SECOND DIVISION

Meliton C. Larano at buong pagkakaisang sinangayunan ng lahat

ng dumalo sa pulong;

[G.R. No. 129093. August 30, 2001]

IPINASIYA, na tutulan gaya ng dito ay mahigpit na TINUTUTULAN

ang ano mang uri ng sugal dito sa lalawigan ng Laguna lalot higit
ang Lotto;

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

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

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]

DECISION
QUISUMBING, J.:
For our resolution is a petition for review on certiorari seeking
the reversal of the decision[1] dated February 10, 1997 of the
Regional Trial Court of San Pedro, Laguna, Branch 93, enjoining
petitioners from implementing or enforcing Kapasiyahan Bilang
508, Taon 1995, of the Sangguniang Panlalawigan of Laguna and its
subsequent Order[2] dated April 21, 1997 denying petitioners
motion for reconsideration.
On December 29, 1995, respondent Tony Calvento was
appointed agent by the Philippine Charity Sweepstakes Office
(PCSO) to install Terminal OM 20 for the operation of lotto. He asked
Mayor Calixto Cataquiz, Mayor of San Pedro, Laguna, for a mayors
permit to open the lotto outlet. This was denied by Mayor Cataquiz
in a letter dated February 19, 1996. The ground for said denial was
an ordinance passed by the Sangguniang Panlalawigan of Laguna
entitled Kapasiyahan Blg. 508, T. 1995 which was issued on
September 18, 1995. The ordinance reads:
ISANG KAPASIYAHAN TINUTUTULAN ANG MGA ILLEGAL GAMBLING
LALO NA ANG LOTTO SA LALAWIGAN NG LAGUNA
SAPAGKAT, ang sugal dito sa lalawigan ng Laguna ay talamak na;
SAPAGKAT, ang sugal ay nagdudulot ng masasamang impluwensiya
lalot higit sa mga kabataan;
KUNG KAYAT DAHIL DITO, at sa mungkahi nina Kgg. Kgd. Juan M.
Unico at Kgg. Kgd. Gat-Ala A. Alatiit, pinangalawahan ni Kgg. Kgd.

As a result of this resolution of denial, respondent Calvento

filed a complaint for declaratory relief with prayer for preliminary
injunction and temporary restraining order. In the said complaint,
respondent Calvento asked the Regional Trial Court of San Pedro
Laguna, Branch 93, for the following reliefs: (1) a preliminary
injunction or temporary restraining order, ordering the defendants
to refrain from implementing or enforcing Kapasiyahan Blg. 508, T.
1995; (2) an order requiring Hon. Municipal Mayor Calixto R.
Cataquiz to issue a business permit for the operation of a lotto
outlet;
and
(3)
an
order
annulling
or
declaring
as
invalid Kapasiyahan Blg. 508, T. 1995.
On February 10, 1997, the respondent judge, Francisco Dizon
Pao, promulgated his decision enjoining the petitioners from
implementing or enforcing resolution or Kapasiyahan Blg. 508, T.
1995. The dispositive portion of said decision reads:
WHEREFORE, premises considered, defendants, their agents and
representatives are hereby enjoined from implementing or
enforcing resolution or kapasiyahan blg. 508, T. 1995 of the
Sangguniang Panlalawigan ng Laguna prohibiting the operation of
the lotto in the province of Laguna.
SO ORDERED.[4]
Petitioners filed a motion for reconsideration which was
subsequently denied in an Order dated April 21, 1997, which reads:
Acting on the Motion for Reconsideration filed by defendants Jose D.
Lina, Jr. and the Sangguniang Panlalawigan of Laguna, thru counsel,
with the opposition filed by plaintiffs counsel and the comment

thereto filed by counsel for the defendants which were duly noted,
the Court hereby denies the motion for lack of merit.
SO ORDERED.[5]
On May 23, 1997, petitioners filed this petition alleging that the
following errors were committed by the respondent trial court:
I
THE TRIAL COURT ERRED IN ENJOINING THE PETITIONERS FROM
IMPLEMENTING KAPASIYAHAN BLG. 508, T. 1995 OF THE
SANGGUNIANG PANLALAWIGAN OF LAGUNA PROHIBITING THE
OPERATION OF THE LOTTO IN THE PROVINCE OF LAGUNA.
II
THE TRIAL COURT FAILED TO APPRECIATE THE ARGUMENT POSITED
BY THE PETITIONERS THAT BEFORE ANY GOVERNMENT PROJECT OR
PROGRAM MAY BE IMPLEMENTED BY THE NATIONAL AGENCIES OR
OFFICES, PRIOR CONSULTATION AND APPROVAL BY THE LOCAL
GOVERNMENT UNITS CONCERNED AND OTHER CONCERNED
SECTORS IS REQUIRED.
Petitioners contend that the assailed resolution is a valid policy
declaration of the Provincial Government of Laguna of its vehement
objection to the operation of lotto and all forms of gambling. It is
likewise a valid exercise of the provincial governments police power
under the General Welfare Clause of Republic Act 7160, otherwise
known as the Local Government Code of 1991.[6] They also maintain
that respondents lotto operation is illegal because no prior
consultations and approval by the local government were sought
before it was implemented contrary to the express provisions of
Sections 2 (c) and 27 of R.A. 7160.[7]
For his part, respondent Calvento argues that the questioned
resolution is, in effect, a curtailment of the power of the state since
in this case the national legislature itself had already declared lotto
as legal and permitted its operations around the country. [8] As for
the allegation that no prior consultations and approval were sought
from the sangguniang panlalawigan of Laguna, respondent
Calvento contends this is not mandatory since such a requirement
is merely stated as a declaration of policy and not a self-executing
provision of the Local Government Code of 1991.[9] He also states
that his operation of the lotto system is legal because of the

authority given to him by the PCSO, which in turn had been granted
a franchise to operate the lotto by Congress. [10]
The Office of the Solicitor General (OSG), for the State,
contends that the Provincial Government of Laguna has no power
to prohibit a form of 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 provinces Sangguniang
Panlalawigan cannot nullify the exercise of said authority by
preventing something already allowed by Congress.
The issues to be resolved now are the following: (1)
whether Kapasiyahan Blg. 508, T. 1995 of the Sangguniang
Panlalawigan of Laguna and the denial of a mayors permit based
thereon are valid; and (2) whether prior consultations and approval
by the concerned Sanggunian are needed before a lotto system can
be operated in a given local government unit.
The entire controversy stemmed from the refusal of Mayor
Cataquiz to issue a mayors permit for the operation of a lotto outlet
in favor of private respondent. According to the mayor, he based
his decision on an existing ordinance prohibiting the operation of
lotto in the province of Laguna. The ordinance, however, merely
states the objection of the council to the said game. It is but a mere
policy statement on the part of the local council, which is not selfexecuting. Nor could it serve as a valid ground to prohibit the
operation of the lotto system in the province of Laguna. Even
petitioners admit as much when they stated in their petition that:
5.7. The terms of the Resolution and the validity thereof are
express and clear. The Resolution is a policy declaration of the
Provincial Government of Laguna of its vehement opposition and/or
objection to the operation of and/or all forms of gambling including
the Lotto operation in the Province of Laguna.[12]
As a policy statement expressing the local governments
objection to the lotto, such resolution is valid. This is part of the

local governments autonomy to air its views which may be contrary

to that of the national governments. However, this freedom to
exercise contrary views does not mean that local governments may
actually enact ordinances that go against laws duly enacted by
Congress. Given this premise, the assailed resolution in this case
could not and should not be interpreted as a measure or ordinance
prohibiting the operation of lotto.
The game of lotto is a game of chance duly authorized by the
national government through an Act of Congress. Republic Act
1169, as amended by Batas Pambansa Blg. 42, is the law which
grants a franchise to the PCSO and allows it to operate the
lotteries. The pertinent provision reads:
Section 1. The Philippine Charity Sweepstakes Office.- The
Philippine Charity Sweepstakes Office, hereinafter designated the
Office, shall be the principal government agency for raising and
providing for funds for health programs, medical assistance and
services and charities of national character, and as such shall have
the general powers conferred in section thirteen of Act Numbered
One thousand four hundred fifty-nine, as amended, and shall have
the authority:
A. To hold and conduct charity sweepstakes races, lotteries, and
other similar activities, in such frequency and manner, as shall be
determined, and subject to such rules and regulations as shall be
promulgated by the Board of Directors.
This statute remains valid today. While lotto is clearly a game
of chance, the national government deems it wise and proper to
permit it. Hence, the Sangguniang Panlalawigan of Laguna, a local
government unit, cannot issue a resolution or an ordinance that
would seek to prohibit permits. Stated otherwise, what the national
legislature expressly allows by law, such as lotto, a provincial board
may not disallow by ordinance or resolution.
In our system of government, the power of local government
units to legislate and enact ordinances and resolutions is merely a
delegated power coming from Congress. As held in Tatel vs. Virac,
[13]
ordinances should not contravene an existing statute enacted by
Congress. The reasons for this is obvious, as elucidated in Magtajas
v. Pryce Properties Corp.[14]
Municipal governments are only agents of the national
government. Local councils exercise only delegated legislative
powers conferred upon them by Congress as the national

lawmaking body. The delegate cannot be superior to the principal

or exercise powers higher than those of the latter. It is a heresy to
suggest that the local government units can undo the acts of
Congress, from which they have derived their power in the first
place, and negate by mere ordinance the mandate of the statute.
Municipal corporations owe their origin to, and derive their powers
and rights wholly from the legislature. It breathes into them the
breath of life, without which they cannot exist. As it creates, so it
may destroy. As it may destroy, it may abridge and control. Unless
there is some constitutional limitation on the right, the legislature
might, by a single act, and if we can suppose it capable of so great
a folly and so great a wrong, sweep from existence all of the
municipal corporations in the state, and the corporation could not
prevent it. We know of no limitation on the right so far as the
corporation themselves are concerned. They are, so to phrase it,
the mere tenants at will of the legislature (citing Clinton vs. Ceder
Rapids, etc. Railroad Co., 24 Iowa 455).
Nothing in the present constitutional provision enhancing local
autonomy dictates a different conclusion.
The basic relationship between the national legislature and the
local government units has not been enfeebled by the new
provisions in the Constitution strengthening the policy of local
autonomy. Without meaning to detract from that policy, we here
confirm that Congress retains control of the local government units
although in significantly reduced degree now than under our
previous Constitutions. The power to create still includes the power
to destroy. The power to grant still includes the power to withhold
or recall. True, there are certain notable innovations in the
Constitution, like the direct conferment on the local government
units of the power to tax (citing Art. X, Sec. 5, Constitution), which
cannot now be withdrawn by mere statute. By and large, however,
the national legislature is still the principal of the local government
units, which cannot defy its will or modify or violate it. [15]
Ours is still a unitary form of government, not a federal
state. Being so, any form of autonomy granted to local
governments will necessarily be limited and confined within the
extent allowed by the central authority. Besides, the principle of
local autonomy under the 1987 Constitution simply means
decentralization. It does not make local governments sovereign
within the state or an imperium in imperio.[16]

To conclude our resolution of the first issue, respondent mayor

of San Pedro, cannot avail of Kapasiyahan Bilang 508, Taon 1995, of
the Provincial Board of Laguna as justification to prohibit lotto in his
municipality. For said resolution is nothing but an expression of the
local legislative unit concerned. The Boards enactment, like spring
water, could not rise above its source of power, the national
legislature.
As for the second issue, we hold that petitioners erred in
declaring that Sections 2 (c) and 27 of Republic Act 7160, otherwise
known as the Local Government Code of 1991, apply mandatorily in
the setting up of lotto outlets around the country. These provisions
state:
Section 2. Declaration of Policy. x x x
(c) It is likewise the policy of the State to require all national
agencies and offices to conduct periodic consultations with
appropriate local government units, non-governmental and peoples
organizations, and other concerned sectors of the community
before any project or program is implemented in their respective
jurisdictions.
Section 27. Prior Consultations Required. No project or program
shall be implemented by government authorities unless the
consultations mentioned in Section 2 (c) and 26 hereof are
complied with, and prior approval of the sanggunian concerned is
obtained; Provided, that occupants in areas where such projects are
to be implemented shall not be evicted unless appropriate
relocation sites have been provided, in accordance with the
provisions of the Constitution.
From a careful reading of said provisions, we find that these
apply only to national programs and/or projects which are to be
implemented in a particular local community. Lotto is neither a
program nor a project of the national government, but of a
charitable institution, the PCSO. Though sanctioned by the national
government, it is far fetched to say that lotto falls within the
contemplation of Sections 2 (c) and 27 of the Local Government
Code.
Section 27 of the Code should be read in conjunction with
Section 26 thereof.[17] Section 26 reads:
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 mayors refusal to issue the permit sought by private
respondent in connection with a legitimate business activity
authorized by a law passed by Congress.
WHEREFORE, the petition is DENIED for lack of merit. The
Order of the Regional Trial Court of San Pedro, Laguna enjoining the
petitioners
from
implementing
or
enforcing
Resolution
orKapasiyahan Blg. 508, T. 1995, of the Provincial Board of Laguna
is hereby AFFIRMED. No costs.

[15]

SO ORDERED.
Bellosillo,
JJ., concur.

(Chairman),

Mendoza,

Buena, and De

Leon,

Jr.,

Id. at 273.

[16]

Basco vs. Phil. Amusement and Gaming Corporation, 197 SCRA

52, 65 (1991).
[17]

Aquilino Q. Pimentel, Jr., The Local Government Code of 1991, p.

124.
[1]

Rollo, pp. 18-20.

[2]

Id. at 21.

[3]

Records, pp. 8-8-A.

[4]

Rollo, p. 20.

[5]

Id. at 21.

[6]

Id. at 13.
[7]

Section 2. Declaration of Policy. x x x

(c) It is likewise the policy of the State to require all national

agencies and offices to conduct periodic consultations with
appropriate local government units, non-governmental and peoples
organizations, and other concerned sectors of the community
before any project or program is implemented in their respective
jurisdictions.
Section 27. Prior Consultations Required. No project or program
shall be implemented by government authorities unless the
consultations mentioned in Section 2 (c) and 26 hereof are
complied with, and prior approval of the sanggunian concerned is
obtained; Provided, that occupants in areas where such projects are
to be implemented shall not be evicted unless appropriate
relocation sites have been provided, in accordance with the
provisions of the Constitution.
[8]

Rollo, p. 25.

[9]

Id. at. 27.

[10]

Id. at 28.

[11]

Id. at 58-61.

[12]

Id. at 13.

[13]

207 SCRA 157, 161 (1992).

[14]

Magtajas vs. Pryce Properties Corp., 234 SCRA 255, 272-273

(1994).

EN BANC

[G.R. No. 130775. September 27, 2004]

THE NATIONAL LIGA NG MGA BARANGAY, represented by

ALEX L. DAVID in his capacity as National President
and for his own Person, President ALEX L.
DAVID, petitioners, vs. HON. VICTORIA ISABEL A.
PAREDES, Presiding Judge, Regional Trial Court,
Branch 124, Caloocan City, and THE DEPARTMENT OF
INTERIOR and LOCAL GOVERNMENT, represented the
HON. SECRETARY ROBERT Z. BARBERS and MANUEL A.
RAYOS, respondents.

[G.R. No. 131939. September 27, 2004]

LEANDRO YANGOT, BONIFACIO LACWASAN and BONY

TACIO, petitioners, vs. DILG Secretary ROBERT Z.
BARBERS
and
DILG
Undersecretary
MANUEL
SANCHEZ, respondents.
DECISION
Tinga, J.:
At bottom, the present petition inquires into the essential
nature of the Liga ng mga Barangay and questions the extent of
the power of Secretary of the Department of Interior and Local
Government
(DILG),
as alter
ego of
the
President. More
immediately, the petition disputes the validity of the appointment
of the DILG as the interim caretaker of the Liga ng mga Barangay.

On 11 June 1997, private respondent Manuel A. Rayos [as

petitioner therein], Punong Barangay of Barangay 52, District II,
Zone 5, District II, Caloocan City, filed a petition for prohibition and
mandamus, with prayer for a writ of preliminary injunction and/or
temporary restraining order and damages before the Regional Trial
Court (RTC) of Caloocan,[1] alleging that respondent therein Alex L.
David [now petitioner], Punong Barangay of Barangay 77, Zone 7,
Caloocan City and then president of the Liga Chapter of Caloocan
City and of the Liga ng mga Barangay National Chapter, committed
certain irregularities in the notice, venue and conduct of the
proposed synchronized Liga ng mga Barangay elections in
1997. According to the petition, the irregularities consisted of the
following: (1) the publication of the notice in the Manila Bulletin but
without notifying in writing the individual punong barangays of
Caloocan City;[2](2) the Notice of Meeting dated 08 June 1997 for
the Liga Chapter of Caloocan City did not specify whether the
meeting scheduled on 14 June 1997 was to be held at 8:00 a.m. or
8:00 p.m., and worse, the meeting was to be held in Lingayen,
Pangasinan;[3] and (3) the deadline for the filing of the Certificates
of Candidacy having been set at 5:00 p.m. of the third day prior to
the above election day, or on 11 June 1997, [4] Rayos failed to
meet said deadline since he was not able to obtain a certified true
copy of the COMELEC Certificate of Canvas and Proclamation of
Winning Candidate, which were needed to be a delegate, to vote
and be voted for in the Liga election. On 13 June 1997, the
Executive Judge issued a temporary restraining order (TRO),
effective for seventy-two (72) hours, enjoining the holding of the
general membership and election meeting of Liga Chapter
of Caloocan City on 14 June 1975.[5]
However, the TRO was allegedly not properly served on herein
petitioner David, and so the election for the officers of the LigaCaloocan was held as scheduled. [6] Petitioner David was proclaimed
President of the Liga-Caloocan, and thereafter took his oath and
assumed the position of ex-officio member of the Sangguniang
Panlungsod of Caloocan.
On 17 July 1997, respondent Rayos filed a second petition, this
time for quo warranto, mandamus and prohibition, with prayer for a
writ of preliminary injunction and/or temporary restraining order
and damages, against David, Nancy Quimpo, Presiding Officer of
the Sangguniang Panlungsod of Caloocan City, and Secretary
Barbers.[7] Rayos alleged that he was elected President of
the Liga Caloocan Chapter in the elections held on 14 June 1997 by
the members of the Caloocan Chapter pursuant to their
Resolution/Petition No. 001-97.[8] On 18 July 1997, the presiding
judge granted the TRO, enjoining therein respondents David,

Quimpo and Secretary Barbers from proceeding with the

synchronized elections for the Provincial and Metropolitan Chapters
of the Liga scheduled on 19 July 1997, but only for the purpose of
maintaining the status quo and effective for a period not exceeding
seventy-two (72) hours.[9]
Eventually, on 18 July 1997, at petitioner Davids instance,
Special Civil Action (SCA) No. C-512 pending before Branch 126 was
consolidated with SCA No. C-508 pending before Branch 124. [10]
Before the consolidation of the cases, on 25 July 1997, the DILG
through respondent Secretary Barbers, filed in SCA No. C-512
an Urgent Motion,[11] invoking the Presidents power of general
supervision over all local government units and seeking the
following reliefs:
WHEREFORE, in the interest of the much-needed delivery of basic
services to the people, the maintenance of public order and to
further protect the interests of the forty-one thousand barangays all
over the country, herein respondent respectfully prays:
a)

That the Department of the Interior and Local

Government (DILG), pursuant to its delegated power of
general supervision, be appointed as the Interim
Caretaker to manage and administer the affairs of the
Liga, until such time that the new set of National Liga
Officers shall have been duly elected and assumed
office; ...[12]

