R.A. No.
9355 creating the Island Province of Dinagat.
Further, the bill that eventually became R.A. No. 9355 was filed and
favorably voted upon in both Chambers of Congress. Such acts of both
Chambers of Congress definitively show the clear legislative intent to
incorporate into the LGC that exemption from the land area requirement,
with respect to the creation of a province when it consists of one or more
islands, as expressly provided only in the LGC-IRR. Thereby, and by
necessity, the LGC was amended by way of the enactment of R.A. No.
9355.

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:
1. GRANT the Urgent Motion to Recall Entry of Judgment by movantsintervenors, 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.

What is more, the land area, while considered as an indicator of viability

of a local government unit, is not conclusive in showing that Dinagat
cannot become a province, taking into account its average annual income
ofP82,696,433.23 at the time of its creation, as certified by the Bureau of
Local Government Finance, which is four times more than the minimum
requirement of P20,000,000.00 for the creation of a province. The
delivery of basic services to its constituents has been proven possible
and sustainable. Rather than looking at the results of the plebiscite and
the May 10, 2010 elections as mere fait accompli circumstances which
cannot operate in favor of Dinagats existence as a province, they must

UNABLE TO FIND: G.R. NO. 180050, SEPTEMBER

11, 2012

Republic of the Philippines

SUPREME COURT
Manila

provincial positions of the Province of Isabela, and any such qualified

voter can be a candidate for such provincial positions and any elective
provincial office.

EN BANC

Sec. 3. Repealing Clause. All existing laws or parts thereof

inconsistent with the provisions of this Act are hereby repealed or
modified accordingly.

G.R. No. 133064 September 16, 1999

Sec. 4. Effectivity. This Act shall take effect upon its approval.

JOSE C. MIRANDA, ALFREDO S. DIRIGE, MANUEL H. AFIADO,

MARIANO V. BABARAN and ANDRES R. CABUYADAO, petitioners,
vs.
HON. ALEXANDER AGUIRRE, In his capacity as Executive
Secretary; HON. EPIMACO VELASCO, in his capacity as Secretary of
Local Government, HON. SALVADOR ENRIQUEZ, in his capacity as
Secretary of Budget, THE COMMISSION ON AUDIT, THE
COMMISSION ON ELECTIONS, HON. BENJAMIN G. DY, in his
capacity as Governor of Isabela, THE HONORABLE SANGGUNIANG
PANLALAWIGAN OF ISABELA, ATTY. BALTAZAR PICIO, in his
capacity as Provincial Administrator, and MR. ANTONIO CHUA, in
his capacity as Provincial Treasurer, respondents, GIORGIDI B.
AGGABAO, intervenor.

Approved.

PUNO, J.:
This is a petition for a writ of prohibition with prayer for preliminary
injunction assailing the constitutionality of Republic Act No. 8528
converting the city of Santiago, Isabela from an independent component
city to a component city.
On May 5, 1994, Republic Act No. 7720 which converted the municipality
of Santiago, Isabela into an independent component city was signed into
law. On July 4, 1994, the people of Santiago ratified R.A. No. 7720 in a
plebiscite.1

Petitioners assail the constitutionality of R.A. No. 8528. 2 They alleged as

ground the lack of provision in R.A. No. 8528 submitting the law for
ratification by the people of Santiago City in a proper plebiscite. Petitioner
Miranda was the mayor of Santiago at the time of the filing of the petition
at bar. Petitioner Afiado is the President of the Liga ng mga Barangay ng
Santiago City. Petitioners Dirige, Cabuyadao and Babaran are residents
of Santiago City.
In their Comment, respondent provincial officials of Isabela defended the
constitutionality of R.A. No. 8528. They assailed the standing of
petitioners to file the petition at bar. They also contend that the petition
raises a political question over which this Court lacks jurisdiction.
Another Comment was filed by the Solicitor General for the respondent
public officials. The Solicitor General also contends that petitioners are
not real parties in interest. More importantly, it is contended that R.A. No.
8528 merely reclassified Santiago City from an independent component
city to a component city. It allegedly did not involve any "creation,
division, merger, abolition, or substantial alteration of boundaries of local
government units," hence, a plebiscite of the people of Santiago is
unnecessary.

On February 14, 1998, Republic Act No. 8528 was enacted. It amended
R.A. No. 7720. Among others, it changed the status of Santiago from an
independent component city to a component city, viz.:

A third Comment similar in tone was submitted by intervenor Giorgidi B.

Aggabao, 3 a member of the provincial board of Isabela. 4 He contended
that both the Constitution and the Local Government Code of 1991 do not
require a plebiscite "to approve a law that merely allowed qualified voters
of a city to vote in provincial elections. The rules implementing the Local
Government Code cannot require a plebiscite. He also urged that
petitioners lacked locus standi.

AN ACT AMENDING CERTAIN SECTIONS OF REPUBLIC ACT

NUMBERED 7720 AN ACT CONVERTING THE MUNICIPALITY OF
SANTIAGO INTO AN INDEPENDENT COMPONENT CITY TO BE
KNOWN AS THE CITY OF SANTIAGO.

Petitioners filed a Reply to meet the arguments of the respondents and

the intervenor. They defended their standing. They also stressed the
changes that would visit the city of Santiago as a result of its
reclassification.

Be it enacted by the Senate and House of Representatives of the

Philippines in Congress assembled:

We find merit in the petition.

Sec. 1. Section 2 of Republic Act No. 7720 is hereby amended by

deleting the words "an independent" thereon so that said Section will read
as follows:
Sec. 2. The City of Santiago. The Municipality of Santiago shall be
converted into a component city to be known as the City of Santiago,
hereinafter referred to as the City, which shall comprise of the present
territory of the Municipality of Santiago, Isabela. The territorial jurisdiction
of the City shall be within the present metes and bounds of the
Municipality of Santiago.
Sec. 2. Section 51 of Republic Act No. 7720 is hereby amended deleting
the entire section and in its stead substitute the following:
Sec. 51. Election of Provincial Governor, Vice-Governor, Sangguniang
Panlalawigan Members, and any Elective Provincial Position for the
Province of Isabela. The voters of the City of Santiago shall be
qualified to vote in the elections of the Provincial Governor, ViceGovernor, Sangguniang Panlalawigan members and other elective

First. The challenge to the locus standi of petitioners cannot succeed. It is

now an ancient rule that the constitutionality of law can be challenged by
one who will sustain a direct injury as a result of its
enforcement. 5Petitioner Miranda was the mayor of Santiago City when
he filed the present petition in his own right as mayor and not on behalf of
the city, hence, he did not need the consent of the city council of
Santiago. It is also indubitable that the change of status of the city of
Santiago from independent component city to a mere component city will
affect his powers as mayor, as will be shown hereafter. The injury that he
would sustain from the enforcement of R.A. No. 8528 is direct and
immediate and not a mere generalized grievance shared with the people
of Santiago City. Similarly, the standing of the other petitioners rests on a
firm foundation. They are residents and voters in the city of Santiago.
They have the right to be heard in the conversion of their city thru a
plebiscite to be conducted by the COMELEC. The denial of this right in
R.A. No. 8528 gives them proper standing to strike the law as
unconstitutional.1wphi1.nt

Second. The plea that this court back off from assuming jurisdiction over
the petition at bar on the ground that it involves a political question has to
be brushed aside. This plea has long lost its appeal especially in light of
Section 1 of Article VIII of the 1987 Constitution which defines judicial
power as including "the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part
of any branch or instrumentality of the government." To be sure, the cut
between a political and justiciable issue has been made by this Court in
many cases and need no longer mystify us. In Taada v. Cuenco, 6 we
held:
xxx xxx xxx
The term "political question" connotes what it means in ordinary parlance,
namely, a question of policy. It refers "to those questions which under the
Constitution are to be decided by the people in their sovereign capacity;
or in regard to which full discretionary authority has been delegated to the
legislative or executive branch of the government." It is concerned with
issues dependent upon the wisdom, not legality, of a particular measure.
In Casibang v. Aquino, 7 we defined a justiciable issue as follows:
A purely justiciable issue implies a given right, legally demandable and
enforceable, an act or omission violative of such right, and a remedy
granted and sanctioned by law, for said breach of right.
Clearly, the petition at bar presents a justiciable issue. Petitioners claim
that under Section 10, Article X of the 1987 Constitution they have a right
to approve or disapprove R.A. No. 8528 in a plebiscite before it can be
enforced. It ought to be self-evident that whether or not petitioners have
the said right is a legal not a political question. For whether or not laws
passed by Congress comply with the requirements of the Constitution
pose questions that this Court alone can decide. The proposition that this
Court is the ultimate arbiter of the meaning and nuances of the
Constitution need not be the subject of a prolix explanation.
Third. The threshold issue is whether R.A. No. 8528 is unconstitutional
for its failure to provide that the conversion of the city of Santiago from an
independent component city to a component city should be submitted to
its people in a proper plebiscite. We hold that the Constitution requires a
plebiscite. Section 10, Article X of the 1987 Constitution provides:
No province, city, municipality, or barangay may be created, or divided,
merged, abolished, or its boundary substantially altered except in
accordance with the criteria established in the local government code and
subject to approval by a majority of the votes cast in a plebiscite in the
political units directly affected.
This constitutional requirement is reiterrated in Section 10, Chapter 2 of
the Local Government Code (R.A. No. 7160), thus:
Sec. 10. No province, city, municipality, or barangay may be created,
divided, merged, abolished, or its boundary substantially altered except in
accordance with the criteria established in the local government code and
subject to approval by a majority of the votes cast in a plebiscite in the
political units directly affected.
The power to create, divide, merge, abolish or substantially alter
boundaries of local government units belongs to Congress. 8 This power
is part of the larger power to enact laws which the Constitution vested in
Congress. 9 The exercise of the power must be in accord with the
mandate of the Constitution. In the case at bar, the issue is whether the
downgrading of Santiago City from an independent component city to a
mere component city requires the approval of the people of Santiago City
in a plebiscite. The resolution of the issue depends on whether or not the
downgrading falls within the meaning of creation, division, merger,

abolition or substantial alteration of boundaries of municipalities per

Section 10, Article X of the Constitution. A close analysis of the said
constitutional provision will reveal that the creation, division, merger,
abolition or substantial alteration of boundaries of local government units
involve a common denominator material change in the political and
economic rights of the local government units directly affected as well as
the people therein. It is precisely for this reason that the Constitution
requires the approval of the people "in the political units directly affected."
It is not difficult to appreciate the rationale of this constitutional
requirement. The 1987 Constitution, more than any of our previous
Constitutions, gave more reality to the sovereignty of our people for it was
borne out of the people power in the 1986 EDSA revolution. Its Section
10, Article X addressed the undesirable practice in the past whereby local
government units were created, abolished, merged or divided on the
basis of the vagaries of politics and not of the welfare of the people.
Thus, the consent of the people of the local government unit directly
affected was required to serve as a checking mechanism to any exercise
of legislative power creating, dividing, abolishing, merging or altering the
boundaries of local government units. It is one instance where the people
in their sovereign capacity decide on a matter that affects them direct
democracy of the people as opposed to democracy thru people's
representatives. This plebiscite requirement is also in accord with the
philosophy of the Constitution granting more autonomy to local
government units.
The changes that will result from the downgrading of the city of Santiago
from an independent component city to a component city are many and
cannot be characterized as insubstantial. For one, the independence of
the city as a political unit will be diminished. The city mayor will be placed
under the administrative supervision of the provincial governor. The
resolutions and ordinances of the city council of Santiago will have to be
reviewed by the Provincial Board of Isabela. Taxes that will be collected
by the city will now have to be shared with the province. Petitioners
pointed out these far reaching changes on the life of the people of the city
of Santiago, viz.: 10
Although RESPONDENTS would like to make it appear that R.A. No.
8528 had "merely re-classified" Santiago City from an independent
component city into a component city, the effect when challenged (sic)
the Act were operational would be, actually, that of conversion.
Consequently, there would besubstantial changes in the political culture
and administrative responsibilities of Santiago City, and the Province of
Isabela. Santiago City from an independent component city will revert to
the Province of Isabela, geographically, politically, and administratively.
Thus, the territorial land area of Santiago City will be added to the land
area comprising the province of Isabela. This will be to the benefit or
advantage of the Provincial Government of Isabela on account of the
subsequent increase of its share from the internal revenue allotment
(IRA) from the National Government (Section 285, R.A. No. 7160 or the
Local Government Code of 1991). The IRA is based on land area and
population of local government units, provinces included.
The nature or kinds, and magnitude of the taxes collected by the City
Government, and which taxes shall accrue solely to the City Government,
will be redefined (Section 151, R.A. No. 7160), and may be shared with
the province such as taxes on sand, gravel and other quarry resources
(Section 138, R.A. No. 7160), professional taxes (Section 139, R.A. No.
7160), or amusement taxes (Section 140, R.A. No. 7160). The Provincial
Government will allocate operating funds for the City. Inarguably, there
would be a (sic) diminished funds for the local operations of the City
Government because of reduced shares of the IRA in accordance with
the schedule set forth by Section 285 of R.A. No. 7160. The City
Government's share in the proceeds in the development and utilization of
national wealth shall be diluted since certain portions shall accrue to the
Provincial Government (Section 292, R.A. No. 7160).
The registered voters of Santiago City will vote for and can be voted as
provincial officials (Section 451 and 452 [c], R.A. No. 7160).

The City Mayor will now be under the administrative supervision of the
Provincial Governor who is tasked by law to ensure that every component
city and municipality within the territorial jurisdiction of the province acts
within the scope of its prescribed powers and functions (Section 29 and
465 (b) (2) (i), R.A. No. 7160), and to review (Section 30, R.A. No. 7160)
all executive orders submitted by the former (Section 455 (b) (1) (xii),
R.A. No. 7160) and (R)eportorial requirements with respect to the local
governance and state of affairs of the city (Section 455 (b) (1) (xx), R.A.
No. 7160). Elective city officials will also be effectively under the control
of the Provincial Governor (Section 63, R.A. No. 7160). Such will be the
great change in the state of the political autonomy of what is now
Santiago City where by virtue of R.A. No. 7720, it is the Office of the
President which has supervisory authority over it as an independent
component city (Section 25, R.A. No. 7160; Section 4 (ARTICLE X), 1987
Constitution).
The resolutions and ordinances adopted and approved by the
Sangguniang Panlungsod will be subject to the review of the
Sangguniang Panlalawigan (Sections 56, 468, (a) (1) (i), 468 (a) (2) (vii),
and 469 (c) (4), R.A. No. 7160). Likewise, the decisions in administrative
cases by the former could be appealed and acted upon by the latter
(Section 67 R.A. No. 7160).
It is markworthy that when R.A. No. 7720 upgraded the status of
Santiago City from a municipality to an independent component city, it
required the approval of its people thru a plebiscite called for the purpose.
There is neither rhyme nor reason why this plebiscite should not be called
to determine the will of the people of Santiago City when R.A. No.
8528 downgrades the status of their city. Indeed, there is more reason to
consult the people when a law substantially diminishes their right. Rule II,
Article 6, paragraph (f) (1) of the Implementing Rules and Regulations of
the Local Government Code is in accord with the Constitution when it
provides that:
(f) Plebiscite (1) no creation, conversion, division, merger, abolition, or
substantial alteration of boundaries of LGUS shall take effect unless
approved by a majority of the votes cast in a plebiscite called for the
purpose in the LGU or LGUs affected. The plebiscite shall be conducted
by the Commission on Elections (COMELEC) within one hundred twenty
(120) days from the effectivity of the law or ordinance prescribing such
action, unless said law or ordinance fixes another date.
xxx xxx xxx
The rules cover all conversions, whether upward or downward in
character, so long as they result in a material change in the local
government unit directly affected, especially a change in the political and
economic rights of its people.
A word on the dissenting opinions of our esteemed brethren. Mr. Justice
Buena justifies R.A. No. 8528 on the ground that Congress has the power
to amend the charter of Santiago City. This power of amendment,
however, is limited by Section 10, Article X of the Constitution. Quite
clearly, when an amendment of a law involves the creation, merger,
division, abolition or substantial alteration of boundaries of local
government units, a plebiscite in the political units directly affected is
mandatory. He also contends that the amendment merely caused
a transitionin the status of Santiago as a city. Allegedly, it is a transition
because no new city was created nor was a former city dissolved by R.A.
No. 8528. As discussed above, the spirit of Section 10, Article X of the
Constitution calls for the people of the local government unit directly
affected to vote in a plebiscite whenever there is a material change in
their rights and responsibilities. They may call the downgrading of
Santiago to a component city as a mere transition but they cannot blink
away from the fact that the transition will radically change its physical and
political configuration as well as the rights and responsibilities of its
people.