The prayer for injunctive reliefs was anchored on the following

grounds: (1) the DILG Secretary exercises the power of general
supervision over all government units by virtue of Administrative
Order No. 267 dated 18 February 1992; (2) the Liga ng mga
Barangay is a government organization; (3) undue interference by
some local elective officials during the Municipal and City Chapter
elections of the Liga ng mga Barangay; (4) improper issuance of
confirmations of the elected Liga Chapter officers by petitioner
David and the National LigaBoard; (5) the need for the DILG to
provide remedies measured in view of the confusion and chaos
sweeping the Liga ng mga Barangay and the incapacity of the
National Liga Board to address the problems properly.
On 31 July 1997, petitioner David opposed the DILGs Urgent
Motion, claiming that the DILG, being a respondent in the case, is
not allowed to seek any sanction against a co-respondent like
David, such as by filing a cross-claim, without first seeking leave of
court.[13] He also alleged that the DILGs request to be appointed

interim caretaker constitutes undue interference in the internal

affairs of the Liga, since the Liga is not subject to DILG control and
supervision.[14]
Three (3) days after filing its Urgent Motion, on 28 July 1997,
and before it was acted upon by the lower court, the DILG through
then Undersecretary Manuel Sanchez, issued Memorandum Circular
No. 97-176.[15] It cited the reported violations of the Liga ng mga
Barangay Constitution and By-Laws by David and widespread chaos
and confusion among local government officials as to who were the
qualified ex-officio Liga members in their respective sangunians.
[16]
Pending the appointment of the DILG as the Interim Caretaker of
the Liga ng mga Barangay by the court and until the officers and
board members of the national Liga Chapter have been elected and
have assumed office, the Memorandum Circular directed all
provincial governors, vice governors, city mayors, city vice mayors,
members of the sangguniang panlalawigan and panlungsod, DILG
regional directors and other concerned officers, as follows:
1. All concerned are directed not to recognize and/or honor any
Liga Presidents of the Provincial and Metropolitan Chapters as exofficio members of the sanggunian concerned until further notice
from the Courts or this Department;
2. All concerned are directed to disregard any pronouncement
and/or directive issued by Mr. Alex David on any issue or matter
relating to the affairs of the Liga ng mga Barangay until further
notice from the Courts or this Department.[17]
On 04 August 1997, public respondent Judge Victoria Isabel A.
Paredes issued the assailed order,[18] the pertinent portions of which
read, thus:
The authority of the DILG to exercise general supervisory
jurisdiction over local government units, including the different
leagues created under the Local Government Code of 1991 (RA
7160) finds basis in Administrative Order No. 267 dated February
18, 1992. Specifically, Section 1 (a) of the said Administrative Order
provides a broad premise for the supervisory power of the
DILG. Administratively, the DILGs supervision has been tacitly
recognized by the local barangays, municipalities, cities and
provinces as shown by the evidences presented by respondent
David himself (See Annexes A to C). The fact that the DILG has
sought to refer the matters therein to the National Liga
Board/Directorate does not ipso facto mean that it has lost

jurisdiction to act directly therein. Jurisdiction is conferred by law

and cannot be claimed or lost through agreements or inaction by
individuals. What respondent David may term as interference
should caretakership be allowed, this Court would rather view as a
necessary and desirable corollary to the exercise of supervision. [19]
Political motivations must not preclude, hamper, or obstruct the
delivery of basic services and the perquisites of public service. In
this case, the fact of confusion arising from conflicting
appointments, non-action, and uninformed or wavering decisions of
the incumbent National Liga Board/Directorate, having been
satisfactorily established, cannot simply be brushed aside as being
politically motivated or arising therefrom. It is incumbent, therefore,
that the DILG exercise a more active role in the supervision of the
affairs and operations of the National Liga Board/ Directorate at
least until such time that the regular National Liga
Board/Directorate may have been elected, qualified and assumed
office.[20]
xxx
WHEREFORE, premises considered, the Urgent Motion of the DILG
for appointment as interim caretaker, until such time that the
regularly elected National Liga Board of Directors shall have
qualified and assumed office, to manage and administer the affairs
of the National Liga Board, is hereby GRANTED.[21]
On 11 August 1997, petitioner David filed an urgent motion for
the reconsideration of the assailed order and to declare respondent
Secretary Barbers in contempt of Court. [22] David claimed that the
04 August 1997 order divested the duly elected members of the
Board of Directors of the Liga National Directorate of their positions
without due process of law. He also wanted Secretary Barbers
declared in
contempt
for having
issued,
through
his
Undersecretary, Memorandum Circular No. 97-176, even before
respondent judge issued the questioned order, in mockery of the
justice system. He implied that Secretary Barbers knew about
respondent judges questioned order even before it was
promulgated.[23]
On 11 August 1997, the DILG issued Memorandum Circular No.
97-193,[24] providing supplemental guidelines for the 1997
synchronized elections of the provincial and metropolitan chapters
and for the election of the national chapter of the Liga ng mga
Barangay. The Memorandum Circular set the synchronized

elections for the provincial and metropolitan chapters on 23 August

1997 and for the national chapter on 06 September 1997.
On 12 August 1997, the DILG issued a Certificate of
Appointment[25] in favor of respondent Rayos as president of
the Liga ng mga Barangay of Caloocan City. The appointment
purportedly served as Rayoss legal basis for ex-officio membership
in the Sangguniang Panlungsod of Caloocan City and to qualify and
participate in the forthcoming National Chapter Election of the Liga
ng mga Barangay.[26]
On 23 August 1997, the DILG conducted the synchronized
elections of Provincial and Metropolitan Liga Chapters. Thereafter,
on 06 September 1997, the National Liga Chapter held its election
of officers and board of directors, wherein James Marty L. Lim was
elected as President of the National Liga.[27]
On 01 October 1997, public respondent judge denied Davids
motion for reconsideration,[28] ruling that there was no factual or
legal basis to reconsider the appointment of the DILG as interim
caretaker of the National Liga Board and to cite Secretary Barbers
in contempt of court.[29]
On 10 October 1997, petitioners filed the instant Petition for
Certiorari[30] under Rule 65 of the Rules of Court, seeking to annul
public respondent judges orders of 04 August 1997 and 01 October
1997. They dispute the latters opinion on the power of supervision
of the President under the Constitution, through the DILG over local
governments, which is the same as that of the DILGs as shown by
its
application
of
the
power
on
the Liga
ng
mga
Barangay. Specifically, they claim that the public respondent
judges designation of the DILG as interim caretaker and the acts
which the DILG sought to implement pursuant to its designation as
such are beyond the scope of the Chief Executives power of
supervision.
To support the petition, petitioners argue that under
Administrative Order No. 267, Series of 1992, the power of general
supervision of the President over local government units does not
apply to the Liga and its various chapters precisely because
the Liga is not a local government unit, contrary to the stance of
the respondents.[31]
Section 507 of the Local Government Code (Republic Act No.
7160)[32] provides that the Liga shall be governed by its own
Constitution and By-laws. Petitioners posit that the duly elected
officers and directors of the National Liga elected in 1994 had a
vested right to their positions and could only be removed therefrom

for cause by affirmative vote of two-thirds (2/3) of the entire

membership pursuant to the Liga Constitution and By-Laws, and
not by mere issuances of the DILG, even if bolstered by the dubious
authorization of respondent judge.[33]Thus, petitioners claim that
the questioned order divested the then incumbent officers and
directors of the Liga of their right to their respective offices without
due process of law.
Assuming the Liga could be subsumed under the term local
governments, over which the President, through the DILG
Secretary, has the power of supervision, [34] petitioners point out
that still there is no legal or constitutional basis for the
appointment of the DILG as interim caretaker. [35] They stress that
the actions contemplated by the DILG as interim caretaker go
beyond supervision, as what it had sought and obtained was
authority to alter, modify, nullify or set aside the actions of
the Liga Board of Directors and even to substitute its judgment
over that of the latter which are all clearly one of control.
[36]
Petitioners question the appointment of Rayos as Liga-Caloocan
President since at that time petitioner David was occupying that
position which was still the subject of the quo warranto proceedings
Rayos himself had instituted.[37] Petitioners likewise claim that DILG
Memorandum Circular No. 97-193, providing supplemental
guidelines for the synchronized elections of the Liga, replaced the
implementing rules adopted by the Liga pursuant to its Constitution
and By-laws.[38] In fact, even before its appointment as interim
caretaker, DILG specifically enjoined all heads of government units
from recognizing petitioner David and/or honoring any of his
pronouncements relating to the Liga.[39]
Petitioners rely on decision in Taule v. Santos,[40] which, they
claim, already passed upon the extent of authority of the then
Secretary of Local Government over the katipunan ng mga
barangay or the barangay councils, as it specifically ruled that the
Secretary [of Local Government] has no authority to pass upon the
validity or regularity of the election of officers of the katipunan. [41]
For his part, respondent Rayos avers that since the Secretary of
the DILG supervises the acts of local officials by ensuring that they
act within the scope of their prescribed powers and functions and
since members of the various leagues, such as the Liga in this
case, are themselves officials of local government units, it follows
that the Liga members are subject to the power of supervision of
the DILG.[42] He adds that as the DILGs management and
administration of the Liga affairs was limited only to the conduct of
the elections, its actions were consistent with its rule-making power
and power of supervision under existing laws. [43] He asserts that in

assailing
the
appointment
of
the
DILG
as
interim
caretaker, petitioners failed to cite any provision of positive law in
support of their stance. Thus, he adds, if a law is silent, obscure or
insufficient, a judge may apply a rule he sees fit to resolve the
issue, as long as the rule chosen is in harmony with general
interest, order, morals and public policy,[44] in consonance with
Article 9 of the Civil Code.[45]
On the other hand, it is quite significant that the Solicitor
General has shared petitioners position. He states that the DILGs
act of managing and administering the affairs of the
NationalLiga Board are not merely acts of supervision but plain
manifestations of control and direct takeover of the functions of the
National Liga Board,[46] going beyond the limits of the power of
general supervision of the President over local governments.
[47]
Moreover, while the Liga may be deemed a government
organization, it is not strictly a local government unit over which
the DILG has supervisory power.[48]
Meanwhile, on 24 September 1998, James Marty L. Lim, the
newly elected President of the National Liga, filed a Motion for
Leave to File Comment in Intervention,[49] with his Comment in
Intervention attached,[50] invoking the validity of the DILGs actions
relative to the conduct of the Liga elections.[51] In addition, he
sought the dismissal of the instant petition on the following
grounds: (1) the issue of validity or invalidity of the questioned
order has been rendered moot and academic by the election
of Liga officers; (2) the turn-over of the administration and
management of Liga affairs to the Liga officers; and (3) the
recognition
and
acceptance
by
the
members
of
the Liga nationwide.[52]
In the interim, another petition, this time for Prohibition with
Prayer for a Temporary Restraining Order, [53] was filed by several
presidents of Liga Chapters, praying that this Court declare the
DILG Secretary and Undersecretary are not vested with any
constitutional or legal power to exercise control or even supervision
over the National Liga ng mga Barangay, nor to take over the
functions of its officers or suspend its constitution; and declare void
any and all acts committed by respondents therein in connection
with their caretakership of the Liga.[54]The petition was consolidated
with G.R. No. 130775, but it was eventually dismissed because the
petitioners failed to submit an affidavit of service and proof of
service of the petition.[55]
Meanwhile, on 01 December 1998, petitioner David died and
was substituted by his legal representatives.[56]

Petitioners have raised a number of issues.[57] Integrated and

simplified, these issues boil down to the question of whether or not
respondent Judge acted with grave abuse of discretion in
appointing the DILG as interim caretaker to administer and manage
the affairs of the National Liga Board, per its order dated 04 August
1997.[58] In turn, the resolution of the question of grave abuse of
discretion entails a couple of definitive issues, namely: (1) whether
the Liga ng mga Barangay is a government organization that is
subject to the DILG Secretarys power of supervision over local
governments as the alter ego of the President, and (2) whether the
respondent Judges designation of the DILG as interim caretaker of
the Liga has invested the DILG with control over the Liga and
whether DILG Memorandum Circular No. 97-176, issued before it
was designated as such interim caretaker, and DILG Memorandum
Circular No. 97-193 and other acts which the DILG made in its
capacity as interim caretaker of the Liga, involve supervision or
control of the Liga.
However, the Court should first address the question of
mootness which intervenor Lim raised because, according to him,
during the pendency of the present petition a general election was
held; the new set of officers and directors had assumed their
positions; and that supervening events the DILG had turned-over
the management and administration of the Liga to newLiga officers
and directors.[59] Respondent Rayos has joined him in this regard.
[60]
Forthwith, the Court declares that these supervening events
have not rendered the instant petition moot, nor removed it from
the jurisdiction of this Court.
This case transcends the elections ordered and conducted by
the DILG as interim caretaker of the Liga and the Liga officers and
directors who were elected to replace petitioner David and the
former officers. At the core of the petition is the validity of the
DILGs caretakership of the Liga and the official acts of the DILG as
such caretaker which exceeded the bounds of supervision and were
exercise of control. At stake in this case is the realization of the
constitutionally ensconced principle of local government autonomy;
[61]
the statutory objective to enhance the capabilities of barangays
and municipalities by providing them opportunities to participate
actively in the implementation of national programs and projects;
[62]
and the promotion of the avowed aim to ensure the
independence and non-partisanship of the Liga ng mga
Barangay. The mantle of local autonomy would be eviscerated and
remain an empty buzzword if unconstitutional, illegal and
unwarranted intrusions in the affairs of the local governments are
tolerated and left unchecked.

Indeed, it is the declared policy of the State that its territorial

and political subdivisions should enjoy genuine meaningful local
autonomy to enable them to attain their fullest development as
self-reliant communities and make them more effective partners in
the attainment of national goals.[63] In the case of De Leon v.
Esguerra,[64] the Court ruled that even barangays are meant to
possess genuine and meaningful local autonomy so that they may
develop fully as self-reliant communities.[65]
Furthermore, well-entrenched is the rule that courts will decide
a question otherwise moot and academic if it is capable of
repetition, yet evading review.[66] For the question of whether the
DILG may validly be appointed as interim caretaker, or assume a
similar position and perform acts pursuant thereto, is likely to
resurrect again, and yet the question may not be decided before
the actual assumption, or the termination of said assumption even.
So too, dismissing the petition on the ground of mootness
could lead to the wrong impression that the challenged order and
issuances are valid. Verily, that does not appear to be the correct
conclusion to make since by applying opposite precedents to the
issues the outcome points to invalidating the assailed order and
memorandum circulars.
The resolution of the issues of whether the Liga ng mga
Barangay is subject to DILG supervision, and whether the
questioned caretakership order of the respondent judge and the
challenged issuances and acts of the DILG constitute control in
derogation of the Constitution, necessitates a brief overview of
the barangay, as the lowest LGU, and the Liga, as a vehicle of
governance and coordination.
As the basic political unit, the barangay serves as the primary
planning and implementing unit of government policies, plans,
programs, projects and activities in the community, and as a forum
wherein the collective views of the people may be expressed,
crystallized and considered, and where disputes may be amicably
settled.[67]
On the other hand, the Liga ng mga Barangay[68] is the
organization of all barangays, the primary purpose of which is the
determination of the representation of the Liga in thesanggunians,
and the ventilation, articulation, and crystallization of issues
affecting barangay government
administration
and
securing
solutions thereto, through proper and legal means. [69]The Liga ng
mga Barangay shall have chapters at the municipal, city and
provincial and metropolitan political subdivision levels. [70] The
municipal and city chapters of the Liga are composed of

the barangay representatives from the municipality or city

concerned. The presidents of the municipal and city chapters of
the Liga form the provincial or metropolitan political subdivision
chapters of the Liga. The presidents of the chapters of the Liga in
highly urbanized cities, provinces and the Metro Manila area and
other
metropolitan
political
subdivisions
constitute
the
National Liga ng mga Barangay.[71]
As
conceptualized
in the
Local
Government
Code,
the barangay is positioned to influence and direct the development
of the entire country. This was heralded by the adoption of the
bottom-to-top approach process of development which requires the
development plans of the barangay to be considered in the
development plans of the municipality, city or province, [72]whose
plans in turn are to be taken into account by the central
government[73] in its plans for the development of the entire
country.[74] The Liga is the vehicle assigned to make this new
development approach materialize and produce results.
The presidents of the Liga at the municipal, city and provincial
levels,
automatically
become ex-officio members
of
the Sangguniang
Bayan,
Sangguniang
Panlungsod and Sangguniang Panlalawigan, respectively. They shall
serve as such only during their term of office as presidents of
the Liga chapters, which in no case shall be beyond the term of
office of the sanggunianconcerned.[75]
The Liga ng mga Barangay has one principal aim, namely: to
promote the development of barangays and secure the general
welfare of their inhabitants.[76] In line with this, the Liga is granted
the following functions and duties:
a) Give priority to programs designed for the total
development of the barangays and in consonance with
the policies, programs and projects of the national
government;
b) Assist in the education of barangay residents for
peoples participation in local government administration
in order to promote untied and concerted action to
achieve country-wide development goals;
c) Supplement the efforts of government in creating
gainful employment within the barangay;
d) Adopt measures to promote the welfare of barangay
officials;

e) Serve as forum of the barangays in order to forge

linkages with government and non-governmental
organizations and thereby promote the social, economic
and political well-being of the barangays; and

The National Liga Board of Directors promulgated the rules for

the conduct of its Ligas general elections.[79] And, as early as 28
April 1997, the Liga National Chapter had already scheduled its
general elections on 14 June 1997.[80]

f) Exercise such other powers and perform such other

duties and functions which will bring about stronger ties
between barangays and promote the welfare of the
barangay inhabitants.[77]

The controlling provision on the issues at hand is Section 4,

Article X of the Constitution, which reads in part:

The Ligas are primarily governed by the provisions of the Local

Government Code. However, they are empowered to make their
own constitution and by-laws to govern their operations. Sec. 507
of the Code provides:
Sec. 507. Constitution and By-Laws of the Liga and the Leagues. All other matters not herein otherwise provided for affecting the
internal organization of the leagues of local government units shall
be governed by their respective constitution and by-laws which are
hereby made suppletory to the provision of this Chapter: Provided,
That said Constitution and By-laws shall always conform to the
provision of the Constitution and existing laws.
Pursuant to the Local Government Code, the Liga ng mga
Barangay adopted its own Constitution and By-Laws. It provides
that the corporate powers of the Liga, expressed or implied, shall
be vested in the board of directors of each level of the Liga which
shall:
a) Have jurisdiction over all officers, directors and committees of
the said Liga; including the power of appointment, assignment and
delegation;

Sec. The President of the Philippines shall exercise general

supervision over local governments.
The 1935, 1973 and 1987 Constitutions uniformly differentiate
the Presidents power of supervision over local governments and his
power of control of the executive departments bureaus and offices.
[81]
Similar to the counterpart provisions in the earlier Constitutions,
the provision in the 1987 Constitution provision has been
interpreted to exclude the power of control.[82]
In the early case of Mondano v. Silvosa, et al.,[83] this Court
defined supervision as overseeing, or the power or authority of an
officer to see that subordinate officers perform their duties, and to
take such action as prescribed by law to compel his subordinates to
perform their duties. Control, on the other hand, means the power
of an officer to alter or modify or nullify or set aside what a
subordinate officer had done in the performance of his duties and
to substitute the judgment of the former for that of the latter.
[84]
In Taule v. Santos,[85] the Court held that the Constitution permits
the President to wield no more authority than that of checking
whether a local government or its officers perform their duties as
provided by statutory enactments.[86] Supervisory power, when
contrasted with control, is the power of mere oversight over an
inferior body; it does not include any restraining authority over
such body.[87]

b) Have general management of the business, property, and funds

of said Liga;

The case of Drilon v. Lim[88] clearly defined the extent of

supervisory power, thus:

c) Prepare and approve a budget showing anticipated receipts and

expenditures for the year, including the plans or schemes for
funding purposes; and

The supervisor or superintendent merely sees to it that the rules

are followed, but he himself does not lay down such rules, nor does
he have the discretion to modify or replace them. If the rules are
not observed, he may order the work done or re-done but only to
conform to the prescribed rules. He may not prescribe his own
manner for the doing of the act. He has no judgment on this matter
except to see that the rules are followed[89]

d) Have the power to suspend or remove from office any officer or

member of the said board on grounds cited and in the manner
provided in hereinunder provisions.[78]

In Section 4, Article X of the Constitution applicable to the Liga

ng mga Barangay? Otherwise put, is the Liga legally susceptible to
DILG suspension?
This question was resolved in Bito-Onon v. Fernandez,[90] where
the Court ruled that the Presidents power of the general
supervision, as exercised therein by the DILG Secretary as hisalter
ego, extends to the Liga ng mga Barangay.
Does the Presidents power of general supervision extend to the liga
ng mga barangay, which is not a local government unit?
We rule in the affirmative. In Opinion No. 41, Series of 1995, the
Department of Justice ruled that the liga ng mga barangay is a
government organization, being an association, federation, league
or union created by law or by authority of law, whose members are
either appointed or elected government officials. The Local
Government Code defines the liga ng mga barangay as an
organization of all barangays for the primary purpose of
determining the representation of the liga in the sanggunians, and
for ventilating, articulating and crystallizing issues affecting
barangay government administration and securing, through proper
and legal means, solutions thereto.[91]
The rationale for making the Liga subject to DILG supervision is
quite evident, whether from the perspectives of logic or of
practicality. The Liga is an aggroupment of barangays which are in
turn represented therein by their respective punong barangays. The
representatives of the Liga sit in an ex officio capacity at the
municipal, city and provincial sanggunians. As such, they enjoy all
the powers and discharge all the functions of regular municipal
councilors, city councilors or provincial board members, as the case
may
be. Thus,
the Liga is
the
vehicle
through
which
the barangay participates in the enactment of ordinances and
formulation of policies at all the legislative local levels higher than
the sangguniang barangay, at the same time serving as the
mechanism for the bottom-to-top approach of development.
In the case at bar, even before the respondent Judge
designated the DILG as interim caretaker of the Liga, on 28 July
1997, it issued Memorandum Circular No. 97-176, directing local
government
officials
not
to
recognize
David
as
the
National Liga President and his pronouncements relating to the
affairs of the Liga. Not only was the action premature, it even
smacked of superciliousness and injudiciousness. The DILG is the
topmost government agency which maintains coordination with,

and exercises supervision over local government units and its

multi-level leagues. As such, it should be forthright, circumspect
and supportive in its dealings with the Ligas especially the Liga ng
mga Barangay. The indispensable role played by the latter in the
development of the barangays and the promotion of the welfare of
the inhabitants thereof deserve no less than the full support and
respect of the other agencies of government. As the Court held in
the case of San Juan v. Civil Service Commission, [92] our national
officials should not only comply with the constitutional provisions
on local autonomy but should also appreciate the spirit of liberty
upon which these provisions are based. [93]
When the respondent judge eventually appointed the DILG as
interim caretaker to manage and administer the affairs of
the Liga, she effectively removed the management from the
National Liga Board and vested control of the Liga on the
DILG. Even a cursory glance at the DILGs prayer for appointment as
interim caretaker of the Liga to manage and administer the
affairs of the Liga, until such time that the new set of
National Liga officers shall have been duly elected and assumed
office reveals that what the DILG wanted was to take control over
the Liga. Even if said caretakership was contemplated to last for a
limited time, or only until a new set of officers assume office, the
fact remains that it was a conferment of control in derogation of the
Constitution.
With his Department already appointed as interim caretaker of
the Liga, Secretary Barbers nullified the results of the Liga elections
and promulgated DILG Memorandum Circular No. 97-193 dated 11
August 1997, where he laid down the supplemental guidelines for
the 1997 synchronized elections of the provincial and metropolitan
chapters and for the election of the national chapter of the Liga ng
mga Barangay; scheduled dates for the new provincial,
metropolitan and national chapter elections; and appointed
respondent Rayos as president of Liga-Caloocan Chapter.
These acts of the DILG went beyond the sphere of general
supervision and constituted direct interference with the political
affairs, not only of the Liga, but more importantly, of the barangay
as an institution. The election of Liga officers is part of the Ligas
internal organization, for which the latter has already provided
guidelines. In succession, the DILG assumed stewardship and
jurisdiction over the Liga affairs, issued supplemental guidelines for
the election, and nullified the effects of the Liga-conducted
elections. Clearly, what the DILG wielded was the power of control
which even the President does not have.