On the other hand, our esteemed colleague, Mr. Justice Mendoza, posits
the theory that "only if the classification involves changes in income,
population, and land area of the local government unit is there a need for
such changes to be approved by the people . . . ."
With due respect, such an interpretation runs against the letter and spirit
of Section 10, Article X of the 1987 Constitution which, to repeat, states:
"No province, city, municipality, or barangay may be created, divided,
merged, abolished, or its boundary substantially altered except in
accordance with the criteria established in the Local Government
Code and subject to approval by a majority of the votes cast in a
plebiscite in the political units directly affected." It is clear that the
Constitution imposes two conditions first, the creation, division,
merger, abolition or substantial alteration of boundary of a local
government unit must meet the criteria fixed by the Local Government
Code on income, population and land area and second, the law must be
approved by the people "by a majority of the votes cast in a plebiscite in
the political units directly affected."
In accord with the Constitution, sections 7, 8, and 9 of the Local
Government Code fixed the said criteria and they involve requirements
on income, population and land area. These requirements, however, are
imposed to help assure the economic viability of the local government
unit concerned. They were not imposed to determine the necessity for a
plebiscite of the people. Indeed, the Local Government Code does not
state that there will be no more plebiscite after its requirements on
income, population and land area have been satisfied. On the contrary,
section 10, Chapter 2 of the Code provides: "No creation, division,
merger, abolition, or substantial alteration of boundaries of local
government units shall take effect unless approved by a majority of the
votes casts in a plebiscite called for the purpose in the political unit or
units directly affected. Said plebiscite shall be conducted by the
COMELEC within one hundred twenty (120) days from the date of the
effectivity of the law or ordinance effecting such action, unless said law or
ordinance fixes another
date. 11 Senator Aquilino Pimentel, the principal author of the Local
Government Code of 1991, opines that the plebiscite is absolute and
mandatory. 12
It cannot be overstressed that the said two requirements of the
Constitution have different purposes. The criteria fixed by the Local
Government Code on income, population and land area are designed to
achieve an economic purpose. They are to be based on verified
indicators, hence, section 7, Chapter 2 of the Local Government Code
requires that these "indicators shall be attested by the Department of
Finance, the National Statistics Office, and the Lands Management
Bureau of the Department of Environment and Natural Resources." In
contrast, the people's plebiscite is required to achieve a political
purpose to use the people's voice as a check against the pernicious
political practice of gerrymandering. There is no better check against this
excess committed by the political representatives of the people
themselves than the exercise of direct people power. As well-observed by
one commentator, as the creation, division, merger, abolition, or
substantial alteration of boundaries are ". . . basic to local government, it
is also imperative that these acts be done not only by Congress but also
be approved by the inhabitants of the locality concerned. . . . By giving
the inhabitants a hand in their approval, the provision will also eliminate
the old practice of gerrymandering and minimize legislative action
designed for the benefit of a few politicians. Hence, it promotes the
autonomy of local government units." 13
The records show that the downgrading of Santiago City was opposed by
certain segments of its people. In the debates in Congress, it was noted
that at the time R.A. No. 8528 was proposed, Santiago City has been
converted to an independent component city barely two and a half (2 1/2)
years ago and the conversion was approved by a majority of 14,000
votes. Some legislators expressed surprise for the sudden move to
downgrade the status of Santiago City as there had been no significant

change in its socio-economic-political status. The only reason given for

the downgrading is to enable the people of the city to aspire for the
leadership of the province. To say the least, the alleged reason is
unconvincing for it is the essence of an independent component city that
its people can no longer participate or be voted for in the election of
officials of the province. The people of Santiago City were aware
that they gave up that privilege when they voted to be independent from
the province of Isabela. There was an attempt on the part of the
Committee on Local Government to submit the downgrading of Santiago
City to its people via a plebiscite. The amendment to this effect was about
to be voted upon when a recess was called. After the recess, the
chairman of the Committee announced the withdrawal of the amendment
"after a very enlightening conversion with the elders of the Body." We
quote the debates, viz.: 14

Being geographically located within the Province of Isabela, the City of

Santiago is affected, one way or the other, by the happenings in the said
province, and is benefited by its progress and development. Hence, the
proposed bill to convert the City of Santiago into a component city of
Isabela.

BILL ON SECOND READING

Senator Tatad. Mr. President, I moved (sic) that we close the period of
interpellations.

Mr. President, it is my pleasure, therefore, to present for consideration of

this august Body Committee Report No. 971 of the Committee on Local
Government, recommending approval, with our proposed committee
amendment, of House Bill No. 8729.
Thank you, Mr. President.
The President. The Majority Leader is recognized.

H.B. No. 8729 City of Santiago

Senator Tatad. Mr. President, I move that we consider House Bill No.
8729 as reported out under Committee Report No. 971.

The President. Is there any objection? [Silence] There being none, the
period of interpellations is closed.
Senator Tatad. I move that we now consider the committee amendments.

The President. Is there any objection? [Silence] there being none, the
motion is approved.
Consideration of House Bill No. 8729 is now in order. With the permission
of the Body, the Secretary will read only the title of the bill without
prejudice to inserting in the Record the whole text thereof.
The Acting Secretary [Atty. Raval]. House Bill No. 8729, entitled:
AN ACT AMENDING CERTAIN SECTIONS OF R.A. NO. 7720
ENTITLED "AN ACT CONVERTING THE MUNICIPALITY OF
SANTIAGO INTO AN INDEPENDENT COMPONENT CITY TO BE
KNOWN AS THE CITY OF SANTIAGO

Senator Roco. Mr. President.

The President. What is the pleasure of Senator Roco?
Senator Roco. Mr. President, may I ask for a reconsideration of the ruling
on the motion to close the period of interpellations just to be able to ask a
few questions?
Senator Tatad. May I move for a reconsideration of my motion, Mr.
President.

The following is the full text of H.B. No. 8729

The President. Is there any objection to the reconsideration of the closing

of the period of interpellations? [Silence] There being none, the motion is
approved.

Insert

Senator Roco is recognized.

Senator Tatad. Mr. President, for the sponsorship, I ask that the
distinguished Chairman of the Committee on Local Government be
recognized.

Senator Roco. Will the distinguished gentlemen yield for some

questions?
Senator Sotto. Willingly, Mr. President.

The President. Senator Sotto is recognized.

SPONSORSHIP SPEECH OF SENATOR SOTTO
Mr. President. House Bill No. 8729, which was introduced in the House
by Congressman Antonio M. Abaya as its principal author, is a simple
measure which merely seeks to convert the City of Santiago into a
component city of the Province of Isabela.
The City of Santiago is geographically located within, and is physically an
integral part of the Province of Isabela. As an independent component
city, however, it is completely detached and separate from the said
province as a local political unit. To use the language of the Explanatory
Note of the proposed bill, the City of Santiago is an "island in the
provincial milieu.
The residents of the city no longer participate in the elections, nor are
they qualified to run for any elective positions in the Province of Isabela.
The Province of Isabela, on the other hand, is no longer vested with the
power and authority of general supervision over the city and its officials,
which power and authority are now exercised by the Office of the
President, which is very far away from Santiago City.

Senator Roco. Mr. President, together with the Chairman of the

Committee on Local Government, we were with the sponsors when we
approved this bill to make Santiago a City. That was about two and a half
years ago. At that time, I remember it was the cry of the city that it be
"independent." Now we are deleting that word "independent."
Mr. President, only because I was a co-author and a co-sponsor, for
the Record, I want some explanation on what happened between then
and now that has made us decided that the City of Santiago should
cease to be independent and should now become a component city.
Senator Sotto. Mr. President, the officials of the province said during the
public hearing that they are no longer vested with the power and authority
of general supervision over the city. The power and authority is now
being exercised by the Office of the President and it is quite far from the
City of Santiago.
In the public hearing, we also gathered that there is a clamor from some
sectors that they want to participate in the provincial elections.
Senator Roco. Mr. President, I did not mean to delay this. I did want it on
record, however. I think there was a majority of 14,000 who approved the
charter, and maybe we owe it to those who voted for that charter some

degree of respect. But if there has been a change of political will, there
has been a change of political will, then so be it.
Thank you, Mr. President.
Senator Sotto. Mr. President, to be very frank about it, that was a very
important point raised by Senator Roco, and I will have to place it on the
Record of the Senate that the reason why we are proposing a committee
amendment is that, originally, there was an objection on the part of the
local officials and those who oppose it by incorporating a plebiscite in this
bill. That was the solution. Because there were some sectors in the City
of Santiago who were opposing the reclassification or reconversion of the
city into a component city.
Senator Roco. All I wanted to say, Mr. President because the two of us
had special pictures (sic) in the city is that I thought it should be put on
record that we have supported originally the proposal to make it an
independent city. But now if it is their request, then, on the manifestation
of the Chairman, let it be so.
Thank you.
Senator Drilon. Mr. President.
Senator Drilon. Will the gentleman yield for a few questions, Mr.
President.
Senator Sotto. Yes, Mr. President.
Senator Drilon. Mr. President, further to the interpellation of our good
friend, the Senator from Bicol, on the matter of the opinion of the citizens
of Santiago City, there is a resolution passed by the Sanggunian on
January 30, 1997 opposing the conversion of Santiago from an
independent city.
This opposition was placed on records during the committee hearings.
And that is the reason why, as mentioned by the good sponsor, one of
the amendments is that a plebiscite be conducted before the law takes
effect.
The question I would like to raise and I would like to recall the
statement of our Minority Leader is that, at this time we should not be
passing it for a particular politician.
In this particular case, it is obvious that this bill is being passed in order
that the additional territory be added to the election of the provincial
officials of the province of Isabela.

While it is true that there may have been a resolution by the city council,
those who signed the resolution were not the whole of the council. This
bill was sponsored by the congressman of that district who represents a
constituency, the voice of the district.
I think, Mr. President, in considering which interest is paramount, whose
voice must be heard, and if we have to fathom the interest of the people,
the law which has been crafted here in accordance with the rules should
be given account, as we do give account to many of the legislations
coming from the House on local issues.
Senator Drilon. Mr. President, the reason why I am raising this question is
that, as Senator Roco said, just two and-a-half years ago we passed a bill
which indeed disenfranchized if we want to use that phrase the
citizens of the City of Santiago in the matter of the provincial election.
Two-and-a-half years after, we are changing the rule.
In the original charter, the citizens of the City of Santiago participated in a
plebiscite in order to approve the conversion of the city into an
independent city. I believe that the only way to resolve this issue raised
by Senator Roco is again to subject this issue to another plebiscite as
part of the provision of this proposed bill and as will be proposed by the
Committee Chairman as an amendment.
Thank you very much, Mr. President.
Senator Alvarez. Mr. President, the Constitution does not require that the
change from an independent to a component city be subjected to a
plebiscite.
Secs. 10, 11, 12 of Article X of the 1987 Constitution provides as follows:
Sec. 10. No province, city, municipality, or barangay may be created,
divided, merged, abolished, or its boundary substantially altered, except
in accordance with the criteria established in the local government code
and subject to approval by a majority of the votes cast in a plebiscite in
the political units directly affected.
This change from an independent city into a component city is none of
those enumerated. So the proposal coming from the House is in
adherence to this constitutional mandate which does not require a
plebiscite.
Senator Sotto. Mr. President, the key word here is "conversion". The
word "conversion" appears in that provision wherein we must call a
plebiscite. During the public hearing, the representative of Congressman
Abaya was insisting that this is not a conversion; this is merely a
reclassification. But it is clear in the bill.

Now, is this for the benefit of any particular politician, Mr. President.
Senator Sotto. If it is, I am not aware of it, Mr. President.
Senator Alvarez. Mr. President.
The President. With the permission of the two gentlemen on the Floor,
Senator Alvarez is recognized.
Senator Alvarez. As a born inbred citizen of this city, Mr. President, may I
share some information.
Mr. President, if we open up the election of the city to the provincial
leadership, it will not be to the benefit of the provincial leadership,
because the provincial leadership will then campaign in a bigger territory.
As a matter of fact, the ones who will benefit from this are the citizens of
Santiago who will now be enfranchised in the provincial electoral process,
and whose children will have the opportunity to grow into provincial
leadership. This is one of the prime reasons why this amendment is being
put forward.

We are amending a bill that converts, and we are converting it into a

component city. That is how the members of the committee felt. That is
why we have proposed an amendment to this, and this is to incorporate a
plebiscite in as much as there is no provision on incorporating a
plebiscite. Because we would like not only to give the other people of
Santiago a chance or be enfranchised as far as the leadership of the
province is concerned, but also we will give a chance to those who are
opposing it. To them, this is the best compromise. Let the people decide,
instead of the political leaders of Isabela deciding for them.
Senator Tatad. Mr. President.
The President. The Majority Leader is recognized.
Senator Tatad. At this point, Mr. President, I think we can move to close
the period of interpellations.
The President. Is there any objection? [Silence] There being none, the
motion is approved.

Senator Tatad. I move that we now consider the committee amendments,

Mr. President.

Thank you anyway, Mr. President.

Senator Alvarez. Mr. President.

The President. Is there any objection? [Silence] There being none the
motion is approved.
Senator Sotto. On page 2, after line 13, insert a new Section 3, as
follows:
Sec 3. SECTION 49 OF REPUBLIC ACT NO. 7720 IS HEREBY
AMENDED BY DELETING THE ENTIRE SECTION AND IN ITS STEAD
SUBSTITUTE THE FOLLOWING:
Sec. 49. PLEBISCITE. THE CONVERSION OF THE CITY OF
SANTIAGO INTO A COMPONENT CITY OF THE PROVINCE OF
ISABELA SHALL TAKE EFFECT UPON THE RETIFICATION OF THIS
ACT BY A MAJORITY OF THE PEOPLE OF SAID CITY IN A
PLEBISCITE WHICH SHALL BE HELD FOR THE PURPOSE WITHIN
SIXTY (60) DAYS FROM THE APPROVAL OF THIS ACT. THE
COMMISSION ON ELECTIONS SHALL CONDUCT AND SUPERVISE
SUCH PLEBISCITE.

The President. Senator Alvarez is recognized.

Senator Alvarez. Mr. President, may I express my deepest appreciation
for the statement of the gentleman from Ilocos and Laguna. Whatever he
may have said, the feeling is not mutual. At least for now, I have suddenly
become his great fan for the evening.
May I put on record, Mr. President, that I campaigned against the
cityhood of Santiago not because I do not want it to be a city but because
it had disenfranchised the young men of my city from aspiring for the
leadership of the province. The town is the gem of the province. How
could we extricate the town from the province?
But I would like to thank the gentleman, Mr. President, and also the
Chairman of the Committee.
Senator Tatad. Mr. President.

The President. Is there any objection?

The President. The Majority Leader is recognized.

Senator Enrile. Mr. President.

Senator Tatad. There being no committee amendments, I move that the

period of committee amendments be closed.

The President. Senator Enrile is recognized.

Senator Enrile. I object to this committee amendment, Mr. President.
SUSPENSION OF SESSION
Senator Tatad. May I ask for a one-minute suspension of the session.
The President. The session is suspended for a few minutes if there is no
objection. [There was none].

The President. Shall we amend the title of this bill by removing the word
"independent" preceding "component city"?
Senator Sotto. No, Mr. President. We are merely citing the title. The main
title of this House Bill No. 8729 is "An Act Amending Certain Sections of
Republic Act 7720". The title is the title of Republic Act 7720. So, I do not
think that we should amend that anymore.
The President. What is the pending motion? Will the gentleman kindly
state the motion?

It was 7:54 p.m.

RESUMPTION OF SESSION
At 7:57 p.m., the session was resumed.

Senator Tatad. I move that we close the period of committee

amendments.
The President. Is there any objection? [Silence] There being none, the
motion is approved.

The President. The session is resumed.

Senator Sotto is recognized.

Senator Tatad. Unless there are any individual amendments, I move that
we close the period of individual amendments.

Senator Sotto. Mr. President, after a very enlightening conversation with

the elders of the Body, I withdraw my amendment.

The President. Is there any objection? [Silence] There being none, the
period of individual amendments is closed.

The President. The amendment is withdrawn.

APPROVAL OF H.B. NO. 8729 ON SECOND READING

Senator Maceda. Mr. President.

Senator Tatad. Mr. President, I move that we vote on Second Reading on

House Bill No. 8729.

The President. Senator Maceda is recognized.

Senator Maceda. We wish to thank the sponsor for the withdrawal of the
amendment.
Mr. President, with due respect to the Senator from Isabela I am no
great fan of the Senator from Isabela but it so happens that this is a
local bill affecting not only his province but his own city where he is a
resident and registered voter.
So, unless the issue is really a matter of life and death and of national
importance, senatorial courtesy demands that we, as much as possible,
accommodate the request of the Senator from Isabela as we have done
on matters affecting the district of other senators. I need not remind them.

The President. Is there any objection? [Silence] There being none, we

shall now vote on Second Reading on House Bill No. 8729.
As many as are in favor of the bill, say aye.
Several Members. Aye.
As many as are against the bill, say nay. [Silences]
House Bill No. 8279 is approved on Second Reading.
The debates cannot but raise some quizzical eyebrows on the real
purpose for the downgrading of the city of Santiago. There is all the
reason to listen to the voice of the people of the city via a plebiscite.

In the case of Tan, et al. v. COMELEC, 15 BP 885 was enacted

partitioning the province of Negros Occidental without consulting its
people in a plebiscite. In his concurring opinion striking down the law as
unconstitutional, Chief Justice Teehankee cited the illicit political purpose
behind its enactment, viz:
The scenario, as petitioners urgently asserted, was "to have the creation
of the new Province a fait accompli by the time elections are held on
February 7, 1986. The transparent purpose is unmistakably so that the
new Governor and other officials shall by then have been installed in
office, ready to function for purposes of the election for President and
Vice-President." Thus, the petitioners reported after the event: "With
indecent haste, the plebiscite was held; Negros del Norte was set up and
proclaimed by President Marcos as in existence; a new set of
government officials headed by Governor Armando Gustilo was
appointed; and, by the time the elections were held on February 7, 1986,
the political machinery was in place to deliver the "solid North" to exPresident Marcos. The rest is history. What happened in Negros del
Norte during the elections the unashamed use of naked power and
resources contributed in no small way to arousing "people's power"
and steel the ordinary citizen to perform deeds of courage and patriotism
that makes one proud to be a Filipino today.

prerogatives already enjoyed by the City of San Carlos. In fact, the City of
San Carlos as of now, is a component city. It is not a highly urbanized
city. Therefore, this bill merely, as we said earlier, grants the voters of the
city, the power to vote in provincial elections, without in any way changing
the character of its being a component city. It is for this reason that I vote
in favor of this bill.
It was Senator Pimentel who also sponsored the bill 19 allowing qualified
voters of the city of Oroquieta to vote in provincial elections of the
province of Misamis Occidental. In his sponsorship speech, he explained
that the right to vote being given to the people of Oroquieta City was
consistent with its status as a component city. 20 Indeed, during the
debates, former Senator Neptali Gonzales pointed out the need to
remedy the anomalous situation then obtaining". . . where voters of one
component city cannot vote simply because their charters so
provide." 21 Thus, Congress amended other charters of component cities
prohibiting their people from voting in provincial elections.
IN VIEW WHEREOF, the petition is granted. Republic Act No. 8528 is
declared unconstitutional and the writ of prohibition is hereby issued
commanding the respondents to desist from implementing said law.
SO ORDERED.

The challenged Act is manifestly void and unconstitutional. Consequently,

all the implementing acts complained of, viz., the plebiscite, the
proclamation of a new province of Negros del Norte and the appointment
of its officials are equally void. The limited holding of the plebiscite only in
the areas of the proposed new province (as provided by Section 4 of the
Act) to the exclusion of the voters of the remaining areas of the integral
province of Negros Occidental (namely, the three cities of Bacolod, Bago
and La Carlota and the Municipalities of Las Castellana, Isabela, Moises
Padilla, Pontevedra, Hinigaran, Himamaylan, Kabankalan, Murcia,
Valladoid, San Enrique, Ilog, Cauayan, Hinoba-an and Sipalay and
Candoni), grossly contravenes and disregards the mandate of Article XI,
section 3 of the then prevailing 1973 Constitution that no province may be
created or divided or its boundary substantially altered without "the
approval of a majority of the votes in a plebiscite in the unit or units
affected." It is plain that all the cities and municipalities of the province of
Negros Occidental, not merely those of the proposed new province,
comprise the units affected. It follows that the voters of the whole and
entire province of Negros Occidental have to participate and give their
approval in the plebiscite, because the whole is affected by its proposed
division and substantial alteration of its boundary. To limit the plebiscite to
only the voters of the areas to be partitioned and seceded from the
province is as absurd and illogical as allowing only the secessionists to
vote for the secession that they demanded against the wishes of the
majority and to nullify the basic principle of majority rule.
Mr. Justice Mendoza and Mr. Justice Buena also cite two instances when
allegedly independent component cities were downgraded into
component cities without need of a plebiscite. They cite the City of
Oroquieta, Misamis Occidental, 16 and the City of San Carlos,
Pangasinan 17 whose charters were amended to allow their people to
vote and be voted upon in the election of officials of the province to which
their city belongs without submitting the amendment to a plebiscite. With
due respect, the cities of Oroquieta and San Carlos are not similarly
situated as the city of Santiago. The said two cities then were not
independent component cities unlike the city of Santiago. The two cities
were chartered but were not independent component cities for both were
not highly urbanized cities which alone were considered independent
cities at that time. Thus, when the case of San Carlos City was under
consideration by the Senate, Senator Pimentel explained: 18
. . . Senator Pimentel. The bill under consideration, Mr. President, merely
empowers the voters of San Carlos to vote in the elections of provincial
officials. There is no intention whatsoever to downgrade the status of the
City of San Carlos and there is no showing whatsoever that the
enactment of this bill will, in any way, diminish the powers and

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. 133076 September 22, 1999

MOISES S. SAMSON, petitioner,
vs.
HON. ALEXANDER AGUIRRE, in his capacity as the Executive
Secretary, COMMISSION ON ELECTIONS, and the DEPARTMENT OF
BUDGET, respondents.

QUISUMBING, J.:
On February 23, 1998, President Fidel V. Ramos signed into law
Republic Act No. 8535, creating the City of Novaliches out of 15
barangays of Quezon City. Petitioner Moises S. Samson, incumbent
councilor of the first district of Quezon City, is now before the Court
challenging the constitutionality of Republic Act No. 8535.
Petitioner also seeks to enjoin the Executive Secretary from ordering the
implementation of R.A. 8535, the COMELEC from holding a plebiscite for
the creation of the City of Novaliches, and the Department of Budget and
Management from disbursing funds for said plebiscite. Lastly, he prays
for the issuance of a preliminary injunction or temporary restraining order,
through a motion we duly noted.
Petitioner bases his petition on the following grounds:
a) R.A. No. 8535 failed to conform to the criteria established by the Local
Government Code particularly, Sections 7, 11(a) and 450(a), as to the
requirements of income, population and land area; seat of government;
and no adverse effect to being a city of Quezon City, respectively, and its
Implementing Rules as provided in Article 11(b)(1) and (2), as to
furnishing a copy of the Quezon City Council of barangay resolution; and
b) The said law will in effect amend the Constitution. 1

Petitioner asserts that certifications as to income, population, and land

area were not presented to Congress during the deliberations that led to
the passage of R.A. No. 8535. This, he argues, is clear from the minutes
of the public hearings conducted by the Senate Committee on Local
Government on the proposed charter of the City of Novaliches. Petitioner
particularly cites its hearings held on October 3 and 27, 1997. He is
silent, however, on the hearings held by the appropriate Committee in the
House of Representatives.
Likewise, petitioner points out that there is no certification attesting to the
fact that the mother local government unit, Quezon City, would not be
adversely affected by the creation of the City of Novaliches, in terms of
income, population, and land area.
In their Comment, respondents through the Office of the Solicitor
General, traversed all the allegations of petitioner. They claimed he failed
to substantiate said allegations with convincing proof. In their
memorandum, respondents argued that petitioner had the burden of
proof to overcome the legal presumption that Congress considered all the
legal requirements under the Local Government Code of 1991 in passing
R.A. 8535. Further, respondents stated that the petition itself is devoid of
any pertinent document supporting petitioner's claim that R.A. 8535 is
unconstitutional. Respondents pray that the present petition be dismissed
for lack of merit.
In Victoriano v. Elizalde Rope Workers' Union, 2 we had occasion to
stress that:
All presumptions are indulged in favor of constitutionality; one who
attacks a statute, alleging unconstitutionality must prove its invalidity
beyond a reasonable doubt; that a law may work hardship does not
render it unconstitutional; that if any reasonable basis may be conceived
which supports the statute, it will be upheld, and the challenger must
negate all possible bases; that the courts are not concerned with the
wisdom, justice, policy, or expediency of a statute; and that a liberal
interpretation of the constitution in favor of the constitutionality of
legislation should be adopted. 3
Every statute is presumed valid. 4 Every law is presumed to have passed
through regular congressional processes. 5 A person asserting the
contrary has the burden of proving his allegations clearly and
unmistakably. Having this in mind, we now proceed to examine whether
or not petitioner was able to successfully overcome the presumption of
validity accorded R.A. No. 8535.
The Local Government Code of 1991 provides under Section 7:
Sec. 7. Creation and Conversion. As a general rule, the creation of a
local government unit or its conversion from one level to another level
shall be based on verifiable indicators of viability and projected capacity
to provide services, to wit:
(a) Income. It must be sufficient, based on acceptable standards, to
provide for all essential government facilities and services and special
functions commensurate with the size of its population, as expected of
the local government unit concerned;
(b) Population. It shall be determined as the total number of
inhabitants within the territorial jurisdiction of the local government unit
concerned; and
(c) Land Area. It must be contiguous, unless it comprises two or more
islands or is separated by a local government unit independent of the
others; properly identified by metes and bounds with technical
descriptions; and sufficient to provide for such basic services and
facilities to meet the requirements of its populace.

Compliance with the foregoing indicators shall be attested to by the

Department of Finance (DOF), the National Statistics Office (NSO), and
the Land Management Bureau (LMB) of the Department of Environment
and Natural Resources (DENR).
Corollarily, the Rules and Regulations Implementing the Code provide in
Article 11:
Art. 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
non recurring income; and
(2) Population or land area Population which shall not be less than one
hundred fifty thousand (150,000) inhabitants, as certified by the NSO; or
land area which must be contiguous with an area of at least one hundred
(100) square kilometers, as certified by LMB. The territory need not be
contiguous if it comprises two (2) or more islands or is separated by a
chartered city or cities which do not contribute to the income of the
province. The land area requirement shall not apply where the proposed
city is composed of one (1) or more islands. The territorial jurisdiction of a
city sought to be created shall be properly identified by metes and
bounds.
The creation of a new city shall not reduce the land area, population, and
income of the original LGU or LGUs at the time of said creation to less
than the prescribed minimum requirements. All expenses incidental to the
creation shall be borne by the petitioners.
Petitioner argues that no certifications attesting compliance with the
foregoing requirements were submitted to Congress, citing in particular
public hearings held by the Senate Committee on Local Government.
However, we note that the bill that eventually became R.A. No. 8535
originated in the House of Representatives. Its principal sponsor is Cong.
Dante Liban of Quezon City. Petitioner did not present any proof, but only
allegations, that no certifications were submitted to the House Committee
on Local Government, as is the usual practice in this regard. Allegations,
without more, cannot substitute for proof. The presumption stands that
the law passed by Congress, based on the bill of Cong. Liban, had
complied with all the requisites therefor.
Moreover, present during the public hearings held by the Senate
Committee on Local Government were resource persons from the
different government offices like National Statistics Office, Bureau of
Local Government Finance, Land Management Bureau, and Department
of Budget, and Management, aside from officials of Quezon City itself.
The representative from the Bureau of Local Government Finance
estimated the combined average annual income of the 13
barangays 6 for the years 1995 and 1996 to be around
P26,952,128.26. 7 Under the Local Government Code, a proposed city
must have an average annual income of only at least P20,000,000.00 for
the immediately preceding two years. The representative from the NSO
estimated the population in the barangays that would comprise the
proposed City of Novaliches to be around 347,310. 8 This figure is more
than the 150,000 required by the Implementing Rules. There is no need
to consider the land area, given these figures, since under the Local
Government Code, the proposed city must comply with requirements as
regards income and population or land area. Other than the income
requirement, the proposed city must have the requisite number of
inhabitants or land area. Compliance with either requirement, in addition

to income, is sufficient. Judicial notice may also be taken that Novaliches

is now highly urbanized.
Petitioner avers that the oral manifestation made by the representatives
of government offices is not enough certification. But respondents reply
that in the hearings, particularly by the Local Government Committee
headed by Senator Sotto, on October 3 and 27, 1997, the DBM, DILG,
and Finance Officials were present along with other officers armed with
official statistics and reference materials. In their official capacity, they
spoke and shed light on population, land area and income of the
proposed city. Their official statements could serve the same purpose
contemplated by law requiring certificates. Their affirmation as well as
their oath as witnesses in open session of either the Senate or the House
of Representatives give even greater solemnity than a certification
submitted to either chamber routinely.
Moreover, petitioner failed to show that, aside from the oral declarations
during the public hearings, the representatives present did
not also submit written certifications. Note that under the Implementing
Rules, written certifications are required to be attached to the petition for
the creation of a city, to be submitted by interested municipalities or
barangays to Congress in the form of a resolution. Petitioner, however,
did not even bother to present a copy of said petition if only to prove that
it was without the written certifications attached as required by law. We
are thus constrained to presume, as respondents urge, that these
requirements were met appropriately in the passage of the assailed
legislative act.
Petitioner then argues that R.A. No. 8535 failed to specify the seat of
government of the proposed City of Novaliches as required under Section
11(a) of the Local Government Code:
Sec. 11. Selection and Transfer of Local Government Site, Offices, and
Facilities. (a) The law or ordinance creating or merging local
government units shall specify the seat of government from where
governmental and corporate service shall be delivered. In selecting said
site, factors relating to geographical centrality, accessibility, availability of
transportation and communication facilities, drainage and sanitation,
development and economic progress, and other relevant considerations
shall be taken into account.
Indeed, a reading of R.A. No. 8535 will readily show that it does not
provide for a seat of government. However, this omission, to our mind, is
not as fatal to the validity of R.A. No. 8535 as petitioner makes it to be.
We agree with respondents that under Section 12 of the Local
Government Code, which applies to the proposed City of Novaliches by
virtue of Section 54 of R.A. No. 8535, 9 the City of Novaliches can still
establish a seat of government after its creation. For said Code already
provides as follows:

evidence on this point. Quezon City Mayor Ismael Mathay, Jr., was
present during the deliberations of the Senate Committee on Local
Government, and made no mention of anything concerning such adverse
effects. As chief executive of Quezon City, Mayor Mathay would be the
first person to protest any development that might prove detrimental to
Quezon City. The fact that he did not raise any adverse issue during the
public hearings on R.A. No. 8535, stressing instead his concern on the
matter of inclusion of all Quezon City voters in the plebiscite that would
decide the fate of the City of Novaliches, is indicative of the nonexistence of such negative issues. Moreover, in the plebiscite as
contemplated on R.A. 8535, all persons concerned will obviously have
the opportunity to raise those issues even before they vote on the
principal question of the cityhood of Novaliches.
That the Quezon City Council was not furnished a copy of the petition of
concerned barangays calling for the creation of the City of Novaliches, if
true, will also not render invalid R.A. No. 8535. The evident purpose of
this requirement, found in the Implementing Rules, is to inform the City
Council of the move to create another city and to enable it to formulate its
comments and recommendations on said petition. The Quezon City
Council members are obviously aware of the petition. The matter has
been widely publicized in the mass media. Surely members of the
Quezon City Council, including petitioner, could not now be heard to
claim they have not known of the contents of the barangays' petition to
create the City of Novaliches.
The proposed creation of the City of Novaliches will in no way result in a
prohibited amendment of the Constitution, contrary to petitioner's
contention. The ordinance appended to the Constitution merely
apportions the seats of the House of Representatives to the different
legislative districts in the country. Nowhere does it provide that Metro
Manila shall forever be composed of only 17 cities and municipalities as
claimed by petitioner. Too literal a reading of the ordinance in or appendix
of the Constitution will only result in its erroneous interpretation.
Clearly, from the foregoing considerations, petitioner has failed to present
clear and convincing proof to defeat the presumption of constitutionality
being enjoyed by R.A. No. 8535. Nor did he succeed to convince the
Court with substantial and persuasive legal reasons for us to grant the
reliefs he seeks.
WHEREFORE, the instant petition is hereby DISMISSED.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC

Sec. 12. Government Centers. Provinces, cities, and municipalities

shall endeavor to establish a government center where offices, agencies,
or branches of the National Government, local government units, or
government-owned or-controlled corporations may, as far as practicable,
be located. In designating such a center, the local government unit
concerned shall take into account the existing facilities of national and
local agencies and offices which may serve as the government center as
contemplated under this Section. The National Government, local
government unit or government-owned or-controlled corporation
concerned shall bear the expenses for the construction of its buildings
and facilities in the government center.
While Section 12 speaks of the site of government centers, such site can
very well also be the seat of government, "from where governmental and
corporate service shall be delivered." 10
With regard to the alleged adverse effect on Quezon City by the creation
of the City of Novaliches, petitioner again failed to present any concrete

G.R. No. 118303

January 31, 1996

SENATOR HEHERSON T. ALVAREZ, SENATOR JOSE D. LINA, JR.,

MR. NICASIO B. BAUTISTA, MR. JESUS P. GONZAGA, MR.
SOLOMON D. MAYLEM, LEONORA C. MEDINA, CASIANO S.
ALIPON, petitioners,
vs.
HON. TEOFISTO T. GUINGONA, JR., in his capacity as Executive
Secretary, HON. RAFAEL ALUNAN, in his capacity as Secretary of Local
Government, HON. SALVADOR ENRIQUEZ, in his capacity as Secretary
of Budget, THE COMMISSION ON AUDIT, HON. JOSE MIRANDA, in his
capacity as Municipal Mayor of Santiago and HON. CHARITO
MANUFAY, HON. VICTORINO MIRANDA, JR., HON. ARTEMIO
ALVAREZ, HON. DANILO VERGARA, HON. PETER DE JESUS, HON.
NELIA NATIVIDAD, HON. CELSO CALEON and HON. ABEL MUSNGI,
in their capacity as SANGGUNIANG BAYAN MEMBERS, MR. RODRIGO
L. SANTOS, in his capacity as Municipal Treasurer, and ATTY.

ALFREDO S. DIRIGE, in his capacity as Municipal

Administrator, respondents.
DECISION

The enrolled bill, submitted to the President on April 12, 1994, was
signed by the Chief Executive on May 5, 1994 as Republic Act No. 7720.
When a plebiscite on the Act was held on July 13, 1994, a great majority
of the registered voters of Santiago voted in favor of the conversion of
Santiago into a city.

HERMOSISIMA, JR., J.:

Of main concern to the petitioners is whether Republic Act No. 7720, just
recently passed by Congress and signed by the President into law, is
constitutionally infirm.
Indeed, in this Petition for Prohibition with prayer for Temporary
Restraining Order and Preliminary Prohibitory Injunction, petitioners
assail the validity of Republic Act No. 7720, entitled, "An Act Converting
the Municipality of Santiago, Isabela into an Independent Component City
to be known as the City of Santiago," mainly because the Act allegedly
did not originate exclusively in the House of Representatives as
mandated by Section 24, Article VI of the 1987 Constitution.
Also, petitioners claim that the Municipality of Santiago has not met the
minimum average annual income required under Section 450 of the Local
Government Code of 1991 in order to be converted into a component
city.
Undisputed is the following chronicle of the metamorphosis of House Bill
No. 8817 into Republic Act No. 7720:
On April 18, 1993, HB No. 8817, entitled "An Act Converting the
Municipality of Santiago into an Independent Component City to be
known as the City of Santiago," was filed in the House of Representatives
with Representative Antonio Abaya as principal author. Other sponsors
included Representatives Ciriaco Alfelor, Rodolfo Albano, Santiago
Respicio and Faustino Dy. The bill was referred to the House Committee
on Local Government and the House Committee on Appropriations on
May 5, 1993.
On May 19, 1993, June 1, 1993, November 28, 1993, and December 1,
1993, public hearings on HB No. 8817 were conducted by the House
Committee on Local Government. The committee submitted to the House
a favorable report, with amendments, on December 9, 1993.
On December 13, 1993, HB No. 8817 was passed by the House of
Representatives on Second Reading and was approved on Third
Reading on December 17, 1993. On January 28, 1994, HB No. 8817 was
transmitted to the Senate.
Meanwhile, a counterpart of HB No. 8817, Senate Bill No. 1243, entitled,
"An Act Converting the Municipality of Santiago into an Independent
Component City to be Known as the City of Santiago," was filed in the
Senate. It was introduced by Senator Vicente Sotto III, as principal
sponsor, on May 19, 1993. This was just after the House of
Representatives had conducted its first public hearing on HB No. 8817.
On February 23, 1994, or a little less than a month after HB No. 8817
was transmitted to the Senate, the Senate Committee on Local
Government conducted public hearings on SB No. 1243. On March 1,
1994, the said committee submitted Committee Report No. 378 on HB
No. 8817, with the recommendation that it be approved without
amendment, taking into consideration the reality that H.B. No. 8817 was
on all fours with SB No. 1243. Senator Heherson T. Alvarez, one of the
herein petitioners, indicated his approval thereto by signing said report as
member of the Committee on Local Government.
On March 3, 1994, Committee Report No. 378 was passed by the Senate
on Second Reading and was approved on Third Reading on March 14,
1994. On March 22, 1994, the House of Representatives, upon being
apprised of the action of the Senate, approved the amendments
proposed by the Senate.

The question as to the validity of Republic Act No. 7720 hinges on the
following twin issues: (I) Whether or not the Internal Revenue Allotments
(IRAs) are to be included in the computation of the average annual
income of a municipality for purposes of its conversion into an
independent component city, and (II) Whether or not, considering that the
Senate passed SB No. 1243, its own version of HB No. 8817, Republic
Act No. 7720 can be said to have originated in the House of
Representatives.
I
The annual income of a local
government unit includes the IRAs
Petitioners claim that Santiago could not qualify into a component city
because its average annual income for the last two (2) consecutive years
based on 1991 constant prices falls below the required annual income of
Twenty Million Pesos (P20,000,000.00) for its conversion into a city,
petitioners having computed Santiago's average annual income in the
following manner:
Total income (at 1991 constant prices) for 1991

P 20,379,057.

Total income (at 1991 constant prices) for 1992

P 21,570,106.

Total income for 1991 and 1992

P 41,949,163.

Minus:
IRAs for 1991 and 1992

P 15,730,043.

Total income for 1991 and 1992

P 26,219,120.

Average Annual Income

P 13,109,560.
===========

By dividing the total income of Santiago for calendar years 1991 and
1992, after deducting the IRAs, the average annual income arrived at
would only be P13,109,560.47 based on the 1991 constant prices. Thus,
petitioners claim that Santiago's income is far below the aforesaid Twenty
Million Pesos average annual income requirement.
The certification issued by the Bureau of Local Government Finance of
the Department of Finance, which indicates Santiago's average annual
income to be P20,974,581.97, is allegedly not accurate as the Internal
Revenue Allotments were not excluded from the computation. Petitioners
asseverate that the IRAs are not actually income but transfers and/or
budgetary aid from the national government and that they fluctuate,
increase or decrease, depending on factors like population, land and
equal sharing.
In this regard, we hold that petitioners asseverations are untenable
because Internal Revenue Allotments form part of the income of Local
Government Units.
It is true that for a municipality to be converted into a component city, it
must, among others, have an average annual income of at least Twenty
Million Pesos for the last two (2) consecutive years based on 1991
constant prices.1 Such income must be duly certified by the Department
of Finance.

Resolution of the controversy regarding compliance by the Municipality of

Santiago with the aforecited income requirement hinges on a correlative
and contextual explication of the meaning of internal revenue allotments
(IRAs) vis-a-vis the notion of income of a local government unit and the
principles of local autonomy and decentralization underlying the
institutionalization and intensified empowerment of the local government
system.
A Local Government Unit is a political subdivision of the State which is
constituted by law and possessed of substantial control over its own
affairs.3 Remaining to be an intra sovereign subdivision of one sovereign
nation, but not intended, however, to be an imperium in imperio,4 the
local government unit is autonomous in the sense that it is given more
powers, authority, responsibilities and resources.5 Power which used to
be highly centralized in Manila, is thereby deconcentrated, enabling
especially the peripheral local government units to develop not only at
their own pace and discretion but also with their own resources and
assets.
The practical side to development through a decentralized local
government system certainly concerns the matter of financial resources.
With its broadened powers and increased responsibilities, a local
government unit must now operate on a much wider scale. More
extensive operations, in turn, entail more expenses. Understandably, the
vesting of duty, responsibility and accountability in every local
government unit is accompanied with a provision for reasonably
adequate resources to discharge its powers and effectively carry out its
functions.7 Availment of such resources is effectuated through the
vesting in every local government unit of (1) the right to create and
broaden its own source of revenue; (2) the right to be allocated a just
share in national taxes, such share being in the form of internal revenue
allotments (IRAs); and (3) the right to be given its equitable share in the
proceeds of the utilization and development of the national wealth, if any,
within its territorial boundaries.8
The funds generated from local taxes, IRAs and national wealth utilization
proceeds accrue to the general fund of the local government and are
used to finance its operations subject to specified modes of spending the
same as provided for in the Local Government Code and its
implementing rules and regulations. For instance, not less than twenty
percent (20%) of the IRAs must be set aside for local development
projects.9 As such, for purposes of budget preparation, which budget
should reflect the estimates of the income of the local government unit,
among others, the IRAs and the share in the national wealth utilization
proceeds are considered items of income. This is as it should be, since
income is defined in the Local Government Code to be all revenues and
receipts collected or received forming the gross accretions of funds of the
local government unit.10
The IRAs are items of income because they form part of the gross
accretion of the funds of the local government unit. The IRAs regularly
and automatically accrue to the local treasury without need of any further
action on the part of the local government unit.11 They thus constitute
income which the local government can invariably rely upon as the
source of much needed funds.
For purposes of converting the Municipality of Santiago into a city, the
Department of Finance certified, among others, that the municipality had
an average annual income of at least Twenty Million Pesos for the last
two (2) consecutive years based on 1991 constant prices. This, the
Department of Finance did after including the IRAs in its computation of
said average annual income.
Furthermore, Section 450 (c) of the Local Government Code provides
that "the average annual income shall include the income accruing to the
general fund, exclusive of special funds, transfers, and non-recurring
income." To reiterate, IRAs are a regular, recurring item of income; nil is
there a basis, too, to classify the same as a special fund or transfer, since

IRAs have a technical definition and meaning all its own as used in the
Local Government Code that unequivocally makes it distinct from special
funds or transfers referred to when the Code speaks of "funding support
from the national government, its instrumentalities and governmentowned-or-controlled corporations".12
Thus, Department of Finance Order No. 35-9313 correctly encapsulizes
the full import of the above disquisition when it defined ANNUAL
INCOME to be "revenues and receipts realized by provinces, cities and
municipalities from regular sources of the Local General Fund including
the internal revenue allotment and other shares provided for in Sections
284, 290 and 291 of the Code, but exclusive of non-recurring receipts,
such as other national aids, grants, financial assistance, loan proceeds,
sales of fixed assets, and similar others" (Emphasis ours).14 Such order,
constituting executive or contemporaneous construction of a statute by
an administrative agency charged with the task of interpreting and
applying the same, is entitled to full respect and should be accorded
great weight by the courts, unless such construction is clearly shown to
be in sharp conflict with the Constitution, the governing statute, or other
laws.15
II
In the enactment of RA No. 7720,
there was compliance with Section 24,
Article VI of the 1987 Constitution
Although a bill of local application like HB No. 8817 should, by
constitutional prescription,16 originate exclusively in the House of
Representatives, the claim of petitioners that Republic Act No. 7720 did
not originate exclusively in the House of Representatives because a bill
of the same import, SB No. 1243, was passed in the Senate, is untenable
because it cannot be denied that HB No. 8817 was filed in the House of
Representatives first before SB No. 1243 was filed in the Senate.
Petitioners themselves cannot disavow their own admission that HB No.
8817 was filed on April 18, 1993 while SB No. 1243 was filed on May 19,
1993. The filing of HB No. 8817 was thus precursive not only of the said
Act in question but also of SB No. 1243. Thus, HB No. 8817, was the bill
that initiated the legislative process that culminated in the enactment of
Republic Act No. 7720. No violation of Section 24, Article VI, of the 1987
Constitution is perceptible under the circumstances attending the instant
controversy.
Furthermore, petitioners themselves acknowledge that HB No. 8817 was
already approved on Third Reading and duly transmitted to the Senate
when the Senate Committee on Local Government conducted its public
hearing on HB No. 8817. HB No. 8817 was approved on the Third
Reading on December 17, 1993 and transmitted to the Senate on
January 28, 1994; a little less than a month thereafter, or on February 23,
1994, the Senate Committee on Local Government conducted public
hearings on SB No. 1243. Clearly, the Senate held in abeyance any
action on SB No. 1243 until it received HB No. 8817, already approved
on the Third Reading, from the House of Representatives. The filing in
the Senate of a substitute bill in anticipation of its receipt of the bill from
the House, does not contravene the constitutional requirement that a bill
of local application should originate in the House of Representatives, for
as long as the Senate does not act thereupon until it receives the House
bill.
We have already addressed this issue in the case of Tolentino
vs. Secretary of Finance.17 There, on the matter of the Expanded Value
Added Tax (EVAT) Law, which, as a revenue bill, is nonetheless
constitutionally required to originate exclusively in the House of
Representatives, we explained:
. . . To begin with, it is not the law but the revenue bill which is
required by the Constitution to "originate exclusively" in the House of
Representatives. It is important to emphasize this, because a bill

originating in the House may undergo such extensive changes in the

Senate that the result may be a rewriting of the whole. . . . as a result of
the Senate action, a distinct bill may be produced. To insist that a
revenue statute and not only the bill which initiated the legislative
process culminating in the enactment of the law must substantially be
the same as the House bill would be to deny the Senate's power not only
to "concur with amendments" but also to "propose amendments." It would
be to violate the coequality of legislative power of the two houses of
Congress and in fact make the House superior to the Senate.