Furthermore, the DILG assumed control when it appointed

respondent Rayos as president of the Liga-Caloocan Chapter prior
to the newly scheduled general Liga elections, although petitioner
Davids term had not yet expired. The DILG substituted its choice,
who was Rayos, over the choice of majority of the punong
barangay of Caloocan, who was the incumbent President, petitioner
David. The latter was elected and had in fact been sitting as an exofficio member of the sangguniang panlungsod in accordance with
the Liga Constitution and By-Laws. Yet, the DILG extended the
appointment to respondent Rayos although it was aware that the
position was the subject of a quo warranto proceeding instituted by
Rayos himself, thereby preempting the outcome of that case. It was
bad enough that the DILG assumed the power of control, it was
worse when it made use of the power with evident bias and
partiality.
As the entity exercising supervision over the Liga ng mga
Barangay, the DILGs authority over the Liga is limited to seeing to
it that the rules are followed, but it cannot lay down such rules
itself, nor does it have the discretion to modify or replace them. In
this particular case, the most that the DILG could do was review the
acts of the incumbent officers of the Liga in the conduct of the
elections to determine if they committed any violation of the Ligas
Constitution and By-laws and its implementing rules. If the
National Liga Board and its officers had violatedLiga rules, the DILG
should have ordered the Liga to conduct another election in
accordance with the Ligas own rules, but not in obeisance to DILGdictated guidelines. Neither had the DILG the authority to remove
the incumbent officers of the Liga and replace them, even
temporarily, with unelected Liga officers.
Like the local government units, the Liga ng mga Barangay is
not subject to control by the Chief Executive or his alter ego.
In
the Bito-Onon[94] case,
this
Court held
that
DILG
Memorandum Circular No. 97-193, insofar as it authorized the filing
of a petition for review of the decision of the Board of Election
Supervisors (BES) with the regular courts in a post-proclamation
electoral protest, involved the exercise of control as it in effect
amended the guidelines already promulgated by the Liga.The
decision reads in part:
xxx. Officers in control, lay down the rules in the doing of an act. If
they are not followed, it is discretionary on his part to order the act
undone or redone by his subordinate or he may even decide to do it
himself. Supervision does not cover such authority. Supervising
officers merely see to it that the rules are followed, but he himself

does not lay down such rules, nor does he have the discretion to
modify or replace them. If the rules are not observed, he may order
the work done or re-done to conform for to the prescribed rules. He
cannot prescribe his own manner the doing of the act.
xxx
xxx. The amendment of the GUIDELINES is more than an exercise
of the power of supervision but is an exercise of the power of
control, which the President does not have over the LIGA. Although
the DILG is given the power to prescribe rules, regulations and
other issuances, the Administrative Code limits its authority to
merely monitoring compliance by local government units of such
issuances. To monitor means to watch, observe or check and is
compatible with the power of supervision of the DILG Secretary
over local governments, which is limited to checking whether the
local government unit concerned or the officers thereof perform
their duties as per statutory enactments. Besides, any doubt as to
the power of the DILG Secretary to interfere with local affairs
should be resolved in favor of the greater autonomy of the local
government.[95]
In Taule,[96] the Court ruled that the Secretary of Local
Government had no authority to pass upon the validity or regularity
of the election of officers of katipunan ng mga barangay or
barangay councils. In that case, a protest was lodged before the
Secretary of Local Government regarding several irregularities in,
and seeking the nullification of, the election of officers of the
Federation of Associations of Barangay Councils (FABC) of
Catanduanes. Then Local Government Secretary Luis Santos issued
a resolution nullifying the election of officers and ordered a new
one to be conducted. The Court ruled:
Construing the constitutional limitation on the power of general
supervision of the President over local governments, We hold that
respondent Secretary has no authority to pass upon the validity or
regularity of the officers of the katipunan. To allow respondent
Secretary to do so will give him more power than the law or the
Constitution grants. It will in effect give him control over local
government officials for it will permit him to interfere in a purely
democratic and non-partisan activity aimed at strengthening the
barangay as the basic component of local governments so that the
ultimate goal of fullest autonomy may be achieved. In fact, his
order that the new elections to be conducted be presided by the
Regional Director is a clear and direct interference by the

Department with the political affairs of the barangays which is not

permitted by the limitation of presidential power to general
supervision over local governments.[97]

Id. at 106.

[10]

Id. at 10.

[11]

Id. at 116-119.

[12]

Id. at 118.

[13]

Id. at 123-124.

[14]

Id. at 125.

[15]

Id. at 140-140-A.

[16]

Id. at 140-A.

[17]

Ibid.

[18]

Id. at 35-38.

[19]

Id. at 37.

No pronouncements as to costs.

[20]

Id. at 37-38.

SO ORDERED.

[21]

Id. at 38.

[22]

Id. at 13; RTC Records, pp. 285-297.

[23]

Id. at 294.

[24]

Rollo, pp. 134-139.

[25]

Id. at 133.

[26]

Ibid. at 133.

[27]

Id. at 346-347.

[28]

Id. at 39-42.

[29]

Id. at 40-A.

[30]

Id. at 2-33.

[31]

Id. at 17-18.

[32]

Sec. 507. Constitution and By-Laws of the Liga and the Leagues.
- All other matters not herein otherwise provided for
affecting the internal organization of the leagues of local
government units shall be governed by their respective
constitution and by-laws which are hereby made suppletory
to the provision of this Chapter: Provided, that said
Constitution and By-laws shall always conform to the
provisions of the Constitution and existing laws.

All given, the Court is convinced that the assailed order was
issued with grave abuse of discretion while the acts of the
respondent Secretary, including DILG Memorandum Circulars No.
97-176 and No. 97-193, are unconstitutional and ultra vires, as they
all entailed the conferment or exercise of control a power which is
denied by the Constitution even to the President.
WHEREFORE, the Petition is GRANTED. The Order of the
Regional Trial Court dated 04 August 1997 is SET ASIDE for having
been issued with grave abuse of discretion amounting to lack or
excess of jurisdiction. DILG Memorandum Circulars No. 97-176 and
No. 97-193, are declared VOID for being unconstitutional and ultra
vires.

Davide, Jr., C.J., Puno, Panganiban, Quisumbing, YnaresSantiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona,
Carpio-Morales, Callejo, Sr., and Azcuna, JJ., concur.
Chico-Nazario, J., on leave.

[1]

[9]

Rollo, p. 43. The petition was docketed as Special Civil Action No.
C-508, raffled to Branch 124 of the RTC of Caloocan.

[2]

Id. at 44.

[3]

Id. at 45.

[4]

Ibid.

[5]

Id. at 50. Both the presiding judge of Branch 124, and pairing
judge were on official leave, thus the Petition was referred to
the Executive Judge, Bayani S. Rivera.

[6]

Id. at 58.

[7]

Id. at 52-61, the petition was docketed as Special Civil Action No.
C-512 and raffled to Branch 126 of the RTC-Caloocan
presided by Judge Luisito C. Sardillo.

[8]

Id. at 71-74.

[33]

Rollo, p. 19.

[59]

Rollo, p. 360.

[34]

Constitution, Art. X, Sec. 4. The President of the Philippines shall

exercise general supervision over local governments.

[60]

Id. at 496-497.

[61]

CONST., Art. II, Sec. 25.

[62]

Local Government Code, Sec.3 (9). Also Secs. 3(h)(k) & (l):

[35]

Rollo, p. 20.

[36]

Id. at 24.

[37]

Ibid. at 24.

[38]

Id. at 25.

[39]

Ibid.

[40]

G.R. No. 90336, 12 August 1991, 200 SCRA 512.

[41]

Rollo, pp. 2-3, citing Taule v. Santos, at pp. 515, 522.

[42]

Id. at 484-485.

[43]

Id. at 487.

[44]

Id. at 488.

[45]

Art. 9. No judge or court shall decline to render judgment by

reason of the silence, obscurity or insufficiency of the laws.

(h) There shall be a continuing mechanism to enhance local

autonomy not only by legislative enabling acts but also by
administrative and organizational reforms;
(k) The realization of local autonomy shall be facilitated through
improved coordination of national government policies and
programs and extension of adequate technical and material
assistance to less developed and deserving local
government units;
(l) The participation of the private sector in local governance,
particularly in the delivery of basic services, shall be
encouraged to ensure the viability of local autonomy as an
alternative strategy for sustainable development;
[63]

Section 2, Local Government Code.

[64]

No. L-78059, 31 August 1987, 153 SCRA 602.

[46]

Rollo, p. 253.

[65]

Supra note 59 at 606.

[47]

Id. at 254.

[66]

[48]

Id. at 254.

[49]

Id. at 336-340.

[50]

Id. at 341-399.

Alunan III v. Mirasol, G.R. No. 108399, 31 July 1997, 276 SCRA
501, 509-510, cited in SANLAKAS v. Executive Secretary, et
al. G.R. Nos. 159085, 159103, 159185, 159196, 3 February
2004; Viola v. Alunan III, G.R. No. 115844, 15 August 1997,
277 SCRA 409,416.

[51]

Id. at 359.

[67]

Section 384, Local Government Code.

[68]

The forerunner of the liga ng mga barangay is the katipunan ng

mga barangay under Section 108 of B.P. Blg. 337, which was
known as the katipunan bayan in municipalities, katipunang
panglungsod in cities, katipunang panlalawigan in provinces,
and katipunang ng mga barangay on the national
level. Each
barangay
therein
was
represented
by
the punong barangay. The katipunang bayan was also
referred to as the Association of Barangay councils or ABC
for short. Pursuant to the first paragraph of Section 146 of
B.P. 337, the president of the said organization was among
the members of the sangguniang bayan the legislative body
of the municipalitysubject, however, to appointment by the
President of the Philippines, p. 739, 227 SCRA, as indicated

[52]

Id. at 360.

[53]

Entitled Leandro Yangot, Bonifacio Lacwasan and Bony Tacio v.

DILG Secretary Robert Barbers and DILG Undersecretary
Manuel Sanchez docketed as G.R. No. 131939.

[54]

G.R. No. 131939, Rollo, p. 9.

[55]

Id. at 315, G.R. No. 130775.

[56]

Id. at 410.

[57]

Rollo, pp. 13-14; pp. 513-514.

[58]

See Rollo, p. 433.

Galarosa v. Valencia, G.R. No. 109455, November 11, 1993,

227 SCRA 728, 729.
[69]
[70]
[71]
[72]

[92]

G.R. No. 92299, 19 April 1991, 196 SCRA 69, 80.

[93]

Section 491, Local Government Code.

Ibid.

[94]

Supra note 86.

Section 492, Local Government Code.

[95]

Ibid.

Id. at 740.

[96]

Supra note 81.

See Sec. 106, Local Government Code.

[97]

Taule v. Santos, p. 522.

[73]

See Sec. 114, Local Government Code.

[74]

Pimentel, Jr., A.Q., The Barangay and the Local Government

Code, p. vi.

[75]

Section 494 of the Local Government Code.

[76]

Galarosa v. Valencia, supra note 68; citing Pimentel, Jr., A.Q., The
Local Government Code of 1991, The Key to National
Development, p. 552 (1993).

[77]

Section 495 of the Local Government Code.

[78]

Rollo, p. 387.

[79]

Implementing Rules and Guidelines for the 1997 General

Elections of the Liga ng mga Barangay Officers and
Directors, Rollo, pp. 101-194.

[80]

Rollo, p. 101.

[81]

See 1935 CONST., Art. IV, Sec. 10; 1973 CONST., Art. VIII, Sec.
10; 1987 CONST., Art. VII, Sec. 17 and Art. X, Sec. 4.

[82]

Pimentel, Jr. v. Aguirre, G.R. No. 132988, 19 July 2000, 336 SCRA
201.

[83]

No. L-7708, 97 Phil. 143, (1995).

[84]

Id. at 148.

[85]

G.R. No. 90336, 12 August 1991, 200 SCRA 512.

[86]

Id. at 522.

[87]

Id. at 522, citing Hebron v. Reyes, 104 Phil. 175 (1958).

[88]

G.R. No. 112497, 4 August 1994, 235 SCRA 135, 137.

[89]

Id. at 142.

[90]

G.R. No. 139813, 31 January 2001; 350 SCRA 732.

[91]

Id. at 738.

FIRST DIVISION

[G.R. No. 131442. July 10, 2003]

BANGUS FRY FISHERFOLK DIWATA MAGBUHOS, ANGELITA

BINAY, ELMA GARCIA, VIRGILIO PANGUIO, ARSENIO
CASTILLO, ARIEL PANGUIO, ANTONIO PANGUIO,
ANTONIO BUNQUIN, GENEROSO BUNQUIN, CHARLIE
DIMAYACYAC, RENATO PANGUIO, ATILANO BUNQUIN,
CARLOS CHAVEZ, JUAN DIMAYACYAC, FILEMON
BUNQUIN, MARIO MAGBUHOS, MAURO MAGBUHOS,
NORA MAGBUHOS, JEOVILYN, GENALYN and JORVAN
QUIMUEL, minors, represented by their parents
FELICIANA
and
SABINO
QUIMUEL,
MARICAR
MAGBUHOS,
minor,
represented
by
her
parents CARMELITA
and
ANTONIO
MAGBUHOS,
MARLO BINAY, minor, represented by his parents
EFRENITA and CHARLITO BINAY, and the BANGUS,
BANGUS FRY and other MARINE LIFE OF MINOLO
COVE, petitioners,
vs. THE
HONORABLE
ENRICO
LANZANAS as Judge of the Regional Trial Court of
Manila,
Branch
VII,
THE
DEPARTMENT
OF
ENVIRONMENT AND NATURAL RESOURCES Region IV,
represented by its Regional Executive Director and
its Regional Director for Environment, THE NATIONAL
POWER CORPORATION, ORIENTAL MINDORO ELECTRIC
COOPERATIVE,
PROVINCIAL
GOVERNMENT
OF
ORIENTAL
MINDORO,
herein
represented
by
GOVERNOR RODOLFO VALENCIA, PUERTO GALERA
MAYOR GREGORIO DELGADO, VICE MAYOR ARISTEO
ATIENZA, and MEMBERS OF THE SANGGUNIANG
BAYAN OF PUERTO GALERA, JUAN ASCAN, JR., RAFAEL

ROMEY, CENON SALCEDO, JERRY DALISAY, SIMON

BALITAAN, RENATO CATAQUIS, MARCELINO BANAAG,
DANIEL ENRIQUEZ, AMELYN MARCO, GABRIEL ILAGAN,
MUNICIPAL ENGINEER RODEL RUBIO, and MUNICIPAL
PLANNING
and
DEVELOPMENT
COORDINATOR
WILHELMINA LINESES, respondents.
DECISION
CARPIO, J.:

The Case
This is a petition for review [1] of the Order[2] dated 7 November
1997 of the Regional Trial Court of Manila, Branch 7 (Manila RTC),
dismissing petitioners complaint for lack of cause of action and lack
of jurisdiction.

The Facts
On 30 June 1997, Regional Executive Director Antonio G.
Principe (RED Principe) of Region IV, Department of Environment
and Natural Resources (DENR), issued an Environmental Clearance
Certificate (ECC) in favor of respondent National Power Corporation
(NAPOCOR). The ECC authorized NAPOCOR to construct a
temporary mooring facility in Minolo Cove, Sitio Minolo, Barangay
San Isidro, Puerto Galera, Oriental Mindoro. The Sangguniang
Bayan of Puerto Galera has declared Minolo Cove, a mangrove area
and breeding ground for bangus fry, an eco-tourist zone.[3]
The mooring facility would serve as the temporary docking site
of NAPOCORs power barge, which, due to turbulent waters at its
former mooring site in Calapan, Oriental Mindoro, required
relocation to a safer site like Minolo Cove. The 14.4 megawatts
power barge would provide the main source of power for the entire
province of Oriental Mindoro pending the construction of a landbased power plant in Calapan, Oriental Mindoro. The ECC for the
mooring facility was valid for two years counted from its date of
issuance or until 30 June 1999.[4]
Petitioners, claiming to be fisherfolks from Minolo, San Isidro,
Puerto Galera,[5] sought reconsideration of the ECC issuance. RED

Principe, however, denied petitioners plea on 15 July 1997. On 21

July 1997, petitioners filed a complaint with the Regional Trial Court
of Manila, Branch 7, for the cancellation of the ECC and for the
issuance of a writ of injunction to stop the construction of the
mooring facility. Impleaded as defendants were the following: (1)
NAPOCOR, (2) RED Principe, (3) DENR Region IV Technical Director
for Environment Oscar Dominguez, (4) Oriental Mindoro Electric
Cooperative (ORMECO), which is engaged in the distribution of
electricity in Oriental Mindoro, and (5) certain officials of Puerto
Galera.[6]Petitioners subsequently amended their complaint to
include as additional defendants the elective officials of Oriental
Mindoro
represented
by
then
Governor
Rodolfo
G.
Valencia.Petitioners further prayed for the demolition of mooring
structures that respondents had already built.
On 28 July 1997, prior to the filing of the amended complaint,
the trial court issued a 20-day temporary restraining order
enjoining the construction of the mooring facility. However, the trial
court lifted the same on 6 August 1997 on NAPOCORs
manifestation that the provincial government of Oriental Mindoro
was the one undertaking the construction of the mooring facility. [7]
On 28 August 1997, before filing their answers, respondents
ORMECO and the provincial officials of Oriental Mindoro moved to
dismiss the complaint. These respondents claimed that petitioners
failed to exhaust administrative remedies, rendering the complaint
without cause of action. They also asserted that the Manila RTC has
no jurisdiction to enjoin the construction of the mooring facility in
Oriental Mindoro, which lies outside the Manila RTCs territorial
jurisdiction.
Petitioners opposed the motion on the ground that there was
no need to exhaust administrative remedies. They argued that the
issuance of the ECC was in patent violation of Presidential Decree
No. 1605,[8] Sections 26 and 27 of Republic Act No. 7160, [9] and the
provisions of DENR Department Administrative Order No. 96-37
(DAO 96-37) on the documentation of ECC applications. Petitioners
also claimed that the implementation of the ECC was in patent
violation of its terms.
In its order of 7 November 1997, the trial court granted the
motion and dismissed petitioners complaint.
Hence, this petition.

The Ruling of the Trial Court

The trial courts order dismissing the complaint reads in part:

After careful evaluation and analysis, this Court finds the Motion to
Dismiss tenable and meritorious.
Petitioners have clearly failed to exhaust all administrative
remedies before taking this legal action in Court x x x.
It is x x x worth mentioning that the decision of the Regional
Director may still be x x x elevated to the Office of the Secretary of
the DENR to fully comply with the process of exhaustion of
administrative remedies. And well settled is the rule in our
jurisdiction that before bringing an action in or resorting to the
Courts of Justice, all remedies of administrative character affecting
or determinative of the controversy at that level should first be
exhausted by the aggrieved party (Pestanas vs. Dyogi, L-25786,
February 27, 1978). And petitioners failure to exhaust
administrative remedies renders his [sic] petition dismissible (Chia
vs. Acting Collector of Customs, 177 SCRA 755). And a dismissal on
the ground of failure to exhaust administrative remedies is
tantamount to a dismissal based on lack of cause of action (Baguiro
vs. Basa, Jr., 214 SCRA 437; Pineda vs. CFI of Davao, 111 Phil. 643;
Sarabia vs. Secretary of Agriculture & Natural Resources, L-16002,
May 23, 1961; Gone, et al. vs. District Engineer, et. al., L-22782,
August 29, 1975; Abe-Abe, et al. vs. Manta, et. al., L-4827, May 31,
1979) although it does not affect the jurisdiction of the court over
the subject matter (Mun. of La Trinidad, et al. vs. CFI of BaguioBenguet, et al., L-33889, June 28, 1983).

jurisdiction of this Court but not for acts which are being or about to
be committed outside its territorial jurisdiction. Thus, in Philippine
National Bank vs. Pineda, 197 SCRA 1, the Honorable Supreme
Court ruled: Regional Trial Courts can only enforce their writs of
injunction within their respective designated
territories. Furthermore, we find the issuance of the preliminary
injunction directed against the Provincial Sheriff of Negros
Occidental a jurisdictional paux [sic] pas (from Black Dictionary
means jurisdictional falsity) as the Courts of First Instance now
Regional Trial Court[s], can only enforce their writs of injunction
within their respective designated territories.
And finally, this Court is not unmindful of the relevant and square
application in the case at bar of Presidential Decree No. 1818,
Executive Order No. 380 dated November 27, 1989, and Circular
No. 2-91 of the Supreme Court that the National Power Corporation
(NPC) is a public utility, created under special legislation, engaged
in the generation and distribution of electric power and energy. The
mooring site of NPC in Puerto Galera, Oriental Mindoro is one of its
infrastructure projects falling within the mantle of Executive Order
No. 380, November 27, 1989 x x x.
And as held by the Supreme Court in the case of National Power
Corporation vs. Honorable Abraham P. Vera, et al., 170 SCRA 721,
courts are without jurisdiction to issue injunctive writs against [the]
National Power Corporation. The latter enjoys the protective mantle
of P.D. 1818, (Circular No. 2-91).
xxx

Moreover, this Court finds the Opposition of the Petitioners highly

untenable and bereft of merits that the controverted act in question
is patently illegal and there was an immediate need for judicial
intervention.
The ECC in question was issued by the Regional Office of the DENR
which has jurisdiction and authority over the same x x x. And
corollary to this, the issue as to whether or not the Minolo Cove is
within the enclosed coves and waters embraced by Puerto Galera
bay and protected by Medio island is a clear question of fact which
the DENR may appropriately resolve before resorting to [the]
Court[s].
This Court is likewise aware and cognizant of its territorial
jurisdiction in the enforcement of Writ of Injunction. That truly, [a]
writ of injunction can only be enforced within [the] territorial

Injunction in this case is not a mere ancillary [sic] writ but the main
action itself together with the Annulment of the Environmental
Clearance Certificate (ECC). Even assuming arguendo that the
court [can] annul the ECC how can the latter enforce the same
against the Provincial Government of Oriental Mindoro which was
impleaded by the petitioners as a necessary party together with
the Oriental Mindoro Electric Cooperative and the government
officials of Puerto Galera, Oriental Mindoro, whose acts and
functions are being performed outside the territorial jurisdiction of
this court? x x x Indisputably, the injunction and annulment of ECC
as prayed for in the petition are inseparable x x x.
The conclusion, therefore, is inescapable that petitioners have
failed to exhaust all the available administrative remedies and this

Court has no jurisdiction to issue the injunctive writ prayed for in

the Amended [Complaint].[10]

The Issue
The issue is whether the trial court erred in dismissing
petitioners complaint for lack of cause of action and lack of
jurisdiction.

The Ruling of the Court

The petition has no merit.

Jurisdiction of the Manila RTC over the Case

Jurisdiction over the subject matter of a case is conferred by
law. Such jurisdiction is determined by the allegations in the
complaint, irrespective of whether the plaintiff is entitled to all or
some of the reliefs sought.[11]
A perusal of the allegations in the complaint shows that
petitioners principal cause of action is the alleged illegality of the
issuance of the ECC. The violation of laws on environmental
protection and on local government participation in the
implementation of environmentally critical projects is an issue that
involves the validity of NAPOCORs ECC. If the ECC is void, then as a
necessary consequence, NAPOCOR or the provincial government of
Oriental Mindoro could not construct the mooring facility. The
subsidiary issue of non-compliance with pertinent local ordinances
in the construction of the mooring facility becomes immaterial for
purposes of granting petitioners main prayer, which is the
annulment of the ECC. Thus, if the court has jurisdiction to
determine the validity of the issuance of the ECC, then it has
jurisdiction to hear and decide petitioners complaint.
Petitioners complaint is one that is not capable of pecuniary
estimation. It falls within the exclusive and original jurisdiction of
the Regional Trial Courts under Section 19(1) of Batas Pambansa
Blg. 129, as amended by Republic Act No. 7691. The question of
whether petitioners should file their complaint in the Regional Trial

Court of Manila or Oriental Mindoro then becomes a matter of

venue, to be determined by the residence of the parties.[12]
Petitioners main prayer is the annulment of the ECC. The
principal respondent, DENR Region IV, has its main office at the L &
S Building, Roxas Boulevard, Manila. Regional Executive Director
Principe of the DENR Region IV, who issued the ECC, holds office
there. Plainly, the principal respondent resides in Manila, which is
within the territorial jurisdiction of the Manila RTC. Thus, petitioners
filed their complaint in the proper venue.
On the other hand, the jurisdiction of Regional Trial Courts to
issue injunctive writs is limited to acts committed or about to be
committed within their judicial region. [13] Moreover, Presidential
Decree No. 1818 (PD No. 1818) prohibited [14] courts from issuing
injunctive writs against government infrastructure projects like the
mooring facility in the present case.Republic Act No. 8975 (RA No.
8975), which took effect on 26 November 2000, superseded PD No.
1818 and delineates more clearly the coverage of the prohibition,
reserves the power to issue such writs exclusively with this Court,
and provides penalties for its violation. [15] Obviously, neither the
Manila RTC nor the Oriental Mindoro RTC can issue an injunctive
writ to stop the construction of the mooring facility. Only this Court
can do so under PD No. 1818 and later under RA No. 8975. Thus,
the question of whether the Manila RTC has jurisdiction over the
complaint considering that its injunctive writ is not enforceable in
Oriental Mindoro is academic.
Clearly, the Manila RTC has jurisdiction to determine the
validity of the issuance of the ECC, although it could not issue an
injunctive writ against the DENR or NAPOCOR. However, since the
construction of the mooring facility could not proceed without a
valid ECC, the validity of the ECC remains the determinative issue
in resolving petitioners complaint.

Exhaustion of Administrative Remedies

The settled rule is before a party may seek the intervention of
the courts, he should first avail of all the means afforded by
administrative processes. Hence, if a remedy within the
administrative machinery is still available, with a procedure
prescribed pursuant to law for an administrative officer to decide
the controversy, a party should first exhaust such remedy before
resorting to the courts. The premature invocation of a courts

intervention renders the complaint without cause of action and

dismissible on such ground.[16]
RED Principe of the DENR Region IV Office issued the ECC
based on (1) Presidential Decree No. 1586 (PD No. 1586) and its
implementing rules establishing the Environmental Impact
Statement System, (2) DAO 96-37 [17] and (3) the Procedural Manual
of DAO 96-37. Section 4[18] of PD No. 1586 requires a proponent of
an environmentally critical project, or a project located within an
environmentally critical area as declared by the President, to secure
an ECC prior to the projects operation. [19] NAPOCOR thus secured
the ECC because the mooring facility in Minolo Cove, while not an
environmentally
critical
project,
is
located
within
an
environmentally critical area under Presidential Proclamation No.
2146, issued on 14 December 1981.[20]
The rules on administrative appeals from rulings of the DENR
Regional Directors on the implementation of PD No. 1586 are found
in Article VI of DAO 96-37, which provides:
SECTION 1.0. Appeal to the Office of the Secretary. Any party
aggrieved by the final decision of the RED may, within 15 days from
receipt of such decision, file an appeal with the Office of the
Secretary.The decision of the Secretary shall be immediately
executory.
SECTION 2.0. Grounds for Appeal. The grounds for appeal shall be
limited to grave abuse of discretion and serious errors in the
findings of fact which would cause grave or irreparable injury to the
aggrieved party. Frivolous appeals shall not be countenanced.
SECTION 3.0. Who May Appeal. The proponent or any stakeholder,
including but not limited to, the LGUs concerned and affected
communities, may file an appeal.
The DENR Procedural Manual for DAO 96-37 explains these
provisions thus:
Final decisions of the RED may be appealed. These decisions
include those relating to the issuance or non-issuance of an ECC,
and the imposition of fines and penalties. By inference, the decision
of the Secretary on the issuance or non-issuance of the ECC may
also be appealed based on this provision. Resort to courts prior to
availing of this remedy would make the appellants action
dismissible on the ground of non-exhaustion of administrative
remedies.

The right to appeal must be exercised within 15 days from receipt

by the aggrieved party of such decision. Failure to file such appeal
within the requisite period will result in the finality of the REDs or
Secretarys decision(s), which can no longer be disturbed.
An appeal shall not stay the effectivity of the REDs decision, unless
the Secretary directs otherwise.
The right to appeal does not prevent the aggrieved party from first
resorting to the filing of a motion for reconsideration with the RED,
to give the RED an opportunity to re-evaluate his decision.
(Emphasis added)
Instead of following the foregoing procedure, petitioners
bypassed the DENR Secretary and immediately filed their complaint
with the Manila RTC, depriving the DENR Secretary the opportunity
to review the decision of his subordinate, RED Principe. Under the
Procedural Manual for DAO 96-37 and applicable jurisprudence,
petitioners omission renders their complaint dismissible for lack of
cause of action.[21] Consequently, the Manila RTC did not err in
dismissing petitioners complaint for lack of cause of action.

On the Alleged Patent Illegality of the ECC

Petitioners nevertheless contend that they are exempt from
filing an appeal with the DENR Secretary because the issuance of
the ECC was in patent violation of existing laws and
regulations. These are (1) Section 1 of Presidential Decree No.
1605, as amended, (2) Sections 26 and 27 of Republic Act No. 7160
(Local Government Code of 1991), and (3) the provisions of DAO
96-37 on the documentary requirements for the zoning permit and
social acceptability of the mooring facility.
Petitioners contention is without merit. While the patent
illegality of an act exempts a party from complying with the rule on
exhaustion of administrative remedies,[22] this does not apply in the
present case.

Presidential Decree No. 1605

Presidential Decree No. 1605 (PD No. 1605), [23] as amended by

Presidential Decrees Nos. 1605-A and 1805, declares as ecologically
threatened zone the coves and waters embraced by Puerto Galera
Bay as protected by Medio Island. This decree provides in part:
Section 1. Any provision of law to the contrary notwithstanding, the
construction of marinas, hotels, restaurants, other commercial
structures; commercial or semi-commercial wharfs [sic];
commercial docking within the enclosed coves of Puerto Galera; the
destruction of its mangrove stands; the devastation of its corals
and coastline by large barges, motorboats, tugboat propellers, and
any form of destruction by other human activities are hereby
prohibited.
Section 2. x x x
No permit for the construction of any wharf, marina, hotel,
restaurants and other commercial structures in Puerto Galera shall
be issued without prior approval of the Office of the President upon
the recommendation of the Philippine Tourism Authority. (Emphasis
supplied)
NAPOCOR claims that since Minolo Cove lies outside of Puerto
Galera Bay as protected by Medio Island, [24] PD No. 1605 does not
apply to this case. However, petitioners assert that Minolo Cove is
one of the enclosed coves of Puerto Galera [25] and thus protected
under PD No. 1605. This is a question of fact that the DENR
Secretary should have first resolved. In any event, there is no
dispute that NAPOCOR will use the mooring facility for its power
barge that will supply 14.4 megawatts of electricity to the entire
province of Oriental Mindoro, including Puerto Galera. The mooring
facility is obviously a government-owned public infrastructure
intended to serve a basic need of the people of Oriental
Mindoro. The mooring facility is not a commercial structure;
commercial or semi-commercial wharf or commercial docking as
contemplated in Section 1 of PD No. 1605. Therefore, the issuance
of the ECC does not violate PD No. 1605 which applies only to
commercial structures like wharves, marinas, hotels and
restaurants.

Sections 26 and 27 of RA No. 7160

Congress introduced Sections 26 and 27 in the Local

Government Code to emphasize the legislative concern for the
maintenance of a sound ecology and clean environment. [26] These
provisions
require
every
national government
agency
or
government-owned and controlled corporation to hold prior
consultations with the local government unit concerned and to
secure the prior approval of its sanggunian before implementing
any project or program that may cause pollution, climatic change,
depletion of non-renewable resources, loss of cropland, rangeland,
or forest cover and extinction of animal or plant species. Sections
26 and 27 respectively provide:
Section 26. Duty of National Government Agencies in the
Maintenance of Ecological Balance. - It shall be the duty of every
national agency or government-owned or controlled corporation
authorized or involved in the planning and implementation of any
project or program that may cause pollution, climatic change,
depletion of non-renewable resources, loss of crop land, rangeland,
or forest cover and extinction of animal or plant species, to consult
with the local government units, non-governmental organizations,
and other sectors concerned and explain the goals and objectives
of the project or program, its impact upon the people and the
community in terms of environmental or ecological balance, and
the measures that will be undertaken to prevent or minimize the
adverse effects thereof.
Section 27. Prior Consultations Required. - No project or program
shall be implemented by government authorities unless the
consultations mentioned in Section x x x 26 hereof are complied
with, and prior approval of the sanggunian concerned is
obtained: Provided, That occupants in areas where such projects
are to be implemented shall not be evicted unless appropriate
relocation sites have been provided, in accordance with the
provisions of the Constitution.
In Lina, Jr. v. Pao,[27] the Court interpreted these provisions in
this manner:
Section 27 of the Code should be read in conjunction with Section
26 thereof x x x.
Thus, the projects and programs mentioned in Section 27 should be
interpreted to mean projects and programs whose effects are
among those enumerated in Sections 26 and 27, to wit, those that:
(1) may cause pollution; (2) may bring about climatic change; (3)

may cause the depletion of non-renewable resources; (4) may

result in loss of crop land, rangeland, or forest cover; (5) may
eradicate certain animal or plant species; and (6) other projects or
programs that may call for the eviction of a particular group of
people residing in the locality where these will be implemented.
Again, Sections 26 and 27 do not apply to this case because as
petitioners
admit,[28] the
mooring
facility
itself
is
not
environmentally critical and hence does not belong to any of the six
types of projects mentioned in the law. There is no statutory
requirement for the concerned sanggunian to approve the
construction of the mooring facility. It is another matter if the
operation of the power barge is at issue. As an environmentally
critical project that causes pollution, the operation of the power
barge
needs
the
prior
approval
of
the
concerned sanggunian.However, what is before this Court is only
the construction of the mooring facility, not the operation of the
power barge. Thus, the issuance of the ECC does not violate
Sections 26 and 27 of RA No. 7160.

Documentary Requirements for

ECC Applications
Under DAO 96-37, an ECC applicant for a project located within
an environmentally critical area is required to submit an Initial
Environment Examination, which must contain a brief description of
the environmental setting and a documentation of the consultative
process undertaken, when appropriate.[29] As part of the description
of the environmental setting, the ECC applicant must submit a
certificate of locational clearance or zoning certificate.
Petitioners further contend that NAPOCOR, in applying for the
ECC, did not submit to the DENR Region IV Office the documents
proving the holding of consultations and the issuance of a
locational clearance or zoning certificate. Petitioners assert that
this omission renders the issuance of the ECC patently illegal.
The contention is also without merit. While such documents are
part of the submissions required from a project proponent, their
mere absence does not render the issuance of the ECC patently
illegal. To justify non-exhaustion of administrative remedies due to
the patent illegality of the ECC, the public officer must have issued
the ECC [without any] semblance of compliance, or even an
attempt to comply, with the pertinent laws; when manifestly, the

officer has acted without jurisdiction or has exceeded his

jurisdiction, or has committed a grave abuse of discretion; or when
his act is clearly and obviously devoid of any color of authority. [30]
RED Principe, as chief of DENR Region IV, is the officer duly
authorized under DAO 96-37[31] to issue ECCs for projects located
within environmentally critical areas. RED Principe issued the ECC
on the recommendation of Amelia Supetran, the Director of the
Environmental Management Bureau. Thus, RED Principe acted with
full authority pursuant to DENR regulations. Moreover, the legal
presumption is that he acted with the requisite authority. [32] This
clothes RED Principes acts with presumptive validity and negates
any claim that his actions are patently illegal or that he gravely
abused his discretion. While petitioners may present proof to the
contrary, they must do so before the proper administrative forum
before resorting to judicial remedies.

On the Alleged Non-Compliance with the Terms of the ECC

Lastly, petitioners claim that they are justified in immediately
seeking judicial recourse because NAPOCOR is guilty of violating
the conditions of the ECC, which requires it to secure a separate
ECC for the operation of the power barge. The ECC also mandates
NAPOCOR to secure the usual local government permits, like zoning
and building permits, from the municipal government of Puerto
Galera.
The contention is similarly without merit. The fact that
NAPOCORs ECC is subject to cancellation for non-compliance with
its conditions does not justify petitioners conduct in ignoring the
procedure prescribed in DAO 96-37 on appeals from the decision of
the DENR Executive Director. Petitioners vigorously insist that
NAPOCOR should comply with the requirements of consultation and
locational clearance prescribed in DAO 96-37. Ironically, petitioners
themselves refuse to abide with the procedure for filing complaints
and appealing decisions laid down in DAO 96-37.
DAO 96-37 provides for a separate administrative proceeding
to address complaints for the cancellation of an ECC. Under Article
IX of DAO 96-37, complaints to nullify an ECC must undergo an
administrative investigation, after which the hearing officer will
submit his report to the EMB Director or the Regional Executive
Director, who will then render his decision. The aggrieved party
may file an appeal to the DENR Secretary, who has authority to
issue cease and desist orders. Article IX also classifies the types of

violations covered under DAO 96-37, including projects operating

without an ECC or violating the conditions of the ECC. This is the
applicable procedure to address petitioners complaint on
NAPOCORs alleged violations and not the filing of the instant case
in court.

[6]

Mayor Gregorio Delgado, Vice-mayor Aristeo Atienza, the

members of the Sangguniang Bayan, Municipal Health
Engineer Rodel Rubio, and Municipal Planning and
Development Officer Wilhelmina Lineses.

[7]

In view of this development, petitioners wrote respondents RED

Principe and Oscar Dominguez on 6 August 1997 requesting
the issuance of a cease and desist order to enjoin the
provincial government of Oriental Mindoro from proceeding
with the construction of the mooring facility (Rollo, p. 123).
In his letter of 7 August 1997, respondent RED Principe
informed petitioners that his office will conduct an
investigation on the matter (Rollo, p. 124).

[8]

As amended by Presidential Decree No. 1605-A.

[9]

The Local Government Code of 1991.

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

Vitug,

[10]

Rollo, pp. 45-50.

[11]

Garcia v. Court of Appeals, 339 Phil. 433 (1997).

[12]

1997 RULES OF CIVIL PROCEDURE, Rule 4, Sec. 2.

[13]

See Hacbang v. The Leyte Autobus Co., Inc., G.R No. L-17907, 30
May 1963, 8 SCRA 103, in relation to par. 3(a), Resolution,
dated 11 January 1983, providing for the interim or
transitional
rules
and
guidelines
relative
to
the
implementation of the Judiciary Act of 1981 (BP Blg. 129).

[14]

Section 1 of PD No. 1818 provides as follows:

Ynares-

[1]

While petitioners refer to the petition in this case as a petition for

certiorari under Rule 65 of the 1997 Rules of Civil Procedure,
the Court will treat it as a petition for review under Rule 45
as petitioners themselves had intended in their Motion,
dated 3 December 1997, for a 30-day extension within
which to file a petition for review of the ruling in question on
pure questions of law.

[2]

Penned by Judge Enrico A. Lanzanas.

[3]

Municipal Ordinance No. 12, dated 13 December 1991.

[4]

On 7 May 1999, respondent NAPOCOR sought an extension of the

ECC for another 18 months from 1 July 1999 or until 31
December 2000 (Rollo, p. 200). However, there is nothing in
the records to indicate the DENRs response on the request.

[5]

Joined by some minor residents and by the bangus, bangus fry,

and other marine life of Minolo Cove as co-petitioners.

No court in the Philippines shall have jurisdiction to issue any

restraining order, preliminary injunction, or preliminary
mandatory injunction in any case, dispute, or controversy
involving an infrastructure project, or a mining, fishery,
forest or other natural resource development project of the
government, or any public utility operated by the
government, including among others public utilities for the
transport of the goods or commodities, stevedoring and
arrastre contracts, to prohibit any person or persons, entity
or governmental official from proceeding with, or continuing
the execution or implementation of any such project, or the
operation of such public utility, or pursuing any lawful
activity necessary for such execution, implementation or
operation.
[15]

Section 3 of RA No. 8975 prohibits courts, except the Supreme

Court,
from
issuing
temporary
restraining orders,
preliminary
injunctions,
or
preliminary
mandatory

injunctions against the government, its agencies, or any

person or entity whether public or private, involving national
government projects, defined in Section 2 of the law as
follows:
National government projects shall refer to all current and future
national government infrastructure, engineering works and
service contracts, including projects undertaken by
government-owned and controlled corporations, all projects
covered by Republic Act No. 6957, as amended by Republic
Act No. 7718, otherwise known as the Build-Operate-andTransfer Law, and other related and necessary activities
such as site acquisition, supply and/or installation of
equipment and materials, implementation, construction,
completion, operation, maintenance, improvement, repair
and rehabilitation, regardless of the source of funding.
See also SC Administrative
November 2000.
[16]

Circular

No.