Republic of the Philippines

SUPREME COURT
Manila

xxx

JUANITO MARIANO, JR. et al., petitioners,

vs.
THE COMMISSION ON ELECTIONS, THE MUNICIPALITY OF
MAKATI, HON. JEJOMAR BINAY, THE MUNICIPAL TREASURER,
AND SANGGUNIANG BAYAN OF MAKATI, respondents.

xxx

xxx

It is insisted, however, that S. No. 1630 was passed not in substitution of

H. No. 11197 but of another Senate bill (S. No. 1129) earlier filed and that
what the Senate did was merely to "take [H. No. 11197] into
consideration" in enacting S. No. 1630. There is really no difference
between the Senate preserving H. No. 11197 up to the enacting clause
and then writing its own version following the enacting clause (which, it
would seem petitioners admit is an amendment by substitution), and, on
the other hand, separately presenting a bill of its own on the same
subject matter. In either case the result are two bills on the same subject.
Indeed, what the Constitution simply means is that the initiative for filing
revenue, tariff, or tax bills, bills authorizing an increase of the public debt,
private bills and bills of local application must come from the House of
Representatives on the theory that, elected as they are from the districts,
the members of the House can be expected to be more sensitive to the
local needs and problems. On the other hand, the senators, who are
elected at large, are expected to approach the same problems from the
national perspective. Both views are thereby made to bear on the
enactment of such laws.
Nor does the Constitution prohibit the filing in the Senate of a substitute
bill in anticipation of its receipt of the bill from the House, so long as
action by the Senate as a body is withheld pending receipt of the House
bill. . . .18
III
Every law, including RA No. 7720,
has in its favor the presumption
of constitutionality
It is a well-entrenched jurisprudential rule that on the side of every law
lies the presumption of constitutionality.19Consequently, for RA No. 7720
to be nullified, it must be shown that there is a clear and unequivocal
breach of the Constitution, not merely a doubtful and equivocal one; in
other words, the grounds for nullity must be clear and beyond reasonable
doubt.20 Those who petition this court to declare a law to be
unconstitutional must clearly and fully establish the basis that will justify
such a declaration; otherwise, their petition must fail. Taking into
consideration the justification of our stand on the immediately preceding
ground raised by petitioners to challenge the constitutionality of RA No.
7720, the Court stands on the holding that petitioners have failed to
overcome the presumption. The dismissal of this petition is, therefore,
inevitable.
WHEREFORE, the instant petition is DISMISSED for lack of merit with
costs against petitioners.
SO ORDERED.

EN BANC

G.R. No. 118577 March 7, 1995

G.R. No. 118627 March 7, 1995

JOHN R. OSMEA, petitioner,
vs.
THE COMMISSION ON ELECTIONS, THE MUNICIPALITY OF MAKATI,
HON. JEJOMAR BINAY, MUNICIPAL TREASURER, AND
SANGGUNIANG BAYAN OF MAKATI, respondents.

PUNO, J.:
At bench are two (2) petitions assailing certain provisions of Republic Act
No. 7854 as unconstitutional. R.A. No. 7854 as unconstitutional. R.A. No.
7854 is entitled, "An Act Converting the Municipality of Makati Into a
Highly Urbanized City to be known as the City of Makati." 1
G.R. No. 118577 involves a petition for prohibition and declaratory relief.
It was filed by petitioners Juanito Mariano, Jr., Ligaya S. Bautista,
Teresita Tibay, Camilo Santos, Frankie Cruz, Ricardo Pascual, Teresita
Abang, Valentina Pitalvero, Rufino Caldoza, Florante Alba, and Perfecto
Alba. Of the petitioners, only Mariano, Jr., is a resident of Makati. The
others are residents of Ibayo Ususan, Taguig, Metro Manila. Suing as
taxpayers, they assail as unconstitutional sections 2, 51, and 52 of R.A.
No. 7854 on the following grounds:
1. Section 2 of R.A. No. 7854 did not properly identify the land area or
territorial jurisdiction of Makati by metes and bounds, with technical
descriptions, in violation of Section 10, Article X of the Constitution, in
relation to Sections 7 and 450 of the Local Government Code;
2. Section 51 of R.A. No. 7854 attempts to alter or restart the "three
consecutive term" limit for local elective officials, in violation of Section 8,
Article X and Section 7, Article VI of the Constitution.
3. Section 52 of R.A. No. 7854 is unconstitutional for:
(a) it increased the legislative district of Makati only by special law (the
Charter in violation of the constitutional provision requiring a general
reapportionment law to be passed by Congress within three (3) years
following the return of every census;
(b) the increase in legislative district was not expressed in the title of the
bill; and
(c) the addition of another legislative district in Makati is not in accord with
Section 5 (3), Article VI of the Constitution for as of the latest survey
(1990 census), the population of Makati stands at only 450,000.
G.R. No. 118627 was filed by the petitioner John H. Osmea as senator,
taxpayer, and concerned citizen. Petitioner assails section 52 of R.A. No.
7854 as unconstitutional on the same grounds as aforestated.

We find no merit in the petitions.

I
Section 2, Article I of R.A. No. 7854 delineated the land areas of the
proposed city of Makati, thus:
Sec. 2. The City of Makati. The Municipality of Makati shall be
converted into a highly urbanized city to be known as the City of Makati,
hereinafter referred to as the City, which shall comprise the present
territory of the Municipality of Makati in Metropolitan Manila Area over
which it has jurisdiction bounded on the northeast by Pasig River and
beyond by the City of Mandaluyong and the Municipality of Pasig; on the
southeast by the municipalities of Pateros and Taguig; on the southwest
by the City of Pasay and the Municipality of Taguig; and, on the
northwest, by the City of Manila.
The foregoing provision shall be without prejudice to the resolution by the
appropriate agency or forum of existing boundary disputes or cases
involving questions of territorial jurisdiction between the City of Makati
and the adjoining local government units. (Emphasis supplied)
In G.R. No. 118577, petitioners claim that this delineation violates
sections 7 and 450 of the Local Government Code which require that the
area of a local government unit should be made by metes and bounds
with technical descriptions. 2
The importance of drawing with precise strokes the territorial boundaries
of a local unit of government cannot be overemphasized. The boundaries
must be clear for they define the limits of the territorial jurisdiction of a
local government unit. It can legitimately exercise powers of government
only within the limits, its acts are ultra vires. Needless to state, any
uncertainty in the boundaries of local government units will sow costly
conflicts in the exercise of governmental powers which ultimately will
prejudice the people's welfare. This is the evil sought to avoided by the
Local Government Code in requiring that the land area of a local
government unit must be spelled out in metes and bounds, with technical
descriptions.
Given the facts of the cases at bench, we cannot perceive how this evil
can be brought about by the description made in section 2 of R.A. No.
7854, Petitioners have not demonstrated that the delineation of the land
area of the proposed City of Makati will cause confusion as to its
boundaries. We note that said delineation did not change even by an inch
the land area previously covered by Makati as a municipality. Section 2
did not add, subtract, divide, or multiply the established land area of
Makati. In language that cannot be any clearer, section 2 stated that, the
city's land area "shall comprise the present territory of the municipality."
The deliberations of Congress will reveal that there is a legitimate reason
why the land area of the proposed City of Makati was not defined by
metes and bounds, with technical descriptions. At the time of the
consideration of R.A. No. 7854, the territorial dispute between the
municipalities of Makati and Taguig over Fort Bonifacio was under court
litigation. Out of a becoming sense of respect to co-equal department of
government, legislators felt that the dispute should be left to the courts to
decide. They did not want to foreclose the dispute by making a legislative
finding of fact which could decide the issue. This would have ensued if
they defined the land area of the proposed city by its exact metes and
bounds, with technical descriptions. 3 We take judicial notice of the fact
that Congress has also refrained from using the metes and bounds
description of land areas of other local government units with unsettled
boundary disputes. 4
We hold that the existence of a boundary dispute does not per se present
an insurmountable difficulty which will prevent Congress from defining
with reasonable certitude the territorial jurisdiction of a local government
unit. In the cases at bench, Congress maintained the existing boundaries

of the proposed City of Makati but as an act of fairness, made them

subject to the ultimate resolution by the courts. Considering these
peculiar circumstances, we are not prepared to hold that section 2 of R.A.
No. 7854 is unconstitutional. We sustain the submission of the Solicitor
General in this regard, viz.:
Going now to Sections 7 and 450 of the Local Government Code, it is
beyond cavil that the requirement stated therein, viz.: "the territorial
jurisdiction of newly created or converted cities should be described by
meted and bounds, with technical descriptions" was made in order to
provide a means by which the area of said cities may be reasonably
ascertained. In other words, the requirement on metes and bounds was
meant merely as tool in the establishment of local government units. It is
not an end in itself. Ergo, so long as the territorial jurisdiction of a city
may be reasonably ascertained, i.e., by referring to common boundaries
with neighboring municipalities, as in this case, then, it may be concluded
that the legislative intent behind the law has been sufficiently served.
Certainly, Congress did not intends that laws creating new cities must
contain therein detailed technical descriptions similar to those appearing
in Torrens titles, as petitioners seem to imply. To require such description
in the law as a condition sine qua non for its validity would be to defeat
the very purpose which the Local Government Code to seeks to serve.
The manifest intent of the Code is to empower local government units
and to give them their rightful due. It seeks to make local governments
more responsive to the needs of their constituents while at the same time
serving as a vital cog in national development. To invalidate R.A. No.
7854 on the mere ground that no cadastral type of description was used
in the law would serve the letter but defeat the spirit of the Code. It then
becomes a case of the master serving the slave, instead of the other way
around. This could not be the intendment of the law.
Too well settled is the rule that laws must be enforced when ascertained,
although it may not be consistent with the strict letter of the statute.
Courts will not follow the letter of the statute when to do so would depart
from the true intent of the legislature or would otherwise yield conclusions
inconsistent with the general purpose of the act. (Torres v. Limjap, 56
Phil., 141; Taada v. Cuenco, 103 Phil. 1051; Hidalgo v. Hidalgo, 33
SCRA 1105). Legislation is an active instrument of government, which,
for purposes of interpretation, means that laws have ends to achieve, and
statutes should be so construed as not to defeat but to carry out such
ends and purposes (Bocolbo v. Estanislao, 72 SCRA 520). The same
rule must indubitably apply to the case at bar.
II
Petitioners in G.R. No. 118577 also assail the constitutionality of section
51, Article X of R.A. No. 7854. Section 51 states:
Sec. 51. Officials of the City of Makati. The represent elective officials
of the Municipality of Makati shall continue as the officials of the City of
Makati and shall exercise their powers and functions until such time that
a new election is held and the duly elected officials shall have already
qualified and assume their offices: Provided, The new city will acquire a
new corporate existence. The appointive officials and employees of the
City shall likewise continues exercising their functions and duties and
they shall be automatically absorbed by the city government of the City of
Makati.
They contend that this section collides with section 8, Article X and
section 7, Article VI of the Constitution which provide:
Sec. 8. The term of office of elective local officials, except barangay
officials, which shall be determined by law, shall be three years and no
such official shall serve for more than three consecutive terms. Voluntary
renunciation of the office for any length of time shall not be considered as
an interruption in the continuity of his service for the full term for which he
was elected.

xxx xxx xxx

Sec. 7. The Members of the House of Representatives shall be elected
for a term of three years which shall begin, unless otherwise provided by
law, at noon on the thirtieth day of June next following their election.
No Member of the House of Representatives shall serve for more than
three consecutive terms. Voluntary renunciation of the office for any
length of time shall not be considered as an interruption in the continuity
of his service for the full term for which he was elected.
Petitioners stress that under these provisions, elective local officials,
including Members of the House of Representative, have a term of
three (3) years and are prohibited from serving for more than
three (3) consecutive terms. They argue that by providing that the new
city shall acquire a new corporate existence, section 51 of R.A. No. 7854
restarts the term of the present municipal elective officials of Makati and
disregards the terms previously served by them. In particular, petitioners
point that section 51 favors the incumbent Makati Mayor, respondent
Jejomar Binay, who has already served for two (2) consecutive terms.
They further argue that should Mayor Binay decide to run and eventually
win as city mayor in the coming elections, he can still run for the same
position in 1998 and seek another three-year consecutive term since his
previous three-year consecutive term as municipal mayor would not be
counted. Thus, petitioners conclude that said section 51 has been
conveniently crafted to suit the political ambitions of respondent Mayor
Binay.
We cannot entertain this challenge to the constitutionality of section 51.
The requirements before a litigant can challenge the constitutionality of a
law are well delineated. They are: 1) there must be an actual case or
controversy; (2) the question of constitutionality must be raised by the
proper party; (3) the constitutional question must be raised at the earliest
possible opportunity; and (4) the decision on the constitutional question
must be necessary to the determination of the case itself. 5
Petitioners have far from complied with these requirements. The petition
is premised on the occurrence of many contingent events, i.e., that Mayor
Binay will run again in this coming mayoralty elections; that he would be
re-elected in said elections; and that he would seek re-election for the
same position in the 1998 elections. Considering that these contingencies
may or may not happen, petitioners merely pose a hypothetical issue
which has yet to ripen to an actual case or controversy. Petitioners who
are residents of Taguig (except Mariano) are not also the proper parties
to raise this abstract issue. Worse, they hoist this futuristic issue in a
petition for declaratory relief over which this Court has no jurisdiction.

These issues have been laid to rest in the recent case of Tobias
v. Abalos. 8 In said case, we ruled that reapportionment of legislative
districts may be made through a special law, such as in the charter of a
new city. The Constitution 9 clearly provides that Congress shall be
composed of not more than two hundred fifty (250) members, unless
otherwise fixed by law. As thus worded, the Constitution did not preclude
Congress from increasing its membership by passing a law, other than a
general reapportionment of the law. This is its exactly what was done by
Congress in enacting R.A. No. 7854 and providing for an increase in
Makati's legislative district. Moreover, to hold that reapportionment can
only be made through a general apportionment law, with a review of all
the legislative districts allotted to each local government unit nationwide,
would create an inequitable situation where a new city or province
created by Congress will be denied legislative representation for an
indeterminate period of time. 10 The intolerable situations will deprive the
people of a new city or province a particle of their
sovereignty. 11 Sovereignty cannot admit of any kind of subtraction. It is
indivisible. It must be forever whole or it is not sovereignty.
Petitioners cannot insist that the addition of another legislative district in
Makati is not in accord with section 5(3), Article VI 12 of the Constitution
for as of the latest survey (1990 census), the population of Makati stands
at only four hundred fifty thousand (450,000). 13 Said section
provides, inter alia, that a city with a population of at least two hundred
fifty thousand (250,000) shall have at least one representative. Even
granting that the population of Makati as of the 1990 census stood at four
hundred fifty thousand (450,000), its legislative district may still be
increased since it has met the minimum population requirement of two
hundred fifty thousand (250,000). In fact, section 3 of the Ordinance
appended to the Constitution provides that a city whose population
has increased to more than two hundred fifty thousand (250,000) shall be
entitled to at least one congressional representative. 14
Finally, we do not find merit in petitioners' contention that the creation of
an additional legislative district in Makati should have been expressly
stated in the title of the bill. In the same case of Tobias v. Abalos, op cit.,
we reiterated the policy of the Court favoring a liberal construction of the
"one title-one subject" rule so as not to impede legislation. To be sure,
with Constitution does not command that the title of a law should exactly
mirror, fully index, or completely catalogue all its details. Hence, we ruled
that "it should be sufficient compliance if the title expresses the general
subject and all the provisions are germane to such general subject."
WHEREFORE, the petitions are hereby DISMISSED for lack of merit No
costs.
SO ORDERED.