11-2000,

dated

13

Dy v. Court of Appeals, 363 Phil. 676 (1999); Pestanas v. Dyogi,

G.R. No. L-25786, 27 February 1978, 81 SCRA 574.

xxx
B. Environmentally Critical Areas
1. All areas declared by law as national parks, watershed reserves,
wildlife preserves and sanctuaries;
2. Areas set aside as aesthetic potential tourist spots;
3. Areas which constitute the habitat for any endangered or
threatened species of indigenous Philippine Wildlife (flora
and fauna);
4. Areas of unique historic, archaeological, or scientific interests;
5. Areas which are traditionally occupied by cultural communities or
tribes;
6. Areas frequently visited and/or hard-hit by natural calamities
(geologic hazards, floods, typhoons, volcanic activity, etc.);
7. Areas with critical slopes;
8. Areas classified as prime agricultural lands;

[17]

Dated 2 December 1996 but effective 5 January 1997.

9. Recharged areas of aquifers;

[18]

Presidential Proclamation of Environmentally Critical Areas and

Projects. The President of the Philippines may, on his own
initiative or upon recommendation of the National
Environmental Protection Council, by proclamation declare
certain projects, undertakings or areas in the country as
environmentally critical. No person, partnership or
corporation shall undertake or operate any such declared
environmentally critical project or area without first securing
an Environmental Compliance Certificate issued by the
President or his duly authorized representative. For the
proper management of the said critical project or area, the
President may by his proclamation reorganize such
government offices, agencies, institutions, corporations or
instrumentalities including the re-alignment of government
personnel, and their specific functions and responsibilities.

10. Water bodies characterized by one or any combination of the

following conditions:

[19]

[20]

See Republic v. City of Davao, G.R No. 148622, 12 September

2002.
PROCLAIMING CERTAIN AREAS AND TYPES OF PROJECTS AS
ENVIRONMENTALLY CRITICAL AND WITHIN THE SCOPE OF
THE
ENVIRONMENTAL
IMPACT
STATEMENT
SYSTEM
ESTABLISHED UNDER PRESIDENTIAL DECREE NO. 1586.

a. tapped for domestic purposes;

b. within the controlled and/or protected areas declared by
appropriate authorities;
c. which support wildlife and fishery activities.
11. Mangrove areas characterized by one or any combination of the
following conditions:
a. with primary pristine and dense young growth;
b. adjoining mouth of major river systems;
c. near or adjacent to traditional productive fry or fishing
grounds;
d. which act as natural buffers against shore erosion, strong
winds and storm floods;
d. on which people are dependent for their livelihood.
12. Coral reefs, characterized by one or any of the following
conditions:

a. with 50% and above live coralline cover;

b. spawning and nursery grounds for fish;
c. which act as natural breakwater of coastlines.
(Emphasis supplied)
[21]

Pestanas v. Dyogi, supra, note 16.

[22]

Mangubat v. Osmea, Jr., G.R No. L-12837, 30 April 1959

(unreported).

[23]

DECLARING THE ENCLOSED COVES AND WATERS EMBRACED BY

PUERTO GALERA BAY AND PROTECTED BY MEDIO ISLAND,
AN ECOLOGICALLY THREATENED ZONE AND FORBIDDING
THEREIN THE CONSTRUCTION OF MARINAS, HOTELS,
RESTAURANTS OR ANY STRUCTURES ALONG ITS COASTLINE
DRAINING INTO THE ENDANGERED ZONE AND CAUSING
FURTHER
POLLUTION;
AND
FURTHER
FORBIDDING
UNWARRANTED SHIP DOCKING, SHIP REPAIR EXCEPT IN
DULURUAN; AND APPOINTING A SPECIAL COMMITTEE TO
STUDY
THE
ECOLOGICALLY
ENDANGERED
ZONES
REHABILITATION AND PRESERVATION.

[24]

As described in the title of PD No. 1605.

[25]

As described in the whereas clause and text of PD No. 1605.

[26]

A. PIMENTEL, JR., LOCAL GOVERNMENT CODE OF 1991: THE KEY

TO NATIONAL DEVELOPMENT 124 (1993).

[27]

416 Phil. 438 (2001).

[28]

Rollo, p. 17.

[29]

Section 19, paragraphs (a) and (e).

[30]

Mangubat v. Osmea, Jr., supra, note 22.

[31]

DAO 96-37, Article III, Sec. 23.

[32]

REVISED RULES OF EVIDENCE, Rule 131, Sec. 3(m).

[33]

Oposa v. Factoran, Jr., G.R. No. 101083, 30 July 1993, 224 SCRA
792.

[34]

Mustang Lumber, Inc. v. Court of Appeals, 327 Phil. 214 (1996).

G.R. No. L-41322 September 29, 1988

MUNICIPALITY OF KAPALONG, thru its Mayor, PORFIRIO F.

ROYO Vice Mayor, TOMAS D. MANZANO, Municipal
Councilors VALERIANO CLARO, CARIDAD A. DORONIO
FELICULO ESTRADA, GEORGE PEDRO JAIN, LIDO E. MONOY
SALVADOR PASPE and AGUEDO ROTOL petitioners,
vs.
HON. FELIX L. MOYA, Presiding Judge of Court of First
Instance of Davao, Branch IX, and the MUNICIPALITY OF
STO. TOMAS, thru its Mayor, ANICETO SOLIS, Vice-Mayor
LEOPOLDO RECTO, Municipal Councilors DOMINGO
CAGADAS, WENCESLAO CASTRO, WILDA ESPIRITU, PASTOR
FERNANDEZ, MACROSQUE PIMENTEL, DOMINADOR SOLIS,
JOSE TAGHOY and ALFONSO VALDEZ, and Municipal
Treasurer JOSE AVENIDO, respondents.
Martin V. Delgra, Jr. for petitioners.
Simeon N. Millan Jr. for respondent Santo Tomas.

PARAS, J.:
This is a petition for certiorari and prohibition with preliminary
injunction seeking: (a) the reversal (annulment) of the February 17,
1975 Order of the then Court of First Instance of Davao denying the
motion to dismiss Civil Case No. 475; and the March 17, 1975 and
July 10, 1975 Orders of the same Court denying petitioner's
motions for reconsideration; and (b) the issuance of a writ of
prohibition directing respondent Judge to desist from taking
cognizance of Civil Case No. 475.
From portions of the Municipality of Kapalong, President Carlos P.
Garcia created respondent Municipality of Santo Tomas, and the
latter now asserts jurisdiction over eight (8) barrios of petitioner.
For many years and on several occasions, this conflict of
boundaries between the two municipalities was brought, at the
instance of private respondent, to the Provincial Board of Davao for
it to consider and decide. However, it appears that no action was
taken on the same. Private respondent then filed a complaint with

the then Court of First Instance of Davao, presided over by herein

public respondent Judge Felix L. Moya against the Municipality of
Kapalong, for settlement of the municipal boundary dispute,
recovery of collected taxes and damages, docketed therein as Civil
Case No. 475.

4. WHETHER OR NOT THE ACTION HAS ALREADY PRESCRIBED.

The instant petition is impressed with merit.
The pivotal issue in this case is whether or not the Municipality of
Santo Tomas legally exists.

On March 7, 1974, petitioner filed its Answer (Rollo, pp. 1417).

On November 22, 1974, petitioner filed a Motion to Dismiss on the
ground of lack of jurisdiction of the lower court and lack of legal
personality of the Municipality of Santo Tomas (Ibid., pp. 18-22),
which was opposed by private respondent (Ibid., pp. 23-26). On
December 12, 1974, petitioner filed its reply to the opposition
(Ibid., pp. 27-30), after which respondent Judge, in an Order dated
February 17, 1975, denied the motion to dismiss (Ibid., pp. 34-36).

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

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

On March 3, 1975, petitioner filed a Motion for Reconsideration

(Ibid., pp. 37-40), but in an Order dated March 17, 1975, the same
was denied by respondent Judge and so was the Second Motion for
Reconsideration (Ibid., pp. 42-43), in an Order dated July 10, 1975
(Ibid., p. 44). Hence, the instant petition (Ibid., pp. 1-10).

On the ground of jurisdiction, petitioner argues that the settlement

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

The Second Division of this Court, in a Resolution dated September

10, 1975, resolved to require the respondents to answer and to
issue a temporary restraining order (Ibid., p. 49). In compliance
therewith, private respondent filed its Answer on October 28, 1975
(Ibid., pp. 53-57). In the Resolution dated November 3, 1975, the
parties were required to file their respective memoranda (Ibid., p.
65). Petitioner filed its Memorandum on December 10, 1975 (Ibid.,
pp. 68-76), and private respondent on January 5, 1975 (Ibid., pp.
77-85). Petitioner raised four (4) issues, to wit:

Rule 3, Section 1 of the Rules of Court expressly provides that only

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

1. WHETHER OR NOT PRIVATE RESPONDENT HAS LEGAL

PERSONALITY TO SUE;
2. WHETHER OR NOT THE MATTER OF SETTLEMENT OF BOUNDARY
DISPUTE IS A POLITICAL QUESTION;
3. WHETHER OR NOT PRESIDENTIAL DECREE NO. 242 SUPERSEDED
REPUBLIC ACT NO. 6128; AND

PREMISES CONSIDERED, the petition is GRANTED; the Orders of

February 17, 1975, March 17, 1975 and July 10, 1975 of respondent
Judge are SET ASIDE; and Civil Case No. 475 is DISMISSED. The
restraining order previously issued by this Court is made
permanent.
Melencio-Herrera (Chairperson), Padilla, Sarmiento and Regalado,
JJ., concur.
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.:
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)
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 Nrte, 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:
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, 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:

8.
Toboso.......................................................................1
23.4

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.....................................................................1
33.9
4.
Manapla......................................................................
112.9
5. Cadiz
City ..................................................................516.5
6.
Sagay .........................................................................
389.6
7.
Escalante ....................................................................
124.0

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).
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
non-compliance with constitutional requisites, the fact that such
plebiscite had been held and a new province proclaimed and its
officials appointed, the case before Us cannot truly be viewed as
already moot and academic. Continuation of the existence of this
newly proclaimed province which petitioners strongly profess to
have been illegally born, deserves to be inquired into by this

Tribunal so that, if indeed, illegality attaches to its creation, the

commission of that error should not provide the very excuse for
perpetuation of such wrong. For this Court to yield to the
respondents' urging that, as there has been fait accompli then this
Court should passively accept and accede to the prevailing
situation is an unacceptable suggestion. Dismissal of the instant
petition, as respondents so propose is a proposition fraught with
mischief. Respondents' submission will create a dangerous
precedent. Should this Court decline now to perform its duty of
interpreting and indicating what the law is and should be, this
might tempt again those who strut about in the corridors of power
to recklessly and with ulterior motives, create, merge, divide and/or
alter the boundaries of political subdivisions, either brazenly or
stealthily, confident that this Court will abstain from entertaining
future challenges to their acts if they manage to bring about a fait
accompli.
In the light of the facts and circumstances alluded to by petitioners
as attending to the unusually rapid creation of the instant province
of Negros del Norte after a swiftly scheduled plebiscite, this Tribunal
has the duty to repudiate and discourage the commission of acts
which run counter to the mandate of our fundamental law, done by
whatever branch of our government. This Court gives notice that it
will not look with favor upon those who may be hereafter inclined to
ram through all sorts of legislative measures and then implement
the same with indecent haste, even if such acts would violate the
Constitution and the prevailing statutes of our land. It is illogical to
ask that this Tribunal be blind and deaf to protests on the ground
that what is already done is done. To such untenable argument the
reply would be that, be this so, the Court, nevertheless, still has the
duty and right to correct and rectify the wrong brought to its
attention.
On the merits of the case.
Aside from the simpler factual issue relative to the land area of the
new province of Negros del Norte, the more significant and pivotal
issue in the 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.
This Court is not unmindful of this solitary case alluded to by
respondents. What is, however, highly significant are the prefatory
statements therein stating that said case is "one of those cases
where the discretion of the Court is allowed considerable leeway"
and that "there is indeed an element of ambiguity in the use of the
expression unit or units affected." The ruling rendered in said case

was based on a claimed prerogative of the Court then to exercise

its discretion on the matter. It did not resolve the question of how
the pertinent provision of the Constitution should be correctly
interpreted.
The ruling in the aforestated case of Paredes vs. The Honorable
Executive Secretary, et al. (supra) should not be taken as a
doctrinal or compelling precedent when it is acknowledged therein
that "it is plausible to assert, as petitioners do, that when certain
Barangays are separated from a parent municipality to form a new
one, all the voters therein are affected."
It is relevant and most proper to mention that in the aforecited case
of Paredes vs. Executive Secretary, invoked by respondents, We
find very lucidly expressed the strong dissenting view of Justice
Vicente Abad Santos, a distinguished member of this Court, as he
therein voiced his opinion, which We hereunder quote:
2. ... when the Constitution speaks of "the unit or
units affected" it means all of the people of the
municipality if the municipality is to be divided such
as in the case at bar or an of the people of two or
more municipalities if there be a merger. I see no
ambiguity in the Constitutional provision.
This dissenting opinion of Justice Vicente Abad Santos is the
forerunner of the ruling which We now consider applicable to the
case at bar, In the analogous case of Emilio C. Lopez, Jr., versus the
Honorable Commission on Elections, L-56022, May 31, 1985, 136
SCRA 633, this dissent was reiterated by Justice Abad Santos as he
therein assailed as suffering from a constitutional infirmity a
referendum which did not include all the people of Bulacan and
Rizal, when such referendum was intended to ascertain if the
people of said provinces were willing to give up some of their towns
to Metropolitan Manila. His dissenting opinion served as a useful
guideline in the instant case.
Opportunity to re-examine the views formerly held in said cases is
now afforded the present Court. The reasons in the mentioned
cases invoked by respondents herein were formerly considered

acceptable because of the views then taken that local autonomy

would be better promoted However, even this consideration no
longer retains persuasive value.
The environmental facts in the case before Us readily disclose that
the subject matter under consideration is of greater magnitude with
concomitant multifarious complicated problems. In the earlier case,
what was involved was a division of a barangay which is the
smallest political unit in the Local Government Code.
Understandably, few and lesser problems are involved. In the case
at bar, creation of a new province relates to the largest political unit
contemplated in Section 3, Art. XI of the Constitution. To form the
new province of Negros del Norte no less than three cities and eight
municipalities will be subtracted from the parent province of Negros
Occidental. This will result in the removal of approximately 2,768.4
square kilometers from the land area of an existing province whose
boundaries will be consequently substantially altered. It becomes
easy to realize that the consequent effects cf the division of the
parent province necessarily will affect all the people living in the
separate areas of Negros Occidental and the proposed province of
Negros del Norte. The economy of the parent province as well as
that of the new province will be inevitably affected, either for the
better or for the worse. Whatever be the case, either or both of
these political groups will be affected and they are, therefore, the
unit or units referred to in Section 3 of Article XI of the Constitution
which must be included in the plebiscite contemplated therein.
It is a well accepted rule that "in ascertaining the meaning of a
particular provision that may give rise to doubts, the intent of the
framers and of the people, may be gleaned from the provisions
in pari materia." Parliamentary Bill No. 3644 which proposed the
creation of the new province of Negros del Norte recites in Sec. 4
thereof that "the plebiscite shall be conducted in the areas affected
within a period of one hundred and twenty days from the approval
of this Act." As this draft legislation speaks of "areas," what was
contemplated evidently are plurality of areas to participate in the
plebiscite. Logically, those to be included in such plebiscite would
be the people living in the area of the proposed new province and
those living in the parent province. This assumption will be
consistent with the requirements set forth in the Constitution.

We fail to find any legal basis for the unexplained change made
when Parliamentary Bill No. 3644 was enacted into Batas Pambansa
Blg. 885 so that it is now provided in said enabling law that the
plebiscite "shall be conducted in the proposed new province which
are the areas affected." We are not disposed to agree that by mere
legislative fiat the unit or units affected referred in the fundamental
law can be diminished or restricted by the Batasang Pambansa to
cities and municipalities comprising the new province, thereby
ignoring the evident reality that there are other people necessarily
affected.
In the mind of the Court, the change made by those responsible for
the enactment of Batas Pambansa Blg. 885 betrays their own
misgivings. They must have entertained apprehensions that by
holding the plebiscite only in the areas of the new proposed
province, this tactic will be tainted with illegality. In anticipation of a
possible strong challenge to the legality of such a plebiscite there
was, therefore, deliberately added in the enacted statute a selfserving 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.

SEMA vs. COMELEC

No.
DECISION

The Case

These consolidated petitions[1] 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

The Facts

The Ordinance appended to the 1987 Constitution apportioned two

legislative

district

for

the Province of Maguindanao.

consists

municipalities.[3] Maguindanao

The

of Cotabato City and

forms

part

of

the

first
eight

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

Ordinance, Cotabato City forms

part

Act

201)

creating

the Province of Shariff

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 ofMaguindanao 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.

Province of Shariff Kabunsuan.[2]

districts

(MMA

Kabunsuan composed of the eight municipalities in the first district

CARPIO, J.:

legislative

201

under
of

Maguindanaos

the
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

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 municipalities[6] were carved out of the original

nine municipalities constituting Shariff Kabunsuan, bringing its total
number of municipalities to 11. Thus, what was left of Maguindanao
were

the

municipalities

district. Cotabato City,

constituting

although

part

its
of

second

legislative

Maguindanaos

first

legislative district, is not part of the Province of Maguindanao.

creation in a plebiscite held on 29 October 2006.

On 6 February 2007, the Sangguniang Panlungsod of
Cotabato City passed Resolution No. 3999 requesting the COMELEC
to clarify the status of Cotabato City in view of the conversion of
the First District of Maguindanao into a regular province under MMA
Act 201.
In answer to Cotabato Citys query, the COMELEC issued Resolution
07-0407

on 6

March

with Cotabato City as part

2007 "maintaining

the

of Shariff Kabunsuan

status

quo

in the First

Legislative District of Maguindanao. Resolution No. 07-0407, which

adopted the recommendation of the COMELECs Law Department
under a Memorandum dated27 February 2007, [7] provides in
pertinent parts:
Considering
the
foregoing,
the
Commission
RESOLVED, as it hereby resolves, to adopt the
recommendation
of
the
Law
Department
that pending the enactment of the appropriate
law by Congress, to maintain the status quo
with Cotabato City as part of Shariff Kabunsuan in
the
First
Legislative
District
of
Maguindanao. (Emphasis supplied)

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 voters of Maguindanao ratified Shariff Kabunsuans

No.

However, in preparation for the 14 May 2007 elections, the

the

legislative

district

in

question

asShariff Kabunsuan Province with Cotabato City (formerly

First

District of Maguindanao with Cotabato City).[9]

In G.R. No. 177597, Sema, who was a candidate in the 14 May
2007 elections

for

with Cotabato City,

Representative
prayed

for

the

of

Shariff

nullification

Kabunsuan
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 Constitution [10] and Section 3 of the
Ordinance appended to the Constitution.[11] Thus, Sema asserted
that the COMELEC acted without or in excess of its jurisdiction in
issuing Resolution No. 7902 which maintained the status quo in
Maguindanaos first legislative district despite the COMELECs earlier
directive in Resolution No. 7845 designating Cotabato City as the
lone component of Maguindanaos reapportioned first legislative
district.[12] Sema further claimed that in issuing Resolution No.
7902, the COMELEC usurped Congress power to create or
reapportion legislative districts.
In its Comment, the COMELEC, through the Office of the Solicitor
General (OSG), chose not to reach the merits of the case and

merely contended that (1) Sema wrongly availed of the writ of

In the Resolution of 4 September 2007, the Court required

certiorari to nullify COMELEC Resolution No. 7902 because the

the parties in G.R. No. 177597 to comment on the issue of whether

COMELEC issued the same in the exercise of its administrative, not

a province created by the ARMM Regional Assembly under Section

quasi-judicial, power and (2) Semas prayer for the writ of

19, Article VI of RA 9054 is entitled to one representative in the

prohibition in G.R. No. 177597 became moot with the proclamation

House of Representatives without need of a national law creating a

of respondent Didagen P. Dilangalen (respondent Dilangalen) on 1

legislative district for such new province. The parties submitted

June 2007 as representative of the legislative district of Shariff

their compliance as follows:

Kabunsuan Province with Cotabato City.

(1) Sema answered the issue in the affirmative on the
In his Comment, respondent Dilangalen countered that Sema is

following grounds: (a) the Court in Felwa v. Salas[14] stated that

estopped from questioning COMELEC Resolution No. 7902 because

when

in her certificate of candidacy filed on 29 March 2007, Sema

representative district comes into existence neither by authority of

indicated that she was seeking election as representative of Shariff

that statute which cannot provide otherwise nor by apportionment,

Kabunsuan including Cotabato City. Respondent Dilangalen added

but by operation of the Constitution, without a reapportionment; (b)

that COMELEC Resolution No. 7902 is constitutional because it did

Section 462 of Republic Act No. 7160 (RA 7160) affirms the

not apportion a legislative district for Shariff Kabunsuan or

apportionment of a legislative district incident to the creation of a

reapportion the legislative districts in Maguindanao but merely

province; and (c) Section 5 (3), Article VI of the Constitution and

renamed

Section 3 of the Ordinance appended to the Constitution mandate

Maguindanaos

first

legislative

district.

Respondent

province

Dilangalen further claimed that the COMELEC could not reapportion

the apportionment

Maguindanaos first legislative district to make Cotabato City its sole

provinces.

is

of

created

by

a legislative

statute,

district

the

corresponding

in newly created

component unit as the power to reapportion legislative districts lies

exclusively with Congress, not to mention that Cotabato City does

(2)

The

COMELEC,

again

represented

by

the OSG,

not meet the minimum population requirement under Section 5 (3),

apparently abandoned its earlier stance on the propriety of issuing

Article VI of the Constitution for the creation of a legislative district

Resolution Nos. 07-0407 and 7902 and joined causes with Sema,

within a city.

[13]

contending that Section 5 (3), Article VI of the Constitution is selfexecuting. Thus, every new province created by the ARMM Regional

Sema filed a Consolidated Reply controverting the matters raised in

Assembly is ipso facto entitled to one representative in the House

respondents Comments and reiterating her claim that the COMELEC

of Representatives even in the absence of a national law; and

acted ultra vires in issuing Resolution No. 7902.

(3) Respondent Dilangalen answered the issue in the

negative on the following grounds: (a) the province contemplated

(1) Sema contended that Section 19, Article VI of RA 9054 is

in Section 5 (3), Article VI of the Constitution is one that is created

constitutional (a) as a valid delegation by Congress to the ARMM of

by an act of Congress taking into account the provisions in RA 7160

the power to create provinces under Section 20 (9), Article X of the

on the creation of provinces; (b) Section 3, Article IV of RA 9054

Constitution granting to the autonomous regions, through their

withheld from the ARMM Regional Assembly the power to enact

organic acts, legislative powers over other matters as may be

measures relating to national elections, which encompasses the

authorized by law for the promotion of the general welfare of the

apportionment of legislative districts for members of the House of

people of the region and (b) as an amendment to Section 6 of RA

Representatives; (c) recognizing a legislative district in every

7160.[17] However, Sema concedes that, if taken literally, the grant

province the ARMM Regional Assembly creates will lead to the

in Section 19, Article VI of RA 9054 to the ARMM Regional Assembly

disproportionate representation of the ARMM in the House of

of the power to prescribe standards lower than those mandated in

Representatives as the Regional Assembly can create provinces

RA 7160 in the creation of provinces contravenes Section 10, Article

without regard to the requirements in Section 461 of RA 7160; and

X of the Constitution.[18] Thus, Sema proposed that Section 19

(d) Cotabato City, which has a population of less than 250,000, is

should be construed as prohibiting the Regional Assembly from

not entitled to a representative in the House of Representatives.

prescribing standards x x x that do not comply with the minimum

criteria under RA 7160.[19]

On 27 November 2007, the Court heard the parties in

G.R. No. 177597 in oral arguments on the following issues: (1)

(2)

Respondent

Dilangalen

contended

that Section

whether Section 19, Article VI of RA 9054, delegating to the ARMM

19, Article VI of RA 9054 is unconstitutional on the following

Regional Assembly the power to create provinces, is constitutional;

grounds: (a) the power to create provinces was not among those

and (2) if in the affirmative, whether a province created under

granted to the autonomous regions under Section 20, Article X of

Section 19, Article VI of RA 9054 is entitled to one representative in

the Constitution and (b) the grant under Section 19, Article VI of RA

the House of Representatives without need of a national law

9054 to the ARMM Regional Assembly of the power to prescribe

creating a legislative district for such new province.[15]

standards lower than those mandated in Section 461 of RA 7160 on

the creation of provinces contravenes Section 10, Article X of the

In compliance with the Resolution dated 27 November 2007,

Constitution and the Equal Protection Clause; and

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

(3) The COMELEC, through the OSG, joined causes with

constitutionality of Section 19, Article VI of RA 9054, the parties in

respondent Dilangalen (thus effectively abandoning the position

G.R. No. 177597 adopted the following positions:

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.

The petitions raise the following issues:

I. In G.R. No. 177597:
(A) Preliminarily
(1)

whether

the

writs

of

Certiorari,

Prohibition,

and

Mandamus are proper to test the constitutionality of COMELEC

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

Resolution No. 7902; and

(2) whether the proclamation of respondent Dilangalen as
representative
of Shariff Kabunsuan Province with Cotabato City mooted

the

petition in G.R. No. 177597.

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,
(B) On the merits

Article VI of RA 9054 is unconstitutional.

(1) whether Section 19, Article VI of RA 9054, delegating to

The pendency of the petition in G.R. No. 178628 was
disclosed during the oral arguments on 27 November 2007. Thus,

the ARMM Regional Assembly the power to create provinces, cities,

municipalities and barangays, is constitutional; and

in the Resolution of 19 February 2008, the Court ordered G.R.

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

No. 178628 consolidated with G.R. No. 177597. The petition in G.R.

ARMM Regional Assembly under MMA Act 201 pursuant to Section

No. 178628

COMELEC

19, Article VI of RA 9054 is entitled to one representative in the

acted ultra vires in issuing Resolution No. 7902 depriving the voters

House of Representatives without need of a national law creating a

of Cotabato City of

legislative district for such province.

echoed

Sema's
a

contention

representative

in

that the
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.

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

The Issues

Province of Shariff Kabunsuan out of such district (excluding

Cotabato City).

The purpose of the writ of Certiorari is to correct grave

abuse of discretion by any tribunal, board, or officer exercising

The Ruling of the Court

judicial or quasi-judicial functions. [21] On the other hand, the writ of

Mandamus will issue to compel a tribunal, corporation, board,

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.

officer, or person to perform an act which the law specifically

enjoins as a duty.[22] True, the COMELEC did not issue Resolution No.
7902 in the exercise of its judicial or quasi-judicial functions. [23] Nor
is there a law which specifically enjoins the COMELEC to exclude
from canvassing the votes cast in Cotabato City for representative
of Shariff Kabunsuan Province with Cotabato City. These, however,
do not justify the outright dismissal of the petition in G.R. No.
177597 because Sema also prayed for the issuance of the writ of
Prohibition and we have long recognized this writ as proper for
testing the constitutionality of election laws, rules, and regulations.
[24]

On the Preliminary Matters

Respondent Dilangalens Proclamation

Does Not Moot the Petition

The Writ of Prohibition is Appropriate

to Test the Constitutionality of
Election Laws, Rules and Regulations

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 withCotabato City mooted

this

petition. This case does not concern respondent Dilangalens

majority of the votes cast in a plebiscite in the

political units directly affected.

election. Rather, it involves an inquiry into the validity of COMELEC

Resolution No. 7902, as well as the constitutionality of MMA Act 201

Thus, the creation of any of the four local government units

and Section 19, Article VI of RA 9054. Admittedly, the outcome of

province, city, municipality or barangay must comply with three

this petition, one way or another, determines whether the votes

conditions. First, the creation of a local government unit must follow

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

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.

no reason for us not to proceed with the resolution of the novel

issues raised here. The Courts ruling in these petitions affects not

There is neither an express prohibition nor an express grant of

only the recently concluded elections but also all the other

authority in the Constitution for Congress to delegate to regional or

succeeding elections for the office in question, as well as the power

of the ARMM Regional Assembly to create in the future additional
provinces.

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

On the Main Issues

municipal councils, the power to create barangays within their

jurisdiction,[25] subject to compliance with the criteria established in

Whether the ARMM Regional Assembly

Can Create the Province of Shariff Kabunsuan

the Local Government Code, and the plebiscite requirement in

Section 10, Article X of the Constitution. However, under the Local

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

Government Code, only x x x an Act of Congress can create

provinces, cities or municipalities.[26]
Under Section 19, Article VI of RA 9054, Congress delegated to the
ARMM Regional Assembly the power to create provinces, cities,
municipalities and barangays within the ARMM. Congress made the
delegation under its plenary legislative powers because the power

to create local government units is not one of the express

because once the citys population reaches 250,000, the city

legislative

regional

automatically becomes entitled to one representative under

In the present case, the question arises

Section 5 (3), Article VI of the Constitution and Section 3 of the

whether the delegation to the ARMM Regional Assembly of the

Ordinance appended to the Constitution. Thus, the power to

power to create provinces, cities, municipalities and barangays

create a province or city inherently involves the power to

conflicts with any provision of the Constitution.

create a legislative district.

powers

legislative bodies.

[27]

granted

by

the

Constitution

to

There is no provision in the Constitution that conflicts with the

For Congress to delegate validly the power to create a

delegation to regional legislative bodies of the power to create

province or city, it must also validly delegate at the same time the

municipalities and barangays, provided Section 10, Article X of the

power to create a legislative district. The threshold issue then is,

Constitution is followed. However, the creation of provinces and

can Congress validly delegate to the ARMM Regional Assembly the

cities is another matter. Section 5 (3), Article VI of the Constitution

power

provides, Each city with a population of at least two hundred fifty

Representatives? The answer is in the negative.

to

create

legislative

districts

for

the

House

of

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

Legislative Districts are Created or Reapportioned

Only by an Act of Congress

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.

Under

the

past[28] Constitutions,

present
the

Constitution,

power

to

as

increase

well
the

as

in

allowable

membership in the House of Representatives, and to reapportion

Clearly, a province cannot be created without a legislative
district because it will violate Section 5 (3), Article VI of the

legislative districts, is vested exclusively in Congress. Section 5,

Article VI of the Constitution provides:

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

SECTION 5. (1) The House of Representatives

district. Thus, the power to create a province, or a city with a

shall be composed of not more than two hundred

population of 250,000 or more, requires also the power to create a

and fifty members, unless otherwise fixed by

legislative district. Even the creation of a city with a population of

law, who shall be elected from legislative districts

less than 250,000 involves the power to create a legislative district

apportioned among the provinces, cities, and the

Section 5 (1), Article VI of the Constitution vests in Congress

Metropolitan Manila area in accordance with the

the power to increase, through a law, the allowable membership in

number of their respective inhabitants, and on the

the House of Representatives. Section 5 (4) empowers Congress to

basis of a uniform and progressive ratio, and those

reapportion

who, as provided by law, shall be elected through a

legislative districts necessarily includes the power to create

party-list system of registered national, regional, and

legislative districts out of existing ones. Congress exercises these

sectoral parties or organizations.

powers through a law that Congress itself enacts, and not through a

legislative

districts. The

power

to

reapportion

law that regional or local legislative bodies enact. The allowable

xxxx

membership of the House of Representatives can be increased, and

new legislative districts of Congress can be created, only through a
(3) Each legislative district shall comprise, as

national law passed by Congress. InMontejo v. COMELEC,[29] we held

far as practicable, contiguous, compact, and adjacent

that the power of redistricting x x x is traditionally regarded as part

territory. Each city with a population of at least two

of the power (of Congress) to make laws, and thus is vested

hundred fifty thousand, or each province, shall have

exclusively in Congress.

at least one representative.

This textual commitment to Congress of the exclusive power
(4) Within three years following the return of
every

census, the

Congress shall

make

to create or reapportion legislative districts is logical. Congress is a

national legislature and any increase in its allowable membership

reapportionment of legislative districts based

or in its incumbent membership through the creation of legislative

on the standards provided in this section. (Emphasis

districts must be embodied in a national law. Only Congress can

supplied)

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.

(9) Such other matters as may be authorized

The creation of the ARMM, and the grant of legislative
powers to its Regional Assembly under its organic act, did not

by law for the promotion of the general welfare of the

people of the region.

divest Congress of its exclusive authority to create legislative

districts. This is clear from the Constitution and the ARMM Organic

Nothing

Act, as amended. Thus, Section 20, Article X of the Constitution

authorizes autonomous regions, expressly or impliedly, to

provides:

create or reapportion legislative districts for Congress.

SECTION 20. Within its territorial jurisdiction

in

Section

20,

Article

of

the

Constitution

On the other hand, Section 3, Article IV of RA 9054

and subject to the provisions of this Constitution and

amending

the

ARMM

Organic

Act,

provides, The

Regional

national laws, the organic act of autonomous regions

Assembly may exercise legislative power x x x except on the

shall provide for legislative powers over:

following matters: x x x (k) National elections. x x x. Since the

(1) Administrative organization;

ARMM Regional Assembly has no legislative power to enact laws

(2) Creation of sources of revenues;

relating to national elections, it cannot create a legislative district

(3) Ancestral domain and natural resources;

whose representative is elected in national elections. Whenever

(4) Personal, family, and property relations;

Congress enacts a law creating a legislative district, the first

(5) Regional

representative is always elected in the next national elections from

urban

and

rural

planning

the effectivity of the law.[30]

development;
(6) Economic,

social,

and

tourism

development;

Congress is a national office, and its occupant, a Member of the

House of Representatives, is a national official.[31] It would be

(7) Educational policies;

(8) Preservation
cultural heritage; and

Indeed, the office of a legislative district representative to

and

development

of

the

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

of

Shariff

Kabunsuan

without

legislative

district

is

unconstitutional.

legislative body that it can only create local or regional offices,

Sema, petitioner in G.R. No. 177597, contends that Section 5 (3),

respectively, and it can never create a national office.

Article VI of the Constitution, which provides:

To allow the ARMM Regional Assembly to create a national
Each legislative district shall comprise, as far

office is to allow its legislative powers to operate outside the

as practicable, contiguous, compact, and adjacent

ARMMs territorial jurisdiction. This violates Section 20, Article X

territory. Each city with a population of at least

of the Constitution which expressly limits the coverage of

the

Regional

Assemblys

legislative

powers [w]ithin

two hundred fifty thousand, or each province,

its

shall

territorial jurisdiction x x x.

have

at

least

one

representative.

(Emphasis supplied)
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

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

states:

creating a legislative district for Shariff Kabunsuan. Section 5 of

Any province

MMA Act 201 provides that:

that

may

hereafter be

created, or any city whose population may

Except as may be provided by national
law, the existing legislative district, which includes
Cotabato

City

as

part

thereof,

shall

remain. (Emphasis supplied)

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

However, a province cannot legally be created without a legislative

inhabitants and according to the standards set

district because the Constitution mandates that each province shall

forth in paragraph (3), Section 5 of Article VI of

have at least one representative. Thus, the creation of the Province

the

Constitution. The

number

of

Members

apportioned to the province out of which such new

apportionment provided in the Constitution. The Court answered in

province was created or where the city, whose

the negative, thus:

population

has

so

increased,

is

geographically

located shall be correspondingly adjusted by the

The Constitution ordains:

Commission on Elections but such adjustment shall

The House of Representatives shall be

composed of not more than one
hundred and twenty Members who
shall be apportioned among the
several provinces as nearly as may be
according to the number of their
respective
inhabitants,
but
each
province shall have at least one
Member. The Congress shall by law
make an apportionment within three
years after the return of every
enumeration, and not otherwise. Until
such apportionment shall have been
made, the House of Representatives
shall have the same number of
Members as that fixed by law for the
National Assembly, who shall be
elected by the qualified electors from
the present Assembly districts. Each
representative district shall comprise
as far as practicable, contiguous and
compact territory.
Pursuant to this Section, a representative
district may come into existence: (a) indirectly,
through the creation of a province for each
province shall have at least one member in the
House of Representatives; or (b) by direct
creation of several representative districts
within a province. The requirements concerning
the apportionment of representative districts and the
territory thereof refer only to the second method of
creation of representative districts, and do not apply
to those incidental to the creation of provinces, under
the first method. This is deducible, not only from the
general tenor of the provision above quoted, but,
also, from the fact that the apportionment therein
alluded to refers to that which is made by an Act of
Congress. Indeed, when a province is created by

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

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.

province was created merely by aregional law enacted by the

ARMM Regional Assembly.

What Felwa teaches is that the creation of a legislative

There is no constitutional limitation as to the time

district by Congress does not emanate alone from Congress power

when, territory of, or other conditions under which a

to reapportion legislative districts, but also from Congress power to

province may be created, except, perhaps, if the

create provinces which cannot be created without a legislative

consequence thereof were to exceed the maximum

district. Thus, when a province is created, a legislative district is

of 120 representative districts prescribed in the

created by

Constitution, which is not the effect of the legislation

been

created

or

subdivided

into

of

the

Constitution

because

the

Constitution provides that each province shall have at least

under consideration. As a matter of fact, provinces

have

operation

one representative in the House of Representatives. This does

other

not detract from the constitutional principle that the power to

provinces, with the consequent creation of additional

create legislative districts belongs exclusively to Congress. It

representative districts, without complying with the

merely prevents any other legislative body, except Congress, from

aforementioned requirements.[32] (Emphasis supplied)

creating provinces because for a legislative body to create a

province such legislative body must have the power to create
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

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.

breaching the maximum number of legislative districts provided

under the 1935 Constitution. Felwa does not apply to the present
case

because

in Felwa the

new

provinces

were

created

by

a national law enacted by Congress itself. Here, the new

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

(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.

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.

The following exchange during the oral arguments of the

petition in G.R. No. 177597 highlights the absurdity of Semas

Second. Semas theory also undermines the composition and

position that the ARMM Regional Assembly can create provinces:

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

Justice Carpio:

the criteria fixed in Section 461 of RA 7160, namely: minimum

So, you mean to say [a] Local Government

annual income of P20,000,000, and minimum contiguous territory

can create legislative district[s] and pack

of 2,000 square kilometers or minimum population of 250,000.

Congress with their own representatives [?]

[34]

The following scenarios thus become distinct possibilities:

(1) An inferior legislative body like the ARMM
Regional Assembly can create 100 or more provinces
and thus increase the membership of a superior
legislative body, the House of Representatives,
beyond the maximum limit of 250 fixed in the
Constitution (unless a national law provides
otherwise);
(2) The proportional representation in the
House
of Representatives
based
on
one
representative for at least every 250,000 residents
will be negated because the ARMM Regional
Assembly need not comply with the requirement in
Section 461(a)(ii) of RA 7160 that every province
created must have a population of at least 250,000;
and

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[?]

House
Atty. Vistan II:

of

Representatives

without

national law[,] that is legally possible,

correct?
Yes, Your Honor, under the correct factual
circumstances.

Atty. Vistan II:

Yes, Your Honor.[36] (Emphasis supplied)

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

Neither the framers of the 1987 Constitution in adopting the

(100,000) [population], x x x, and they will

provisions in Article X on regional autonomy,[37] nor Congress in

each have one representative x x x to

enacting RA 9054, envisioned or intended these disastrous

Congress without any national law, is that

consequences that certainly would wreck the tri-branch system of

what you are saying?

government under our Constitution. Clearly, the power to create or

reapportion legislative districts cannot be delegated by Congress

Atty. Vistan II:

but must be exercised by Congress itself. Even the ARMM Regional

Assembly recognizes this.
Without law passed by Congress, yes, Your
Honor, that is what we are saying.

The Constitution empowered Congress to create or reapportion

legislative districts, not the regional assemblies. Section 3 of the

xxxx

Ordinance to the Constitution which states, [A]ny province that

Justice Carpio:

may hereafter be created x x x shall be entitled in the immediately

So, they can also create one thousand

following election to at least one Member, refers to a province

(1000)

one

created by Congress itself through a national law. The reason is that

thousand (1000) representatives to the

the creation of a province increases the actual membership of the

new

provinces,

sen[d]

House of Representatives, an increase that only Congress can

decide.Incidentally,

in

the

present

14th Congress,

there

The

present

case

involves

the

creation

of

local

are

government unit that necessarily involves also the creation of a

219[38] district representatives out of the maximum 250 seats in the

legislative district. The Court will not pass upon the constitutionality

House of Representatives. Since party-list members shall constitute

of the creation of municipalities and barangays that does not

20 percent of total membership of the House, there should at least

comply with the criteria established in Section 461 of RA 7160, as

be 50 party-list seats available in every election in case 50 party-

mandated in Section 10, Article X of the Constitution, because the

list candidates are proclaimed winners. This leaves only 200 seats

creation of such municipalities and barangays does not involve the

for district representatives, much less than the 219 incumbent

creation of legislative districts. We leave the resolution of this issue

district representatives. Thus, there is a need now for Congress to

to an appropriate case.

increase by law the allowable membership of the House, even

before Congress can create new provinces.

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

It is axiomatic that organic acts of autonomous regions cannot

provinces and cities, is void for being contrary to Section 5 of

prevail

the

Article VI and Section 20 of Article X of the Constitution, as well as

Constitution expressly provides that the legislative powers of

Section 3 of the Ordinance appended to the Constitution. Only

regional

territorial

Congress can create provinces and cities because the creation of

jurisdiction and subject to the provisions of the Constitution

provinces and cities necessarily includes the creation of legislative

and national laws, x x x. The Preamble of the ARMM Organic Act

districts, a power only Congress can exercise under Section 5,

(RA 9054) itself states that the ARMM Government is established

Article VI of the Constitution and Section 3 of the Ordinance

within the framework of the Constitution. This follows Section 15,

appended to the Constitution. The ARMM Regional Assembly cannot

Article X of the Constitution which mandates that the ARMM shall

create a province without a legislative district because the

be

this

Constitution mandates that every province shall have a legislative

as

district. Moreover, the ARMM Regional Assembly cannot enact a law

over

the

Constitution. Section

assemblies

created x

Constitution and

are

limited [w]ithin

x within
the

20,

the

national

Article

its

framework

sovereignty

as

of

of
well

territorial integrity of the Republic of the Philippines.