III
Finally, petitioners in the two (2) cases at bench assail the
constitutionality of section 52, Article X of R.A. No. 7854. Section 52 of
the Charter provides:

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

Sec. 52. Legislative Districts. Upon its conversion into a highlyurbanized city, Makati shall thereafter have at least two (2) legislative
districts that shall initially correspond to the two (2) existing districts
created under Section 3(a) of Republic Act. No. 7166 as implemented by
the Commission on Elections to commence at the next national elections
to be held after the effectivity of this Act. Henceforth, barangays
Magallanes, Dasmarias and Forbes shall be with the first district, in lieu
of Barangay Guadalupe-Viejo which shall form part of the second district.
(emphasis supplied)
They contend. that the addition of another legislative district in Makati is
unconstitutional for: (1) reapportionment 6cannot made by a special law,
(2) the addition of a legislative district is not expressed in the title of the
bill 7 and (3) Makati's population, as per the 1990 census, stands at only
four hundred fifty thousand (450,000).

G.R. No. 146319

October 26, 2001

BENJAMIN E. CAWALING, JR., petitioner,

vs.
THE COMMISSION ON ELECTIONS, and Rep. Francis Joseph G.
Escudero, respondents.
x---------------------------------------------------------x
G.R. No. 146342

October 26, 2001

BENJAMIN E. CAWALING, JR., petitioner,

vs.
THE EXECUTIVE SECRETARY TO THE PRESIDENT OF THE

REPUBLIC OF THE PHILIPPINES, SECRETARY OF THE INTERIOR

AND LOCAL GOVERNMENT, SECRETARY OF THE DEPARTMENT OF
BUDGET AND MANAGEMENT, SOLICITOR GENERAL, PROVINCE OF
SORSOGON, MUNICIPALITY OF SORSOGON, MUNICIPALITY OF
BACON, respondents.
SANDOVAL-GUTIERREZ, J.:
Before us are two (2) separate petitions challenging the constitutionality
of Republic Act No. 8806 which created the City of Sorsogon and the
validity of the plebiscite conducted pursuant thereto.
On August 16, 2000, former President Joseph E. Estrada signed into law
R.A. No. 8806, an "Act Creating The City Of Sorsogon By Merging The
Municipalities Of Bacon And Sorsogon In The Province Of Sorsogon, And
Appropriating Funds Therefor."1
Pursuant to Section 10, Article X of the Constitution,2 the Commission on
Elections (COMELEC), on December 16, 2000, conducted a plebiscite in
the Municipalities of Bacon and Sorsogon and submitted the matter for
ratification.
On December 17, 2000, the Plebiscite City Board of Canvassers (PCBC)
proclaimed3 the creation of the City of Sorsogon as having been ratified
and approved by the majority of the votes cast in the plebiscite.4
Invoking his right as a resident and taxpayer of the former Municipality of
Sorsogon, Benjamin E. Cawaling, Jr. filed on January 2, 2001 the present
petition for certiorari (G.R. No. 146319) seeking the annulment of the
plebiscite on the following grounds:
A. The December 16, 2000 plebiscite was conducted beyond the required
120-day period from the approval of R.A. 8806, in violation of Section 54
thereof; and
B. Respondent COMELEC failed to observe the legal requirement of
twenty (20) day extensive information campaign in the Municipalities of
Bacon and Sorsogon before conducting the plebiscite.
Two days after filing the said action, or on January 4, 2001, petitioner
instituted another petition (G.R. No. 146342), this time for prohibition
seeking to enjoin the further implementation of R.A. No. 8806 for being
unconstitutional, contending, in essence, that:
1. The creation of Sorsogon City by merging two municipalities violates
Section 450(a) of the Local Government Code of 1991 (in relation to
Section 10, Article X of the Constitution) which requires that only "a
municipality or a cluster of barangays may be converted into a
component city"; and

becoming courtesy for each other's acts.7 The theory is that every law,
being the joint act of the Legislature and the Executive, has passed
careful scrutiny to ensure that it is in accord with the fundamental
law.8 This Court, however, may declare a law, or portions thereof,
unconstitutional where a petitioner has shown a clear and unequivocal
breach of the Constitution, not merely a doubtful or argumentative
one.9 In other words the grounds for nullity must be beyond reasonable
doubt,10 for to doubt is to sustain.11
Petitioner initially reject R.A. No. 8806 because it violates Section 10,
Article X of the Constitution which provides,inter alia:
"SECTION 10. No province, city, municipality, or barangay may be
created, divided, merged, abolished, or its boundary substantially altered,
except in accordance with the criteria established in the local government
code and subject to approval by a majority of the votes cast in a
plebiscite in the political units directly affected." (Emphasis ours)
The criteria for the creation of a city is prescribed in Section 450 of the
Local Government Code of 1991 (the Code), thus:
"SECTION 450. Requisites for Creation. (a) A municipality or a cluster
of barangays may be converted into a component city if it has an average
annual income, as certified by the Department of Finance, of at least
Twenty million (P20,000,000.00) for the last two (2) consecutive years
based on 1991 constant prices, and if it has either of the following
requisites:
(i) a contiguous territory of at least one hundred (100) square kilometers,
as certified by the Lands Management Bureau; or
(ii) a population of not less than one hundred fifty thousand (150,000)
inhabitants, as certified by the National Statistics Office:
Provided, That, the creation thereof shall not reduce the land area,
population, and income of the original unit or units at the time of said
creation to less than the minimum requirements prescribed herein.
(b) The territorial jurisdiction of a newly-created city shall be properly
identified by metes and bounds. The requirement on land area shall not
apply where the city proposed to be created is composed of one (1) or
more islands. The territory need not be contiguous if it comprises two (2)
or more islands.
(c) The average annual income shall include the income accruing to the
general fund, exclusive of specific funds, transfers, and non-recurring
income." (Emphasis ours)

2. R.A. No. 8806 contains two (2) subjects, namely, the (a) creation of the
City of Sorsogon and the (b) abolition of the Municipalities of Bacon and
Sorsogon, thereby violating the "one subject-one bill" rule prescribed by
Section 26(1), Article VI of the Constitution.

Petitioner is not concerned whether the creation of Sorsogon City through

R.A. No. 8806 complied with the criteria set by the Code as to income,
population and land area. What he is assailing is its mode of creation. He
contends that under Section 450(a) of the Code, a component city may
be created only by converting "a municipality or a cluster of barangays,"
not by merging two municipalities, as what R.A. No. 8806 has done.

Hence, the present petitions which were later consolidated.5

This contention is devoid of merit.

Significantly, during the pendency of these cases, specifically during the

May 14, 2001 elections, the newly-created Sorsogon City had the first
election of its officials. Since then, the City Government of Sorsogon has
been regularly discharging its corporate and political powers pursuant to
its charter, R.A. No. 8806.

Petitioner's constricted reading of Section 450(a) of the Code is

erroneous. The phrase "A municipality or a cluster of barangays may
be converted into a component city" is not a criterion but simply one of
the modes by which a city may be created. Section 10, Article X of the
Constitution, quoted earlier and which petitioner cited in support of his
posture, allows the merger of local government units to create a province
city, municipality or barangay in accordance with the criteria established
by the Code. Thus, Section 8 of the Code distinctly provides:

We shall first delve on petitioner's constitutional challenge against R.A.

No. 8806 in G.R No. 146342.
Every statute has in its favor the presumption of constitutionality.6 This
presumption is rooted in the doctrine of separation of powers which
enjoins upon the three coordinate departments of the Government a

"SECTION 8. Division and Merger. Division and merger of existing

local government units shall comply with the same requirements herein

prescribed for their creation: Provided, however, That such division shall
not reduce the income, population, or land area of the local government
unit or units concerned to less than the minimum requirements prescribed
in this Code: Provided, further, That the income classification of the
original local government unit or units shall not fall below its current
income classification prior to such division. . . . ." (Emphasis ours)
Verily, the creation of an entirely new local government unit through
a division or a merger of existing local government units
is recognized under the Constitution, provided that such merger or
division shall comply with the requirements prescribed by the Code.
Petitioner further submits that, in any case, there is no "compelling"
reason for merging the Municipalities of Bacon and Sorsogon in order to
create the City of Sorsogon considering that the Municipality of Sorsogon
alone already qualifies to be upgraded to a component city. This
argument goes into the wisdom of R.A. No. 8806, a matter which we are
not competent to rule. In Angara v. Electoral Commission,12 this Court,
through Justice Jose P. Laurel, made it clear that "the judiciary does not
pass upon questions of wisdom, justice or expediency of legislation." In
the exercise of judicial power, we are allowed only "to settle actual
controversies involving rights which are legally demandable and
enforceable,"13 and "may not annul an act of the political departments
simply because we feel it is unwise or impractical. "14
Next, petitioner assails R.A. No. 8806 since it contravenes the "one
subject-one bill" rule enunciated in Section 26 (1), Article VI of the
Constitution, to wit:
"SECTION 26 (1). Every bill passed by the Congress shall embrace
only one subject which shall be expressed in the title thereof." (Emphasis
ours)
Petitioner contends that R.A. No. 8806 actually embraces two principal
subjects which are: (1) the creation of the City of Sorsogon, and (2)
the abolition of the Municipalities of Bacon and Sorsogon. While the title
of the Act sufficiently informs the public about the creation of Sorsogon
City, petitioner claims that no such information has been provided on the
abolition of the Municipalities of Bacon and Sorsogon.
The argument is far from persuasive. Contrary to petitioner's assertion,
there is only one subject embraced in the title of the law, that is, the
creation of the City of Sorsogon. The abolition/cessation of the corporate
existence of the Municipalities of Bacon and Sorsogon due to their
merger is not a subject separate and distinct from the creation of
Sorsogon City. Such abolition/cessation was but the logical, natural and
inevitable consequence of the merger. Otherwise put, it is the necessary
means by which the City of Sorsogon was created. Hence, the title of the
law, "An Act Creating the City of Sorsogon by Merging the Municipalities
of Bacon and Sorsogon in the Province of Sorsogon, and Appropriating
Funds Therefor," cannot be said to exclude the incidental effect of
abolishing the two municipalities, nor can it be considered to have
deprived the public of fair information on this consequence.
It is well-settled that the "one title-one subject" rule does not require the
Congress to employ in the title of the enactment language of such
precision as to mirror, fully index or catalogue all the contents and the
minute details therein.15 The rule is sufficiently complied with if the title is
comprehensive enough as to include the general object which the statute
seeks to effect,16 and where, as here, the persons interested are
informed of the nature, scope and consequences of the proposed law
and its operation.17 Moreover, this Court has invariably adopted a liberal
rather than technical construction of the rule "so as not to cripple or
impede legislation."18
Consequently, we hold that petitioner has failed to present clear and
convincing proof to defeat the presumption of constitutionality of R.A. No.
8806.

We now turn to G.R. No. 146319 wherein petitioner assails the validity of
the plebiscite conducted by the COMELEC for the ratification of the
creation of Sorsogon City.
Petitioner asserts that the plebiscite required by R.A. No. 8806 should be
conducted within 120 days from the "approval" of said Act per express
provision of its Section 54, viz:
"SECTION 54. Plebiscite. The City of Sorsogon shall acquire
corporate existence upon the ratification of its creation by a majority of
the votes cast by the qualified voters in a plebiscite to be conducted in
the present municipalities of Bacon and Sorsogon within one hundred
twenty (120) days from the approval of this Act. x x x ." (Emphasis ours)
The Act was approved on August 16, 2000 by former President Joseph
E. Estrada. Thus, petitioner claims, the December 16, 2000 plebiscite
was conducted one (1) day late from the expiration of the 120-day period
after theapproval of the Act. This 120-day period having expired without a
plebiscite being conducted, the Act itself expired and could no longer be
ratified and approved in the plebiscite held on December 16, 2000.
In its comment, the COMELEC asserts that it scheduled the plebiscite on
December 16, 2000 based on the date of the effectivity of the Act.
Section 65 of the Act states:
"SECTION 65. Effectivity. This Act shall take effect upon its publication
in at least two (2) newspapers of general and local circulation."
The law was first published in the August 25, 2000 issue of TODAY a
newspaper of general circulation. Then on September 01, 2000, it was
published in a newspaper of local circulation in the Province of Sorsogon.
Thus, the publication of the law was completed on September 1, 2000,
which date, according to the COMELEC, should be the reckoning point in
determining the 120-day period within which to conduct the plebiscite, not
from the date of its approval (August 16, 2000) when the law had not yet
been published. The COMELEC argues that since publication is
indispensable for the effectivity of a law, citing the landmark case
of Taada vs. Tuvera,19 it could only schedule the plebiscite after the Act
took effect. Thus, the COMELEC concludes, the December 16, 2000
plebiscite was well within the 120-day period from the effectivity of the
law on September 1, 2000.
The COMELEC is correct.
In addition, Section 10 of the Code provides:
"SECTION 10. Plebiscite Requirement. No creation, division, merger,
abolition, or substantial alteration of boundaries of local government units
shall take effect unless approved by a majority of the votes cast in a
plebiscite called for the purpose in the political unit or units directly
affected. Such plebiscite shall be conducted by the Commission on
Elections within one hundred twenty (120) days from the date of the
effectivity of the law or ordinance affecting such action, unless said law or
ordinance fixes another date." (Emphasis ours)
Quite plainly, the last sentence of Section 10 mandates that the plebiscite
shall be conducted within 120 days from the date of the effectivity of the
law, not from its approval. While the same provision allows a law or
ordinance to fix "another date" for conducting a plebiscite, still such date
must be reckoned from the date of the effectivity of the law.
Consequently, the word "approval" in Section 54 of R.A. No. 8806, which
should be read together with Section 65 (effectivity of the Act) thereof,
could only mean "effectivity" as used and contemplated in Section 10 of
the Code. This construction is in accord with the fundamental rule that all
provisions of the laws relating to the same subject should be read
together and reconciled to avoid inconsistency or repugnancy to
established jurisprudence. As we stated in Taada:

"ARTICLE 2. Laws shall take effect after fifteen days following the
completion of their publication in the Official Gazette, unless it is
otherwise provided. This Code shall take effect one year after such
publication.

publication in the Manila Standard, a newspaper of general

circulation.1 In substance, the said law created an additional legislative
district for the Province of Camarines Sur by reconfiguring the existing
first and second legislative districts of the province.

After a careful study of this provision and of the arguments of the parties,
both on the original petition and on the instant motion, we have come to
the conclusion, and so hold, that the clause 'unless it is otherwise
provided' refers to the date of effectivity and not to the requirement of
publication itself, which cannot in any event be omitted. This clause does
not mean that the legislature may make the law effective immediately
upon approval, or on any other date, without its previous publication."
(Emphasis supplied)

Prior to Republic Act No. 9716, the Province of Camarines Sur was
estimated to have a population of 1,693,821,2distributed among four (4)
legislative districts in this wise:
District

Municipalities/Cities

1st District

Del Gallego
Ragay
Lupi
Sipocot
Cabusao

To give Section 54 a literal and strict interpretation would in effect make

the Act effective even before its publication, which scenario is precisely
abhorred in Taada.
Lastly, petitioner alleges that the COMELEC failed to conduct an
extensive information campaign on the proposed Sorsogon cityhood 20
days prior to the scheduled plebiscite as required by Article 11 (b.4.ii),
Rule II of the Rules and Regulations Implementing the Code. However,
no proof whatsoever was presented by petitioner to substantiate his
allegation. Consequently, we sustain the presumption20 that the
COMELEC regularly performed or complied with its duty under the law in
conducting the plebiscite.