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

SO ORDERED.

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

BAGABUYO vs. COMELEC

Before us is the petition for certiorari, prohibition, and mandamus,
[1]
with a prayer for the issuance of a temporary restraining order
and a writ of preliminary injunction, filed by Rogelio Bagabuyo
(petitioner) to prevent the Commission on Elections (COMELEC)
from implementing Resolution No. 7837 on the ground that
Republic Act No. 9371[2] the law that Resolution No. 7837
implements is unconstitutional.

with Section 5 of Article VI and Section 20 of Article X of the

Constitution, as well as Section 1 of the Ordinance appended to the
Constitution.

WHEREFORE, we declare Section 19, Article VI of Republic Act No.

9054 UNCONSTITUTIONAL insofar as it grants to the Regional
Assembly of the Autonomous Region in Muslim Mindanao the power
to create provinces and cities. Thus, we declare VOID Muslim
Mindanao Autonomy Act No. 201 creating the Province of Shariff
Kabunsuan.Consequently, we rule that COMELEC Resolution No.
7902 is VALID.

BACKGROUND FACTS
On October 10, 2006, Cagayan de Oros then Congressman
Constantino G. Jaraula filed and sponsored House Bill No. 5859: An
Act Providing for the Apportionment of the Lone Legislative District
of the City of Cagayan De Oro.[3] This law eventually became
Republic Act (R.A.) No. 9371.[4] It increased Cagayan de Oros
legislative district from one to two. For the election of May 2007,
Cagayan de Oros voters would be classified as belonging to either
the first or the second district, depending on their place of
residence. The constituents of each district would elect their own
representative to Congress as well as eight members of
the Sangguniang Panglungsod.
Section
1
of
R.A.
Citys barangays as follows:

Let a copy of this ruling be served on the President of the

Senate and the Speaker of the House of Representatives.

No.

9371

apportioned

Legislative Districts The lone legislative district of the

City of Cagayan De Oro is hereby apportioned to
commence in the next national elections after the
effectivity of this Act. Henceforth, barangays Bonbon,

the

Bayabas, Kauswagan, Carmen, Patag, Bulua, Iponan,

Baikingon, San Simon, Pagatpat, Canitoan, Balulang,
Lumbia, Pagalungan, Tagpangi, Taglimao, Tuburan,
Pigsag-an,
Tumpagon,
Bayanga,
Mambuaya,
Dansulihon, Tignapoloan and Bisigan shall comprise
the first district while barangays Macabalan, Puntod,
Consolacion, Camaman-an, Nazareth, Macasandig,
Indahag, Lapasan, Gusa, Cugman, FS Catanico,
Tablon, Agusan, Puerto, Bugo, and Balubal and all
urban barangays from Barangay 1 to Barangay 40
shall comprise the second district.[5]

On March 13, 2007, the COMELEC en Banc promulgated Resolution

No. 7837[6] implementing R.A. No. 9371.
Petitioner Rogelio Bagabuyo filed the present petition
against the COMELEC on March 27, 2007.[7] On 10 April 2008, the
petitioner amended the petition to include the following as
respondents: Executive Secretary Eduardo Ermita; the Secretary of
the Department of Budget and Management; the Chairman of the
Commission on Audit; the Mayor and the members of
the Sangguniang Panglungsod of Cagayan de Oro City; and its
Board of Canvassers.[8]
In asking for the nullification of R.A. No. 9371 and Resolution No.
7837 on constitutional grounds, the petitioner argued that the
COMELEC cannot implement R.A. No. 9371 without providing for the
rules, regulations and guidelines for the conduct of a plebiscite
which is indispensable for the division or conversion of a local
government unit. He prayed for the issuance of an order directing
the respondents to cease and desist from implementing R.A. No.
9371 and COMELEC Resolution No. 7837, and to revert instead to
COMELEC Resolution No. 7801 which provided for a single
legislative district for Cagayan de Oro.

Since the Court did not grant the petitioners prayer for a
temporary restraining order or writ of preliminary injunction, the
May 14 National and Local Elections proceeded according to R.A.
No. 9371 and Resolution No. 7837.
The respondents Comment on the petition, filed through the Office
of the Solicitor General, argued that: 1) the petitioner did not
respect the hierarchy of courts, as the Regional Trial Court (RTC) is
vested with concurrent jurisdiction over cases assailing the
constitutionality of a statute; 2) R.A. No. 9371 merely increased the
representation of Cagayan de Oro City in the House of
Representatives and Sangguniang Panglungsod pursuant to Section
5, Article VI of the 1987 Constitution; 3) the criteria established
under Section 10, Article X of the 1987 Constitution only apply
when there is a creation, division, merger, abolition or substantial
alteration of boundaries of a province, city, municipality,
orbarangay; in this case, no such creation, division, merger,
abolition or alteration of boundaries of a local government unit took
place; and 4) R.A. No. 9371 did not bring about any change in
Cagayan de Oros territory, population and income classification;
hence, no plebiscite is required.
The petitioner argued in his reply that: 1) pursuant to the Courts
ruling in Del Mar v. PAGCOR,[9] the Court may take cognizance of
this petition if compelling reasons, or the nature and importance of
the issues raised, warrant the immediate exercise of its jurisdiction;
2) Cagayan de Oro Citys reapportionment under R.A. No. 9371 falls
within the meaning of creation, division, merger, abolition or
substantial alteration of boundaries of cities under Section 10,
Article X of the Constitution; 3) the creation, division, merger,
abolition or substantial alteration of boundaries of local government
units involve a common denominator the material change in the
political and economic rights of the local government units directly
affected, as well as of the people therein; 4) a voters sovereign
power to decide on who should be elected as the entire citys
Congressman was arbitrarily reduced by at least one half because

the questioned law and resolution only allowed him to vote and be
voted for in the district designated by the COMELEC; 5) a voter was
also arbitrarily denied his right to elect the Congressman and the
members of the city council for the other legislative district, and 6)
government funds were illegally disbursed without prior approval
by the sovereign electorate of Cagayan De Oro City.[10]

THE ISSUES

The core issues, based on the petition and the parties memoranda,
can be limited to the following contentious points:

1)

Did the petitioner violate the hierarchy of courts rule; if so,

should the instant petition be dismissed on this ground?

2)

Does R.A. No. 9371 merely provide for the legislative

reapportionment of Cagayan de Oro City, or does it involve
the division and conversion of a local government unit?

3)

Does R.A. No. 9371 violate the equality of representation

doctrine?

OUR RULING

Except for the issue of the hierarchy of courts rule, we find

the petition totally without merit.

The
hierarchy
courts principle.

of

The Supreme Court has original jurisdiction over petitions

for certiorari, prohibition, mandamus, quo warranto, and habeas
corpus.[11] It was pursuant to this original jurisdiction that the
petitioner filed the present petition.

While this jurisdiction is shared with the Court of

Appeals[12] and the RTCs,[13] a direct invocation of the Supreme
Courts jurisdiction is allowed only when there are special and
important reasons therefor, clearly and especially set out in the
petition. Reasons of practicality, dictated by an increasingly
overcrowded docket and the need to prioritize in favor of matters
within our exclusive jurisdiction, justify the existence of this rule
otherwise known as the principle of hierarchy of courts. More
generally stated, the principle requires that recourse must first be
made to the lower-ranked court exercising concurrent jurisdiction
with a higher court.[14]

Among the cases we have considered sufficiently special

and important to be exceptions to the rule, are petitions
for certiorari, prohibition, mandamus and quo warrantoagainst our
nations lawmakers when the validity of their enactments is
assailed.[15] The present petition is of this nature; its subject matter
and the nature of the issues raised among them, whether
legislative reapportionment involves a division of Cagayan de Oro
City as a local government unit are reasons enough for considering
it an exception to the principle of hierarchy of courts. Additionally,
the petition assails as well a resolution of the COMELEC en
banc issued to implement the legislative apportionment that R.A.
No. 9371 decrees. As an action against a COMELEC en
banc resolution, the case falls under Rule 64 of the Rules of Court
that in turn requires a review by this Court via a Rule 65 petition

for certiorari.[16] For these reasons, we do not see the principle of

hierarchy of courts to be a stumbling block in our consideration of
the present case.

The
Plebiscite
Requirement.

The petitioner insists that R.A. No. 9371 converts and divides the
City of Cagayan de Oro as a local government unit, and does not
merely provide for the Citys legislative apportionment. This
argument essentially proceeds from a misunderstanding of the
constitutional concepts of apportionment of legislative districts and
division of local government units.

Legislative apportionment is defined by Blacks Law Dictionary

as the determination of the number of representatives which a
State, county or other subdivision may send to a legislative body.
[17]
It is the allocation of seats in a legislative body in proportion to
the population; the drawing of voting district lines so as to equalize
population
and
voting
power
among
the
districts.
[18]
Reapportionment, on the other hand, is the realignment or
change in legislative districts brought about by changes in
population and mandated by the constitutional requirement of
equality of representation.[19]

Article VI (entitled Legislative Department) of the 1987

Constitution lays down the rules on legislative apportionment under
its Section 5 which provides:

Sec. 5(1). (1) The House of Representatives

shall be composed of not more than two hundred fifty
members unless otherwise fixed by law, who shall be
elected from legislative districts apportioned among
the provinces, cities, and the Metropolitan Manila
area in accordance with the number of their
respective inhabitants, and on the basis of a uniform
and progressive ratio, and those who, as provided by
law, shall be elected through a party-list system of
registered national, regional and sectoral parties or
organizations.

xxx

(3) Each legislative district shall comprise, as

far as practicable, continuous, compact, and adjacent
territory. Each city with a population of at least two
hundred fifty thousand, or each province, shall have
at least one representative.

(4) Within three years following the return of

every census, the Congress shall make a
reapportionment of legislative districts based on the
standards provided in this section.

Separately from the legislative districts that legal

apportionment or reapportionment speaks of, are the local
government units (historically and generically referred to as
municipal corporations) that the Constitution itself classified into
provinces, cities, municipalities and barangays.[20] In its strict and
proper sense, a municipality has been defined as a body politic and
corporate constituted by the incorporation of the inhabitants of a
city or town for the purpose of local government thereof. [21] The

creation, division, merger, abolition or alteration of boundary of

local government units, i.e., of provinces, cities, municipalities,
and barangays, are covered by the Article on Local Government
(Article X). Section 10 of this Article provides:

No province, city, municipality, or barangay may be

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

Under both Article VI, Section 5, and Article X, Section 10 of

the Constitution, the authority to act has been vested in the
Legislature. The Legislature undertakes the apportionment and
reapportionment of legislative districts, [22] and likewise acts on local
government units by setting the standards for their creation,
division, merger, abolition and alteration of boundaries and by
actually creating, dividing, merging, abolishing local government
units and altering their boundaries through legislation. Other than
this, not much commonality exists between the two provisions
since they are inherently different although they interface and
relate with one another.
The concern that leaps from the text of Article VI, Section 5
is political representation and the means to make a legislative
district sufficiently represented so that the people can be
effectively heard. As above stated, the aim of legislative
apportionment is to equalize population and voting power among
districts.[23] Hence, emphasis is given to the number of people
represented; the uniform and progressive ratio to be observed

among the representative districts; and accessibility and

commonality of interests in terms of each district being, as far as
practicable, continuous, compact and adjacent territory. In terms of
the people represented, every city with at least 250,000 people and
every province (irrespective of population) is entitled to one
representative. In this sense, legislative districts, on the one hand,
and provinces and cities, on the other, relate and interface with
each other. To ensure continued adherence to the required
standards of apportionment, Section 5(4) specifically mandates
reapportionment as soon as the given standards are met.

In contrast with the equal representation objective of Article

VI, Section 5, Article X, Section 10 expressly speaks of how local
government units may be created, divided, merged, abolished, or
its
boundary
substantially
altered. Its
concern
is
the
commencement, the termination, and the modification of local
government units corporate existence and territorial coverage; and
it speaks of two specific standards that must be observed in
implementing this concern, namely, the criteria established in the
local government code and the approval by a majority of the votes
cast in a plebiscite in the political units directly affected. Under the
Local Government Code (R.A. No. 7160) passed in 1991, the criteria
of income, population and land area are specified as verifiable
indicators of viability and capacity to provide services. [24] The
division or merger of existing units must comply with the same
requirements (since a new local government unit will come into
being), provided that a division shall not reduce the income,
population, or land area of the unit affected to less than the
minimum requirement prescribed in the Code.[25]

A pronounced distinction between Article VI, Section 5 and,

Article X, Section 10 is on the requirement of a plebiscite. The
Constitution and the Local Government Code expressly require a

plebiscite to carry out any creation, division, merger, abolition or

alteration of boundary of a local government unit.[26] In contrast, no
plebiscite requirement exists under the apportionment or
reapportionment provision. In Tobias v. Abalos,[27] a case that arose
from the division of the congressional district formerly covering San
Juan and Mandaluyong into separate districts, we confirmed this
distinction and the fact that no plebiscite is needed in a legislative
reapportionment. The plebiscite issue came up because one was
ordered and held for Mandaluyong in the course of its conversion
into a highly urbanized city, while none was held for San Juan. In
explaining why this happened, the Court ruled that no plebiscite
was necessary for San Juan because the objective of the plebiscite
was the conversion of Mandaluyong into a highly urbanized city as
required by Article X, Section 10 the Local Government Code; the
creation of a new legislative district only followed as a
consequence. In other words, the apportionment alone and by itself
did not call for a plebiscite, so that none was needed for San
Juan where only a reapportionment took place.

that acted as the lower house of the bicameral legislature under

the Americans, with the Philippine Commission acting as the upper
house. While the members of the Philippine Commission were
appointed by the U.S. President with the conformity of the U.S.
Senate, the members of the Philippine Assembly were elected by
representative districts previously delineated under the Philippine
Organic Act of 1902 pursuant to the mandate to apportion the
seats of the Philippine Assembly among the provinces as nearly as
practicable
according
to
population.
Thus,
legislative
apportionment first started in our country.

The need for a plebiscite under Article X, Section 10 and the lack of
requirement for one under Article VI, Section 5 can best be
appreciated by a consideration of the historical roots of these two
provisions, the nature of the concepts they embody as heretofore
discussed, and their areas of application.

Under the 1935 Constitution, Article VI, Section 5 retained

the concept of legislative apportionment together with district as
the basic unit of apportionment; the concern was equality of
representation . . . as an essential feature of republican institutions
as expressed in the leading case of Macias v. COMELEC.[31] The case
ruled that inequality of representation is a justiciable, not a political
issue, which ruling was reiterated in Montejo v. COMELEC.
[32]
Notably, no issue regarding the holding of a plebiscite ever
came up in these cases and the others that followed, as no
plebiscite was required.

A Bit of History.

In Macias v. COMELEC,[28] we first jurisprudentially acknowledged

the American roots of our apportionment provision, noting its roots
from the Fourteenth Amendment[29] of the U.S. Constitution and
from the constitutions of some American states. The Philippine
Organic Act of 1902 created the Philippine Assembly, [30] the body

The Jones Law or the Philippine Autonomy Act of 1916

maintained the apportionment provision, dividing the country into
12 senate districts and 90 representative districts electing one
delegate each to the House of Representatives. Section 16 of the
Act specifically vested the Philippine Legislature with the authority
to redistrict the Philippine Islands.

Article VIII, Section 2 of the 1973 Constitution retained the concept

of equal representation in accordance with the number of their
respective inhabitants and on the basis of a uniform and

progressive ratio with each district being, as far as practicable,

contiguous, compact and adjacent territory. This formulation was
essentially carried over to the 1987 Constitution, distinguished only
from the previous one by the presence of party-list
representatives. In neither Constitution was a plebiscite required.

The need for a plebiscite in the creation, division, merger, or

abolition of local government units was not constitutionally
enshrined until the 1973 Constitution. However, as early as 1959,
R.A. No. 2264[33] required, in the creation of barrios by Provincial
Boards, that the creation and definition of boundaries be upon
petition of a majority of the voters in the areas affected. In 1961,
the Charter of the City of Caloocan (R.A. No. 3278) carried this
further by requiring that the Act shall take effect after a majority of
voters of the Municipality of Caloocan vote in favor of the
conversion of their municipality into a city in a plebiscite. This was
followed up to 1972 by other legislative enactments requiring a
plebiscite as a condition for the creation and conversion of local
government units as well as the transfer of sitios from one
legislative unit to another.[34] In 1973, the plebiscite requirement
was accorded constitutional status.

Under these separate historical tracks, it can be seen that

the holding of a plebiscite was never a requirement in legislative
apportionment or reapportionment. After it became constitutionally
entrenched, a plebiscite was also always identified with the
creation, division, merger, abolition and alteration of boundaries of
local government units, never with the concept of legislative
apportionment.

Nature and Areas of Application.

The legislative district that Article VI, Section 5 speaks of

may, in a sense, be called a political unit because it is the basis for
the election of a member of the House of Representatives and
members of the local legislative body. It is not, however, a political
subdivision through which functions of government are carried
out. It can more appropriately be described as a representative unit
that may or may not encompass the whole of a city or a province,
but unlike the latter, it is not a corporate unit. Not being a
corporate unit, a district does not act for and in behalf of the people
comprising the district; it merely delineates the areas occupied by
the people who will choose a representative in their national
affairs. Unlike a province, which has a governor; a city or a
municipality, which has a mayor; and a barangay, which has
a punong barangay, a district does not have its own chief
executive. The role of the congressman that it elects is to ensure
that the voice of the people of the district is heard in Congress, not
to oversee the affairs of the legislative district. Not being a
corporate unit also signifies that it has no legal personality that
must be created or dissolved and has no capacity to act. Hence,
there is no need for any plebiscite in the creation, dissolution or
any other similar action on a legislative district.

The local government units, on the other hand, are political

and corporate units. They
are
the
territorial
and
political
[35]
subdivisions of the state.
They possess legal personality on the
authority of the Constitution and by action of the Legislature. The
Constitution defines them as entities that Congress can, by law,
create, divide, abolish, merge; or whose boundaries can be altered
based on standards again established by both the Constitution and
the Legislature.[36] A local government units corporate existence
begins upon the election and qualification of its chief executive and
a majority of the members of its Sanggunian.[37]

As a political subdivision, a local government unit is an

instrumentality of the state in carrying out the functions of
government.[38] As a corporate entity with a distinct and separate
juridical personality from the State, it exercises special functions for
the sole benefit of its constituents. It acts as an agency of the
community in the administration of local affairs[39] and the mediums
through which the people act in their corporate capacity on local
concerns.[40] In light of these roles, the Constitution saw it fit to
expressly secure the consent of the people affected by the
creation, division, merger, abolition or alteration of boundaries of
local government units through a plebiscite.

These considerations clearly show the distinctions between a

legislative apportionment or reapportionment and the division of a
local government unit. Historically and by its intrinsic nature, a
legislative apportionment does not mean, and does not even imply,
a division of a local government unit where the apportionment
takes place. Thus, the plebiscite requirement that applies to the
division of a province, city, municipality or barangay under the
Local Government Code should not apply to and be a requisite for
the validity of a legislative apportionment or reapportionment.

authority granted to Congress under Article VI, Section 5(4) of the

Constitution. Its core provision Section 1 provides:

SECTION 1. Legislative Districts. The lone

legislative district of the City of Cagayan de Oro is
hereby apportioned to commence in the next
national elections after the effectivity of this Act.
Henceforth,
barangays
Bonbon,
Bayabas,
Kauswagan,
Carmen,
Patag,
Bulua,
Iponan,
Baikingon, San Simon, Pagatpat, Canitoan, Balulang,
Lumbia, Pagalungan, Tagpangi, Taglimao, Tuburan,
Pigsag-an,
Tumpagon,
Bayanga,
Mambuaya,
Dansulihon, Tignapoloan and Bisigan shall comprise
the first district while barangays Macabalan, Puntod,
Consolacion, Camaman-an, Nazareth, Macansandig,
Indahag, Lapasan, Gusa, Cugman, FS Catanico,
Tablon, Agusan, Puerto, Bugo and Balubal and all
urban barangays from Barangay 1 to Barangay 40
shall comprise the second district.

R.A. No. 9371 and COMELEC Res. No. 7837

Under these wordings, no division of Cagayan de Oro City as

a political and corporate entity takes place or is mandated.
Cagayan de Oro City politically remains a single unit and its
administration is not divided along territorial lines. Its territory
remains completely whole and intact; there is only the addition of
another legislative district and the delineation of the city into two
districts for purposes of representation in the House of
Representatives. Thus, Article X, Section 10 of the Constitution
does not come into play and no plebiscite is necessary to validly
apportion Cagayan de Oro City into two districts.