Libmanan
417,304
Minalabac
Pamplona
Pasacao
San Fernando

2nd District Gainza

Milaor
Naga
Pili
Ocampo

Canaman
Camaligan
Magarao
Bombon
Calabanga

474,899

3rd District

Caramoan
Garchitorena
Goa
Lagonoy
Presentacion

Sangay
San Jose
Tigaon
Tinamba
Siruma

372,548

4th District

Iriga
Baao
Balatan
Bato

Buhi
Bula
Nabua

429,070

WHEREFORE, the instant petitions are DISMISSED for lack of merit.

Costs against petitioner.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila

Population

EN BANC
G.R. No. 189793

April 7, 2010

SENATOR BENIGNO SIMEON C. AQUINO III and MAYOR JESSE

ROBREDO, Petitioners,
vs.
COMMISSION ON ELECTIONS represented by its Chairman JOSE
A.R. MELO and its Commissioners, RENE V. SARMIENTO,
NICODEMO T. FERRER, LUCENITO N. TAGLE, ARMANDO
VELASCO, ELIAS R. YUSOPH AND GREGORIO
LARRAZABAL, Respondents.
DECISION

Following the enactment of Republic Act No. 9716, the first and second
districts of Camarines Sur were reconfigured in order to create an
additional legislative district for the province. Hence, the first district
municipalities of Libmanan, Minalabac, Pamplona, Pasacao, and San
Fernando were combined with the second district municipalities of Milaor
and Gainza to form a new second legislative district. The following
table3 illustrates the reapportionment made by Republic Act No. 9716:
District

Municipalities/Cities

Population

1st District

Del Gallego
Ragay
Lupi
Sipocot
Cabusao

176,383

2nd District

Libmanan
Minalabac
Pamplona
Pasacao

San
Fernando
Gainza
Milaor

276,777

3rd District (formerly

2nd District)

Naga
Pili
Ocampo
Canaman

Camaligan
Magarao
Bombon
Calabanga

439,043

PEREZ, J.:
This case comes before this Court by way of a Petition for Certiorari and
Prohibition under Rule 65 of the Rules of Court. In this original action,
petitioners Senator Benigno Simeon C. Aquino III and Mayor Jesse
Robredo, as public officers, taxpayers and citizens, seek the nullification
as unconstitutional of Republic Act No. 9716, entitled "An Act
Reapportioning the Composition of the First (1st) and Second (2nd)
Legislative Districts in the Province of Camarines Sur and Thereby
Creating a New Legislative District From Such Reapportionment."
Petitioners consequently pray that the respondent Commission on
Elections be restrained from making any issuances and from taking any
steps relative to the implementation of Republic Act No. 9716.
Republic Act No. 9716 originated from House Bill No. 4264, and was
signed into law by President Gloria Macapagal Arroyo on 12 October
2009. It took effect on 31 October 2009, or fifteen (15) days following its

4th District (formerly

3rd District)

Caramoan
Garchitorena
Goa
Lagonoy
Presentacion

Sangay
San Jose
Tigaon
Tinamba
Siruma

372,548

5th District (formerly

4th District)

Iriga
Baao
Balatan
Bato

Buhi
Bula
Nabua

429,070

Republic Act No. 9716 is a well-milled legislation. The factual recitals by

both parties of the origins of the bill that became the law show that, from
the filing of House Bill No. 4264 until its approval by the Senate on a vote
of thirteen (13) in favor and two (2) against, the process progressed step
by step, marked by public hearings on the sentiments and position of the
local officials of Camarines Sur on the creation of a new congressional
district, as well as argumentation and debate on the issue, now before us,
concerning the stand of the oppositors of the bill that a population of at
least 250,000 is required by the Constitution for such new district.4
Petitioner Aquino III was one of two senators who voted against the
approval of the Bill by the Senate. His co-petitioner, Robredo, is the
Mayor of Naga City, which was a part of the former second district from
which the municipalities of Gainza and Milaor were taken for inclusion in
the new second district. No other local executive joined the two; neither
did the representatives of the former third and fourth districts of the
province.
Petitioners contend that the reapportionment introduced by Republic Act
No. 9716, runs afoul of the explicit constitutional standard that requires a
minimum population of two hundred fifty thousand (250,000) for the
creation of a legislative district.5 The petitioners claim that the
reconfiguration by Republic Act No. 9716 of the first and second districts
of Camarines Sur is unconstitutional, because the proposed first district
will end up with a population of less than 250,000 or only 176,383.
Petitioners rely on Section 5(3), Article VI of the 1987 Constitution as
basis for the cited 250,000 minimum population standard.6 The provision
reads:
Article VI
Section 5. (1) x x x x
(2) x x x x
(3) Each legislative district shall comprise, as far as practicable,
contiguous, compact, and adjacent territory.Each city with a population of
at least two hundred fifty thousand, or each province, shall have at least
one representative.
(4) x x x x (Emphasis supplied).
The petitioners posit that the 250,000 figure appearing in the above-cited
provision is the minimum population requirement for the creation of a
legislative district.7 The petitioners theorize that, save in the case of a
newly created province, each legislative district created by Congress
must be supported by a minimum population of at least 250,000 in order
to be valid.8 Under this view, existing legislative districts may be
reapportioned and severed to form new districts, provided each resulting
district will represent a population of at least 250,000. On the other hand,
if the reapportionment would result in the creation of a legislative seat
representing a populace of less than 250,000 inhabitants, the
reapportionment must be stricken down as invalid for non-compliance
with the minimum population requirement.

In support of their theory, the petitioners point to what they claim is the
intent of the framers of the 1987 Constitution to adopt a population
minimum of 250,000 in the creation of additional legislative seats.9 The
petitioners argue that when the Constitutional Commission fixed the
original number of district seats in the House of Representatives to two
hundred (200), they took into account the projected national population of
fifty five million (55,000,000) for the year 1986.10 According to the
petitioners, 55 million people represented by 200 district representatives
translates to roughly 250,000 people for every one (1)
representative.11 Thus, the 250,000 population requirement found in
Section 5(3), Article VI of the 1987 Constitution is actually based on the
population constant used by the Constitutional Commission in distributing
the initial 200 legislative seats.
Thus did the petitioners claim that in reapportioning legislative districts
independently from the creation of a province, Congress is bound to
observe a 250,000 population threshold, in the same manner that the
Constitutional Commission did in the original apportionment.
Verbatim, the submission is that:
1. Republic Act 9716 is unconstitutional because the newly apportioned
first district of Camarines Sur failed to meet the population requirement
for the creation of the legislative district as explicitly provided in Article VI,
Section 5, Paragraphs (1) and (3) of the Constitution and Section 3 of the
Ordinance appended thereto; and
2. Republic Act 9716 violates the principle of proportional representation
as provided in Article VI, Section 5 paragraphs (1), (3) and (4) of the
Constitution.12
The provision subject of this case states:
Article VI
Section 5. (1) The House of Representatives shall be composed of not
more than two hundred and fifty members, unless otherwise fixed by law,
who shall be elected from legislative districts apportioned among the
provinces, cities and the Metropolitan Manila area in accordance with the
number of their respective inhabitants, and on the basis of a uniform and
progressive ratio, and those who, as provided by law, shall be elected
through a party-list system of registered national, regional and sectoral
parties or organizations.
(2) x x x x
(3) Each legislative district shall comprise, as far as practicable,
contiguous, compact, and adjacent territory. Each city with a population
of at least two hundred fifty thousand, or each province, shall have at
least one representative.
(4) Within three years following the return of every census, the Congress
shall make a reapportionment of legislative districts based on the
standards provided in this section.
On the other hand, the respondents, through the Office of the Solicitor
General, seek the dismissal of the present petition based on procedural
and substantive grounds.
On procedural matters, the respondents argue that the petitioners are
guilty of two (2) fatal technical defects: first, petitioners committed an
error in choosing to assail the constitutionality of Republic Act No. 9716
via the remedy of Certiorari and Prohibition under Rule 65 of the Rules of
Court; and second, the petitioners have no locus standi to question the
constitutionality of Republic Act No. 9716.
On substantive matters, the respondents call attention to an apparent
distinction between cities and provinces drawn by Section 5(3), Article VI

of the 1987 Constitution. The respondents concede the existence of a

250,000 population condition, but argue that a plain and simple reading of
the questioned provision will show that the same has no application with
respect to the creation of legislative districts in provinces.13 Rather, the
250,000 minimum population is only a requirement for the creation of a
legislative district in a city.
In sum, the respondents deny the existence of a fixed population
requirement for the reapportionment of districts in provinces. Therefore,
Republic Act No. 9716, which only creates an additional legislative district
within the province of Camarines Sur, should be sustained as a perfectly
valid reapportionment law.
We first pass upon the threshold issues.
The respondents assert that by choosing to avail themselves of the
remedies of Certiorari and Prohibition, the petitioners have committed a
fatal procedural lapse. The respondents cite the following reasons:
1. The instant petition is bereft of any allegation that the respondents had
acted without or in excess of jurisdiction, or with grave abuse of
discretion.1avvphi1
2. The remedy of Certiorari and Prohibition must be directed against a
tribunal, board, officer or person, whether exercising judicial, quasijudicial, or ministerial functions. Respondents maintain that in
implementing Republic Act No. 9716, they were not acting as a judicial or
quasi-judicial body, nor were they engaging in the performance of a
ministerial act.
3. The petitioners could have availed themselves of another plain, speedy
and adequate remedy in the ordinary course of law. Considering that the
main thrust of the instant petition is the declaration of unconstitutionality
of Republic Act No. 9716, the same could have been ventilated through a
petition for declaratory relief, over which the Supreme Court has only
appellate, not original jurisdiction.
The respondents likewise allege that the petitioners had failed to show
that they had sustained, or is in danger of sustaining any substantial
injury as a result of the implementation of Republic Act No. 9716. The
respondents, therefore, conclude that the petitioners lack the required
legal standing to question the constitutionality of Republic Act No. 9716.
This Court has paved the way away from procedural debates when
confronted with issues that, by reason of constitutional importance, need
a direct focus of the arguments on their content and substance.
The Supreme Court has, on more than one occasion, tempered the
application of procedural rules,14 as well as relaxed the requirement of
locus standi whenever confronted with an important issue of overreaching
significance to society.15
Hence, in Del Mar v. Philippine Amusement and Gaming Corporation
(PAGCOR)16 and Jaworski v. PAGCOR,17this Court sanctioned
momentary deviation from the principle of the hierarchy of courts, and
took original cognizance of cases raising issues of paramount public
importance. The Jaworski case ratiocinates:
Granting arguendo that the present action cannot be properly treated as
a petition for prohibition, the transcendental importance of the issues
involved in this case warrants that we set aside the technical defects and
take primary jurisdiction over the petition at bar. One cannot deny that the
issues raised herein have potentially pervasive influence on the social
and moral well being of this nation, specially the youth; hence, their
proper and just determination is an imperative need. This is in
accordance with the well-entrenched principle that rules of procedure are
not inflexible tools designed to hinder or delay, but to facilitate and
promote the administration of justice. Their strict and rigid application,

which would result in technicalities that tend to frustrate, rather than

promote substantial justice, must always be eschewed. (Emphasis
supplied)
Anent the locus standi requirement, this Court has already uniformly ruled
in Kilosbayan v. Guingona,18 Tatad v. Executive Secretary,19 Chavez v.
Public Estates Authority20 and Bagong Alyansang Makabayan v.
Zamora,21 just to name a few, that absence of direct injury on the part of
the party seeking judicial review may be excused when the latter is able
to craft an issue of transcendental importance. In Lim v. Executive
Secretary,22 this Court held that in cases of transcendental importance,
the cases must be settled promptly and definitely, and so, the standing
requirements may be relaxed. This liberal stance has been echoed in the
more recent decision on Chavez v. Gonzales.23
Given the weight of the issue raised in the instant petition, the foregoing
principles must apply. The beaten path must be taken. We go directly to
the determination of whether or not a population of 250,000 is an
indispensable constitutional requirement for the creation of a new
legislative district in a province.
We deny the petition.
We start with the basics. Any law duly enacted by Congress carries with it
the presumption of constitutionality.24Before a law may be declared
unconstitutional by this Court, there must be a clear showing that a
specific provision of the fundamental law has been violated or
transgressed. When there is neither a violation of a specific provision of
the Constitution nor any proof showing that there is such a violation, the
presumption of constitutionality will prevail and the law must be upheld.
To doubt is to sustain.25
There is no specific provision in the Constitution that fixes a 250,000
minimum population that must compose a legislative district.
As already mentioned, the petitioners rely on the second sentence of
Section 5(3), Article VI of the 1987 Constitution, coupled with what they
perceive to be the intent of the framers of the Constitution to adopt a
minimum population of 250,000 for each legislative district.
The second sentence of Section 5(3), Article VI of the Constitution,
succinctly provides: "Each city with a population of at least two hundred
fifty thousand, or each province, shall have at least one representative."
The provision draws a plain and clear distinction between the entitlement
of a city to a district on one hand, and the entitlement of a province to a
district on the other. For while a province is entitled to at least a
representative, with nothing mentioned about population, a city must first
meet a population minimum of 250,000 in order to be similarly entitled.
The use by the subject provision of a comma to separate the phrase
"each city with a population of at least two hundred fifty thousand" from
the phrase "or each province" point to no other conclusion than that the
250,000 minimum population is only required for a city, but not for a
province. 26
Plainly read, Section 5(3) of the Constitution requires a 250,000 minimum
population only for a city to be entitled to a representative, but not so for a
province.
The 250,000 minimum population requirement for legislative districts in
cities was, in turn, the subject of interpretation by this Court in Mariano,
Jr. v. COMELEC.27
In Mariano, the issue presented was the constitutionality of Republic Act
No. 7854, which was the law that converted the Municipality of Makati
into a Highly Urbanized City. As it happened, Republic Act No. 7854
created an additional legislative district for Makati, which at that time was

a lone district. The petitioners in that case argued that the creation of an
additional district would violate Section 5(3), Article VI of the Constitution,
because the resulting districts would be supported by a population of less
than 250,000, considering that Makati had a total population of only
450,000. The Supreme Court sustained the constitutionality of the law
and the validity of the newly created district, explaining the operation of
the Constitutional phrase "each city with a population of at least two
hundred fifty thousand," to wit:
Petitioners cannot insist that the addition of another legislative district in
Makati is not in accord with section 5(3), Article VI of the Constitution for
as of the latest survey (1990 census), the population of Makati stands at
only four hundred fifty thousand (450,000). Said section provides, inter
alia, that a city with a population of at least two hundred fifty
thousand (250,000) shall have at least one representative. Even granting
that the population of Makati as of the 1990 census stood at four hundred
fifty thousand (450,000), its legislative district may still be increased since
it has met the minimum population requirement of two hundred fifty
thousand (250,000). In fact, Section 3 of the Ordinance appended to the
Constitution provides that a city whose population has increased to more
than two hundred fifty thousand (250,000) shall be entitled to at least one
congressional representative.28(Emphasis supplied)
The Mariano case limited the application of the 250,000 minimum
population requirement for cities only to its initial legislative district. In
other words, while Section 5(3), Article VI of the Constitution requires a
city to have a minimum population of 250,000 to be entitled to a
representative, it does not have to increase its population by another
250,000 to be entitled to an additional district.
There is no reason why the Mariano case, which involves the creation of
an additional district within a city, should not be applied to additional
districts in provinces. Indeed, if an additional legislative district created
within a city is not required to represent a population of at least 250,000
in order to be valid, neither should such be needed for an additional
district in a province, considering moreover that a province is entitled to
an initial seat by the mere fact of its creation and regardless of its
population.
Apropos for discussion is the provision of the Local Government Code on
the creation of a province which, by virtue of and upon creation, is entitled
to at least a legislative district. Thus, Section 461 of the Local
Government Code states:
Requisites for Creation. (a) A province may be created if it has an
average annual income, as certified by the Department of Finance, of not
less than Twenty million pesos (P20,000,000.00) based on 1991 constant
prices and either of the following requisites:

THE SEATS OF THE HOUSE OF REPRESENTATIVES OF THE

CONGRESS OF THE PHILIPPINES TO THE DIFFERENT LEGISLATIVE
DISTRICTS IN PROVINCES AND CITIES AND THE METROPOLITAN
MANILA AREA." Such records would show that the 250,000 population
benchmark was used for the 1986 nationwide apportionment of legislative
districts among provinces, cities and Metropolitan Manila. Simply put, the
population figure was used to determine how many districts a province,
city, or Metropolitan Manila should have. Simply discernible too is the fact
that, for the purpose, population had to be the determinant. Even then,
the requirement of 250,000 inhabitants was not taken as an absolute
minimum for one legislative district. And, closer to the point herein at
issue, in the determination of the precise district within the province to
which, through the use of the population benchmark, so many districts
have been apportioned, population as a factor was not the sole,though it
was among, several determinants.
From its journal,29 we can see that the Constitutional Commission
originally divided the entire country into two hundred (200) districts, which
corresponded to the original number of district representatives. The 200
seats were distributed by the Constitutional Commission in this manner:
first, one (1) seat each was given to the seventy-three (73) provinces and
the ten (10) cities with a population of at least 250,000;30 second, the
remaining seats were then redistributed among the provinces, cities and
the Metropolitan Area "in accordance with the number of their inhabitants
on the basis of a uniform and progressive ratio."31 Commissioner
Davide, who later became a Member and then Chief Justice of the Court,
explained this in his sponsorship remark32 for the Ordinance to be
appended to the 1987 Constitution:
Commissioner Davide: The ordinance fixes at 200 the number of
legislative seats which are, in turn, apportioned among provinces and
cities with a population of at least 250, 000 and the Metropolitan Area in
accordance with the number of their respective inhabitants on the basis
of a uniform and progressive ratio. The population is based on the 1986
projection, with the 1980 official enumeration as the point of reckoning.
This projection indicates that our population is more or less 56
million. Taking into account the mandate that each city with at least 250,
000 inhabitants and each province shall have at least one representative,
we first allotted one seat for each of the 73 provinces, and each one for
all cities with a population of at least 250, 000, which are the Cities of
Manila, Quezon, Pasay, Caloocan, Cebu, Iloilo, Bacolod, Cagayan de
Oro, Davao and Zamboanga. Thereafter, we then proceed[ed] to
increase whenever appropriate the number of seats for the provinces and
cities in accordance with the number of their inhabitants on the basis of a
uniform and progressive ratio. (Emphasis supplied).

(i) a contiguous territory of at least two thousand (2,000) square

kilometers, as certified by the Lands Management Bureau; or

Thus was the number of seats computed for each province and city.
Differentiated from this, the determination of the districts within the
province had to consider "all protests and complaints formally received"
which, the records show, dealt with determinants other than population as
already mentioned.

(ii) a population of not less than two hundred fifty thousand (250,000)
inhabitants as certified by the National Statistics Office.

Palawan is a case in point. Journal No. 107 of the Constitutional

Commission narrates:

Notably, the requirement of population is not an indispensable

requirement, but is merely an alternative addition to the indispensable
income requirement.

INTERPELLATION OF MR. NOLLEDO:

Mariano, it would turn out, is but a reflection of the pertinent ideas that
ran through the deliberations on the words and meaning of Section 5 of
Article VI.
The whats, whys, and wherefores of the population requirement of "at
least two hundred fifty thousand" may be gleaned from the records of the
Constitutional Commission which, upon framing the provisions of Section
5 of Article VI, proceeded to form an ordinance that would be appended
to the final document. The Ordinance is captioned "APPORTIONING

Mr. Nolledo inquired on the reason for including Puerto Princesa in the
northern towns when it was more affinity with the southern town of
Aborlan, Batarasa, Brookes Point, Narra, Quezon and Marcos. He stated
that the First District has a greater area than the Second District. He then
queried whether population was the only factor considered by the
Committee in redistricting.
Replying thereto, Mr. Davide explained that the Committee took into
account the standards set in Section 5 of the Article on the Legislative
Department, namely: 1) the legislative seats should be apportioned
among the provinces and cities and the Metropolitan Manila area in

accordance with their inhabitants on the basis of a uniform and

progressive ratio; and 2) the legislative district must be compact, adjacent
and contiguous.
Mr. Nolledo pointed out that the last factor was not met when Puerto
Princesa was included with the northern towns. He then inquired what is
the distance between Puerto Princesa from San Vicente.
xxxx
Thereupon, Mr. Nolledo stated that Puerto Princesa has a population of
75,480 and based on the apportionment, its inclusion with the northern
towns would result in a combined population of 265,000 as against only
186,000 for the south. He added that Cuyo and Coron are very important
towns in the northern part of Palawan and, in fact, Cuyo was the capital
of Palawan before its transfer to Puerto Princesa. He also pointed out
that there are more potential candidates in the north and therefore if
Puerto Princesa City and the towns of Cuyo and Coron are lumped
together, there would be less candidates in the south, most of whose
inhabitants are not interested in politics. He then suggested that Puerto
Princesa be included in the south or the Second District.
Mr. Davide stated that the proposal would be considered during the
period of amendments. He requested that the COMELEC staff study said
proposal.33
"PROPOSED AMENDMENT OF MR. NOLLEDO
On the districting of Palawan, Mr. Nolledo pointed out that it was
explained in the interpellations that District I has a total population of
265,358 including the City of Puerto Princesa, while the Second District
has a total population of 186,733. He proposed, however, that Puerto
Princesa be included in the Second District in order to satisfy the
contiguity requirement in the Constitution considering that said City is
nearer the southern towns comprising the Second District.
In reply to Mr. Monsods query, Mr. Nolledo explained that with the
proposed transfer of Puerto Princesa City to the Second District, the First
District would only have a total population of 190,000 while the Second
District would have 262,213, and there would be no substantial changes.
Mr. Davide accepted Mr. Nolledos proposal to insert Puerto Princesa City
before the Municipality of Aborlan.
There being no objection on the part of the Members the same was
approved by the Body.
APPROVAL OF THE APPORTIONMENT AND DISTRICTING OF
PALAWAN
There being no other amendment, on motion of Mr. Davide, there being
no objection, the apportionment and districting for the province of
Palawan was approved by the Body.34
The districting of Palawan disregarded the 250,000 population figure. It
was decided by the importance of the towns and the city that eventually
composed the districts.
Benguet and Baguio are another reference point. The Journal further
narrates:
At this juncture, Mr. Davide informed the Body that Mr. Regalado made a
reservation with the Committee for the possible reopening of the approval
of Region I with respect to Benguet and Baguio City.
REMARKS OF MR. REGALADO
Mr. Regalado stated that in the formulation of the Committee, Baguio City
and Tuba are placed in one district. He stated that he was toying with the

idea that, perhaps as a special consideration for Baguio because it is the

summer capital of the Philippines, Tuba could be divorced from Baguio
City so that it could, by itself, have its own constituency and Tuba could
be transferred to the Second District together with Itogon. Mr. Davide,
however, pointed out that the population of Baguio City is only 141,149.
Mr. Regalado admitted that the regular population of Baguio may be
lower during certain times of the year, but the transient population would
increase the population substantially and, therefore, for purposes of
business and professional transactions, it is beyond question that
population-wise, Baguio would more than qualify, not to speak of the
official business matters, transactions and offices that are also there.
Mr. Davide adverted to Director de Limas statement that unless Tuba
and Baguio City are united, Tuba will be isolated from the rest of Benguet
as the place can only be reached by passing through Baguio City. He
stated that the Committee would submit the matter to the Body.
Upon inquiry of the Chair whether he is insisting on his amendment, Mr.
Regalado stated that the Body should have a say on the matter and that
the considerations he had given are not on the demographic aspects but
on the fact that Baguio City is the summer capital, the venue and situs of
many government offices and functions.
On motion of Mr. Davide, there being no objection, the Body approved
the reconsideration of the earlier approval of the apportionment and
districting of Region I, particularly Benguet.
Thereafter, on motion of Mr. Davide, there being no objection, the
amendment of Mr. Regalado was put to a vote. With 14 Members voting
in favor and none against, the amendment was approved by the Body.
Mr. Davide informed that in view of the approval of the amendment,
Benguet with Baguio City will have two seats. The First District shall
comprise of the municipalities of Mankayan, Buguias, Bakun, Kabayan,
Kibungan, Bokod, Atok, Kapangan, Tublay, La Trinidad, Sablan, Itogon
and Tuba. The Second District shall comprise of Baguio City alone.
There being no objection, the Body approved the apportionment and
districting of Region I.35
Quite emphatically, population was explicitly removed as a factor.
It may be additionally mentioned that the province of Cavite was divided
into districts based on the distribution of its three cities, with each district
having a city: one district "supposed to be a fishing area; another a
vegetable and fruit area; and the third, a rice growing area," because
such consideration "fosters common interests in line with the standard of
compactness."36 In the districting of Maguindanao, among the matters
discussed were "political stability and common interest among the people
in the area" and the possibility of "chaos and disunity" considering the
"accepted regional, political, traditional and sectoral leaders."37 For
Laguna, it was mentioned that municipalities in the highland should not
be grouped with the towns in the lowland. For Cebu, Commissioner
Maambong proposed that they should "balance the area and
population."38
Consistent with Mariano and with the framer deliberations on district
apportionment, we stated in Bagabuyo v. COMELEC39 that:
x x x Undeniably, these figures show a disparity in the population sizes of
the districts. The Constitution, however, does not require mathematical
exactitude or rigid equality as a standard in gauging equality of
representation. x x x. To ensure quality representation through
commonality of interests and ease of access by the representative to the
constituents, all that the Constitution requires is that every legislative
district should comprise, as far as practicable, contiguous, compact and
adjacent territory. (Emphasis supplied).

This 2008 pronouncement is fresh reasoning against the uncompromising

stand of petitioner that an additional provincial legislative district, which
does not have at least a 250,000 population is not allowed by the
Constitution.

Thereby Creating a New Legislative District From Such

Reapportionment" is a VALID LAW.

The foregoing reading and review lead to a clear lesson.

Republic of the Philippines

SUPREME COURT
Manila

Neither in the text nor in the essence of Section 5, Article VI of the

Constitution can, the petition find support. And the formulation of the
Ordinance in the implementation of the provision, nay, even the
Ordinance itself, refutes the contention that a population of 250,000 is a
constitutional sine qua non for the formation of an additional legislative
district in a province, whose population growth has increased beyond the
1986 numbers.
Translated in the terms of the present case:
1. The Province of Camarines Sur, with an estimated population of
1,693,821 in 2007 is based on the formula and constant number of
250,000 used by the Constitutional Commission in nationally apportioning
legislative districts among provinces and cities entitled to two (2)
districts in addition to the four (4) that it was given in the 1986
apportionment. Significantly, petitioner Aquino concedes this point.40 In
other words, Section 5 of Article VI as clearly written allows and does not
prohibit an additional district for the Province of Camarines Sur, such as
that provided for in Republic Act No. 9786;

SO ORDERED.

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 & Hofilea Law Office for petitioners.

ALAMPAY, J.:
2. Based on the pith and pitch of the exchanges on the Ordinance on the
protests and complaints against strict conformity with the population
standard, and more importantly based on the final districting in the
Ordinance on considerations other than population, the reapportionment
or the recomposition of the first and second legislative districts in the
Province of Camarines Sur that resulted in the creation of a new
legislative district is valid even if the population of the new district is
176,383 and not 250,000 as insisted upon by the petitioners.
3. The factors mentioned during the deliberations on House Bill No. 4264,
were:
(a) the dialects spoken in the grouped municipalities;
(b) the size of the original groupings compared to that of the regrouped
municipalities;
(c) the natural division separating the municipality subject of the
discussion from the reconfigured District One; and
(d) the balancing of the areas of the three districts resulting from the
redistricting of Districts One and Two.41
Each of such factors and in relation to the others considered together,
with the increased population of the erstwhile Districts One and Two,
point to the utter absence of abuse of discretion, much less grave abuse
of discretion,42 that would warrant the invalidation of Republic Act No.
9716.
To be clear about our judgment, we do not say that in the
reapportionment of the first and second legislative districts of Camarines
Sur, the number of inhabitants in the resulting additional district should
not be considered. Our ruling is that population is not the only factor but
is just one of several other factors in the composition of the additional
district. Such settlement is in accord with both the text of the Constitution
and the spirit of the letter, so very clearly given form in the Constitutional
debates on the exact issue presented by this petition.1avvphi1

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.
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)

WHEREFORE, the petition is hereby DISMISSED. Republic Act No. 9716

entitled "An Act Reapportioning the Composition of the First (1st) and
Second (2nd) Legislative Districts in the Province of Camarines Sur and

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 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 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 BatasangPambansa 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
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.
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.
Secondly, in Parliamentary Bill No. 3644 which led to the enactment of
Batas Pambansa Blg. 885 and the creation of the new Province of
Negros del Norte, it expressly declared in Sec. 2 of the aforementioned
Parliamentary Bill, the following:

Victorias, E.R. Magalona; and Salvador Benedicto, all in the northern

portion of the Island of Negros, are hereby separated from the Province
of Negros Occidental and constituted into a new province to be known as
the Province of Negros del Norte.
SEC. 1. 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 of
the Island of Negros on the West, North and East, comprising a territory
of 4,019.95 square kilometers more or less.
Equally accepted by the parties is the fact that under the certification
issued by Provincial Treasurer Julian L. Ramirez of the Province of
Negros Occidental, dated July 16, 1985, it was therein certified as
follows:
xxx xxx xxx
This is to certify that the following cities and municipalities of Negros
Occidental have the land area as indicated hereunder based on the
Special Report No. 3, Philippines 1980, Population, Land Area and
Density: 1970, 1975 and 1980 by the National Census and Statistics
Office, Manila.
Land Area
(Sq. Km.)
1. Silay City ...................................................................214.8
2. E.B. Magalona............................................................113.3
3. Victorias.....................................................................133.9
4. Manapla......................................................................112.9
5. Cadiz City ..................................................................516.5
6. Sagay .........................................................................389.6
7. Escalante ....................................................................124.0
8. Toboso.......................................................................123.4
9. Calatrava.....................................................................504.5
10. San Carlos City...........................................................451.3
11. Don Salvador Benedicto.................................... (not available)
This certification is issued upon the request of Dr. Patricio Y. Tan for
whatever purpose it may serve him.
(SGD.) JULIAN L. RAMIREZ
Provincial Treasurer (Exh. "C" of Petition, Rollo, p. 90).

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 natural boundaries of the northern
portion of the Island of Negros on the West, North and East, containing
an area of 285,656 hectares more or less. (Emphasis supplied).
However, when said Parliamentary Bill No. 3644 was very quickly
enacted into Batas Pambansa Blg. 885, the boundaries of the new
Province of Negros del Norte were defined therein and its boundaries
then stated to be as follows:
SECTION 1. The Cities of Silay, Cadiz, and San Carlos and the
municipalities of Calatrava, Toboso, Escalante, Sagay, Manapla,

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 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 noncompliance 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
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
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.

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.

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.

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.

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:
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

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
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.
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.
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 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.