R.A. No. 9371 is, on its face, purely and simply a

reapportionment legislation passed in accordance with the

Admittedly, the legislative reapportionment carries effects

beyond the creation of another congressional district in the city by

providing, as reflected in COMELEC Resolution No. 7837, for

additional Sangguniang Panglunsod seats to be voted for along the
lines of the congressional apportionment made. The effect on
the Sangguniang Panglunsod, however, is not directly traceable to
R.A. No. 9371 but to another law R.A. No. 6636[41] whose Section 3
provides:

SECTION 3. Other Cities. The provision of any law to

the contrary notwithstanding the City of Cebu, City of
Davao, and any other city with more than one
representative district shall have eight (8) councilors
for each district who shall be residents thereof to be
elected by the qualified voters therein, provided that
the cities of Cagayan de Oro, Zamboanga, Bacolod,
Iloilo and other cities comprising a representative
district shall have twelve (12) councilors each and all
other cities shall have ten (10) councilors each to be
elected at large by the qualified voters of the said
cities: Provided, That in no case shall the present
number of councilors according to their charters be
reduced.

congressman, Cagayan de Oro now effectively has two

congressmen, each one representing 250,000 of the citys
population. In terms of services for city residents, this easily means
better access to their congressman since each one now services
only 250,000 constituents as against the 500,000 he used to
represent. The
same
goes
true
for
the Sangguniang
Panglungsod with its ranks increased from 12 to 16 since each
legislative district now has 8 councilors. In representation terms,
the fewer constituents represented translate to a greater voice for
each individual city resident in Congress and in the Sanggunian;
each congressman and each councilor represents both a smaller
area and fewer constituents whose fewer numbers are now
concentrated in each representative. The City, for its part, now has
twice the number of congressmen speaking for it and voting in the
halls of Congress. Since the total number of congressmen in the
country has not increased to the point of doubling its numbers, the
presence of two congressman (instead of one) from the same city
cannot but be a quantitative and proportional improvement in the
representation of Cagayan de Oro City in Congress.

Equality of representation.
However, neither does this law have the effect of dividing the City
of Cagayan de Oro into two political and corporate units and
territories. Rather than divide the city either territorially or as a
corporate entity, the effect is merely to enhance voter
representation by giving each city voter more and greater say, both
in Congress and in the Sangguniang Panglunsod.

The petitioner argues that the distribution of the legislative

districts is unequal. District 1 has only 93,719 registered voters
while District 2 has 127,071. District 1 is composed mostly of
rural barangays while District 2 is composed mostly of
urban barangays.[43] Thus, R.A. No. 9371 violates the principle of
equality of representation.

To illustrate this effect, before the reapportionment,

Cagayan de Oro had only one congressman and 12 city council
members citywide for its population of approximately 500,000.
[42]
By having two legislative districts, each of them with one

A clarification must be made. The law clearly provides that the

basis for districting shall be the number of the inhabitants of a city
or a province, not the number of registered voters therein. We
settled this very same question in Herrera v. COMELEC[44] when we

interpreted
a
provision
in R.A.
No.
7166 and COMELEC Resolution No. 2313
that
applied
to
the Province of Guimaras. We
categorically
ruled
that the basis for districting is the number of inhabitants of the Prov
ince of Guimaras by municipality based on theofficial 1995 Census
of Population as certified to by Tomas P. Africa, Administrator of the
National Statistics Office.

The petitioner, unfortunately, did not provide information about the

actual population of Cagayan de Oro City. However, we take judicial
notice of the August 2007 census of the National Statistics Office
which shows that barangays comprising Cagayan de Oros first
district have a total population of 254,644, while the second district
has 299,322 residents. Undeniably, these figures show a disparity
in the population sizes of the districts. [45] The Constitution, however,
does not require mathematical exactitude or rigid equality as a
standard in gauging equality of representation. [46] In fact, for cities,
all it asks is that each city with a population of at least two hundred
fifty thousand shall have one representative, while ensuring
representation for every province regardless of the size of its
population. To ensure quality representation through commonality
of interests and ease of access by the representative to the
constituents, all that the Constitution requires is that every
legislative
district
should
comprise, as
far
as
practicable, contiguous, compact, and adjacent territory. Thus, the
Constitution leaves the local government units as they are found
and does not require their division, merger or transfer to satisfy the
numerical standard it imposes. Its requirements are satisfied
despite some numerical disparity if the units are contiguous,
compact and adjacent as far as practicable.
The petitioners contention that there is a resulting inequality in the
division of Cagayan de Oro City into two districts because
the barangays in the first district are mostly ruralbarangays while
the second district is mostly urban, is largely unsubstantiated. But

even if backed up by proper proof, we cannot question the division

on the basis of the difference in the barangays levels of
development or developmental focus as these are not part of the
constitutional
standards for legislative apportionment or
reapportionment.What the components of the two districts of
Cagayan de Oro would be is a matter for the lawmakers to
determine as a matter of policy. In the absence of any grave abuse
of discretion or violation of the established legal parameters, this
Court cannot intrude into the wisdom of these policies.[47]

WHEREFORE, we hereby DISMISS the petition for lack of

merit. Costs against the petitioner.

SO ORDERED.

NAVARRO vs. ERMITA

On November 10, 2006, petitioners Rodolfo G. Navarro,

RESOLUTION

Victor F. Bernal and Rene O. Medina, former political leaders of

Surigao del Norte, filed before this Court a petition for certiorari and

NACHURA, J.:

prohibition (G.R. No. 175158) challenging the constitutionality of

For consideration of the Court is the Urgent Motion to Recall
Entry of Judgment dated October 20, 2010 filed by Movant-

R.A. No. 9355.[6] The Court dismissed the petition on technical

grounds. Their motion for reconsideration was also denied. [7]

Intervenors[1] 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.

present hereunder a brief background of the relevant antecedents

On October 2, 2006, the President of the Republic approved
into law Republic Act (R.A.) No. 9355 (An Act Creating the Province
of Dinagat Islands).[2] On December 3, 2006, the Commission on
Elections (COMELEC) conducted the mandatory plebiscite for the
ratification of the creation of the province under the Local
affirmative

Code
votes

(LGC).[3] The
and

plebiscite

63,502

yielded

negative

the approval of the people from both the

mother

69,943

votes. [4] With

province

of

Surigao del
Norte and the Province of Dinagat Islands (Dinagat), the President
appointed the interim set of provincial officials who took their oath
of

office

on January

26,

2007. Later,

the Province of Surigao

for certiorari[8] seeking

To provide a clear perspective of the instant motion, we

Government

Undaunted, petitioners, as taxpayers and residents of

during

the May

14,

2007 synchronized elections, the Dinagatnons elected their new set

del
to

Norte,

nullify

filed

R.A.

No.

another
9355

petition
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 on

ly 106,951, failing to comply with Section 10, Article X of the
Constitution and of Section 461 of the LGC, on both counts, viz.
Constitution, Article X Local Government
Section 10. No province, city, municipality,
or barangay may be created, divided, merged,
abolished,
or
its
boundary
substantially
altered, except in accordance with the criteria
established in the local government code and
subject to the approval by a majority of the votes
cast in a plebiscite in the political units directly
affected.

of provincial officials who assumed office on July 1, 2007.[5]

LGC, Title IV, Chapter I

Section 461. Requisites for Creation. (a) A

province may be created if it has an average annual
income, as certified by the Department of Finance, of
not less than Twenty million pesos (P20,000,000.00)
based on 1991 constant prices and either of the
following requisites:
(i)

(ii)

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

a continuous territory of at
least two thousand (2,000) square
kilometers, as certified by the
Lands Management Bureau; or
a population of not less than two
hundred fifty thousand (250,000)
inhabitants as certified by the National
Statistics Office:

expressly provided in the law.[11]

The Republic, represented by the Office of the Solicitor
General,

and

Dinagat

filed

their

respective

reconsideration of the Decision. In its Resolution

[12]

motions

for

datedMay 12,

2010,[13] the Court denied the said motions.[14]

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.

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

(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.

reconsideration. These motions were eventually noted without

(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.)

Motion for Leave to Intervene and to File and to Admit Intervenors

action by this Court in its June 29, 2010 Resolution.[15]

Meanwhile, the movants-intervenors filed on June 18, 2010 a
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

On February

10,

2010,

the

Court

rendered

its

Decision[9] 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

RESOLUTION NO. 8790

WHEREAS, Dinagat Islands, consisting of seven (7)
municipalities, were previously components of the
First Legislative District of the Province of Surigao
del Norte. In December 2006 pursuant to Republic
Act No. 9355, the Province of Dinagat Island[s] was
created and its creation was ratified on 02
December 2006 in the Plebiscite for this purpose;

WHEREAS, as a province, Dinagat Islands was, for

purposes of the May 10, 2010 National and Local
Elections, allocated one (1) seat for Governor, one
(1) seat for Vice Governor, one (1) for congressional
seat, and ten (10) Sangguniang Panlalawigan seats
pursuant to Resolution No. 8670 dated 16
September 2009;

WHEREAS, the Supreme Court in G.R. No. 180050

entitled Rodolfo Navarro, et al., vs. Executive
Secretary Eduardo Ermita, as representative of the
President of the Philippines, et al. rendered a
Decision, dated 10 February 2010, declaring
Republic Act No. 9355 unconstitutional for failure to
comply with the criteria for the creation of a
province prescribed in Sec. 461 of the Local
Government Code in relation to Sec. 10, Art. X, of
the 1987 Constitution;
WHEREAS, respondents intend to file Motion[s] for
Reconsideration on the above decision of the
Supreme Court;
WHEREAS, the electoral data relative to the: (1)
position for Member, House of Representatives
representing the lone congressional district of
Dinagat Islands, (2) names of the candidates for the
aforementioned position, (3) position for Governor,
Dinagat Islands, (4) names of the candidates for the
said position, (5) position of the Vice Governor, (6)
the names of the candidates for the said position, (7)
positions for the ten (10) Sangguniang Panlalawigan
Members and, [8] all the names of the candidates
for Sangguniang Panlalawigan Members, have
already been configured into the system and can no
longer be revised within the remaining period before
the elections on May 10, 2010.
NOW, THEREFORE, with the current system
configuration, and depending on whether the
Decision of the Supreme Court in Navarro vs. Ermita
is reconsidered or not, the Commission RESOLVED,
as it hereby RESOLVES, to declare that:

a.

If the Decision is reversed, there will be

no problem since the current system
configuration is in line
with the
reconsidered Decision, meaning that the
Province
of
Dinagat
Islands
and
the Province of Surigao del Norte remain
as two (2) separate provinces;
b.
If the Decision becomes final and
executory
before
the
election, the
Province of Dinagat Islands will revert to
its previous status as part of the First
Legislative District, Surigao del Norte.
But because of the current system
configuration, the ballots for the Province
of Dinagat Islands will, for the positions of
Member,
House of Representatives,
Governor, Vice Governor and Members,
Sangguniang Panlalawigan, bear only the
names of the candidates for the said
positions.
Conversely, the ballots for the First
Legislative District of Surigao del Norte,
will, for the position of Governor, Vice
Governor,
Member,
House
of
Representatives, First District of Surigao
del Norte and Members, Sangguniang
Panlalawigan, show only candidates for
the
said
position. Likewise,
the
whole Province of Surigao del Norte, will,
for the position of Governor and Vice
Governor, bear only the names of the
candidates for the said position[s].
Consequently, the voters of the Province
of Dinagat Islands will not be able to vote
for
the
candidates
of
Members,
Sangguniang Panlalawigan, and Member,
House
[of]
Representatives,
First
Legislative District, Surigao del Norte, and
candidates for Governor and Vice
Governor
for
Surigao
del
Norte. Meanwhile, voters of the First
Legislative District of Surigao del Norte,

will not be able to vote for Members,

Sangguniang Panlalawigan and Member,
House
of
Representatives, Dinagat Islands. Also,
the
voters
of
the
whole Province of Surigao del Norte, will
not be able to vote for the Governor and
Vice Governor, Dinagat Islands. Given this
situation, the Commission will postpone
the elections for Governor, Vice Governor,
Member, House of Representatives, First
Legislative District, Surigao del Norte, and
Members,
Sangguniang Panlalawigan,
First Legislative District, Surigao del Norte,
because the election will result in [a]
failure to elect, since, in actuality, there
are no candidates for Governor, Vice
Governor,
Members,
Sangguniang
Panlalawigan, First Legislative District, and
Member, House of Representatives, First
Legislative District (with Dinagat Islands)
of Surigao del Norte.
c.

xxxx

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.

They further alleged that, because they are the duly elected
officials of Surigao del Norte whose positions will be affected by the
nullification of the election results in the event that the May 12,
2010 Resolution is not reversed, they have a legal interest in the
instant case and would be directly affected by the declaration of
nullity of R.A. No. 9355.Simply put, movants-intervenors election to
their respective offices would necessarily be annulled since Dinagat
Islands will revert to its previous status as part of the First
Legislative District of Surigao del Norte and a special election will
have to be conducted for governor, vice governor, and House of
Representatives member and Sangguniang Panlalawigan member
for the First Legislative District of Surigao del Norte. Moreover, as
residents of Surigao del Norte and as public servants representing
the interests of their constituents, they have a clear and strong
interest in the outcome of this case inasmuch as the reversion of
Dinagat as part of the First Legislative District of Surigao del Norte
will

affect

the

latter

province

such

that:

(1)

the

whole

administrative set-up of the province will have to be restructured;

(2) the services of many employees will have to be terminated; (3)
contracts will have to be invalidated; and (4) projects and other
developments will have to be discontinued. In addition, they claim
that their rights cannot be adequately pursued and protected in
any other proceeding since their rights would be foreclosed if the
May 12, 2010 Resolution would attain finality.
In their motion for reconsideration of the May 12, 2010 Resolution,

SO ORDERED.

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

Surigao del Norte, respectively, that they became possessed with

exemption from the application of the minimum land area

legal interest in this controversy.

requirement; and (3) that the Operative Fact Doctrine is applicable

in the instant case.

On October 5, 2010, the Court issued an order for Entry of

Judgment, stating that the decision in this case had become final

In the Resolution dated July 20, 2010, [16] the Court denied

and executory on May 18, 2010. Hence, the above motion.

the Motion for Leave to Intervene and to File and to Admit

Intervenors Motion for Reconsideration of the Resolution dated May

At the outset, it must be clarified that this Resolution delves solely

12, 2010 on the ground that the allowance or disallowance of a

on the instant Urgent Motion to Recall Entry of Judgment of

motion to intervene is addressed to the sound discretion of the

movants-intervenors,

Court, and that the appropriate time to file the said motion was

reconsideration

before and not after the resolution of this case.

parties, and neither on Dinagats Urgent Omnibus Motion, which our

On September 7, 2010, movants-intervenors filed a Motion for

Reconsideration of the July 20, 2010 Resolution, citing several
rulings[17] of the Court, allowing intervention as an exception to
Section 2, Rule 19 of the Rules of Court that it should be filed at any
time before the rendition of judgment. They alleged that, prior to
the May 10, 2010 elections, their legal interest in this case was not
yet existent. They averred that prior to the May 10, 2010 elections,
they were unaware of the proceedings in this case. Even for the
sake of argument that they had notice of the pendency of the case,
they pointed out that prior to the said elections, Sol T. Matugas was
a simple resident of Surigao del Norte, Arturo Carlos A. Egay, Jr. was
a member of the Sangguniang Panlalawigan of the Second District
of Surigao del Norte, and Mamerto D. Galanida was the Municipal
Mayor of Socorro, Surigao del 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

not

on
of

the

second
the

motions

for

original

esteemed colleague, Mr. Justice Arturo D. Brion considers as

c.

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

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.)

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

intervention. Their

only

on

motion

the
for

timeliness

of

reconsideration

the
of

intended

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:

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

decision would definitely work to their disadvantage, nay, to their

postponed. Given such a scenario, movants-intervenors would not

utmost

have suffered any injury or adverse effect with respect to the

dispute. Such decision would also violate their right to due process,

reversion of Dinagat as part of Surigao del Norte since they would

a right that cries out for protection. Thus, it is imperative that the

simply have remained candidates for the respective positions they

movants-intervenors be heard on the merits of their cause. We are

have vied for and to which they have been elected.

not only a court of law, but also of justice and equity, such that our

prejudice,

without

even them being

parties to the

position and the dire repercussions of this controversy should be

For a party to have locus standi, one must allege such a personal

weighed on the scales of justice, rather than dismissed on account

stake in the outcome of the controversy as to assure that concrete

of mootness.

adverseness which sharpens the presentation of issues upon which

the

court

so

largely

depends

for

difficult

The moot and academic principle is not a magical formula that can

constitutional questions. Because constitutional cases are often

automatically dissuade the courts from resolving a case. Courts will

public actions in which the relief sought is likely to affect other

decide cases, otherwise moot and academic, if: (1) there is a grave

persons, a preliminary question frequently arises as to this interest

violation of the Constitution; (2) there is an exceptional character of

in the constitutional question raised.

illumination

of

[19]

the situation and the paramount public interest is involved; (3) the
constitutional

issue

raised

requires

formation

of

controlling

It cannot be denied that movants-intervenors will suffer direct

principles to guide the bench, the bar, and the public; and (4) the

injury in the event their Urgent Motion to Recall Entry of Judgment

case is capable of repetition yet evading review. [20]The second

dated October 29, 2010 is denied and their Motion for Leave to

exception attends this case.

Intervene and to File and to Admit Intervenors Motion for

Reconsideration of the Resolution dated May 12, 2010 is denied

This Court had taken a liberal attitude in the case of David v.

with finality. Indeed, they have sufficiently shown that they have a

Macapagal-Arroyo,[21] where technicalities of procedure on locus

personal and substantial interest in the case, such that if the May

standi were brushed aside, because the constitutional issues raised

12, 2010 Resolution be not reconsidered, their election to their

were of paramount public interest or of transcendental importance

respective positions during the May 10, 2010 polls and its

deserving the attention of the Court. Along parallel lines, the

concomitant

to

motion for intervention should be given due course since movants-

naught. Given their unique circumstances, movants-intervenors

intervenors have shown their substantial legal interest in the

should not be left without any remedy before this Court simply

outcome

because their interest in this case became manifest only after the

themselves, and because of the novelty, gravity, and weight of the

case had already been decided. The consequences of such a

issues involved.

effects

would

all

be

nullified

and

be

put

of

this

case,

even

much

more

than

petitioners

arguments raised by movants-intervenors deserve affirmative

Undeniably, the motion for intervention and the motion for

consideration.

reconsideration of the May 12, 2010 Resolution of movantsintervenors is akin to the right to appeal the judgment of a case,

It must be borne in mind that the central policy considerations in

which, though merely a statutory right that must comply with the

the creation of local government units are economic viability,

requirements of the rules, is an essential part of our judicial

efficient administration, and capability to deliver basic services to

system, such that courts should proceed with caution not to

their constituents. The criteria prescribed by the LGC, i.e., income,

deprive a party of the right to question the judgment and its

population and land area, are all designed to accomplish these

effects, and ensure that every party-litigant, including those who

results. In this light, Congress, in its collective wisdom, has debated

would be directly affected, would have the amplest opportunity for

on the relative weight of each of these three criteria, placing

the proper and just disposition of their cause, freed from the

emphasis on which of them should enjoy preferential consideration.

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

Without doubt, the primordial criterion in the creation of local

government

units,

particularly

of

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

never be able to become a province because nobody

wants to go to your place. Why? Because you never
have any reason for economic viability.
xxxx
CHAIRMAN PIMENTEL. Okay, what about land area?
HON. LUMAUIG. 1,500 square kilometers

HON. ALFELOR. Income is mandatory. We can even

have this doubled because we thought

HON. ANGARA. Walang problema yon, in fact thats

not very critical, yong land area because

CHAIRMAN CUENCO. In other words, the primordial

consideration here is the economic viability of the
new local government unit, the new province?

CHAIRMAN PIMENTEL. Okay, ya, our, the Senate

version is 3.5, 3,500 square meters, ah, square
kilometers.

xxxx
HON. LAGUDA. The reason why we are willing to
increase the income, double than the House version,
because we also believe that economic viability is
really a minimum. Land area and population are
functions really of the viability of the area, because
you have an income level which would be the trigger
point for economic development, population will
naturally increase because there will be an
immigration. However, if you disallow the particular
area from being converted into a province because
of the population problems in the beginning, it will
never be able to reach the point where it could
become a province simply because it will never have
the economic take off for it to trigger off that
economic development.
Now, were saying that maybe Fourteen Million Pesos
is a floor area where it could pay for overhead and
provide a 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

HON. LAGUDA. Ne, Ne. A province is constituted for

the purpose of administrative efficiency and delivery
of basic services.
CHAIRMAN PIMENTEL. Right.
HON. LAGUDA. Actually, when you come down to it,
when government was instituted, there is only one
central government and then everybody falls under
that. But it was later on subdivided into provinces for
purposes of administrative efficiency.
CHAIRMAN PIMENTEL. Okay.
HON. LAGUDA. Now, what 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.

territory need not be contiguous if it comprises two

(2) or more islands.

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.

(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.

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]

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

LGC-IRR: ARTICLE 14. Barangays. (a) Creation of

barangays by the sangguniang panlalawigan shall
require prior recommendation of the sangguniang
bayan.
(b) New barangays in the municipalities within MMA
shall be created only by Act of Congress, subject to
the limitations and requirements prescribed in this
Article.
(c) Notwithstanding the population requirement, a
barangay may be created in the indigenous cultural
communities
by
Act
of
Congress
upon
recommendation of the LGU or LGUs where the
cultural community is located.
(d) A barangay shall not be created unless the
following requisites are present:
(1) Population which shall not be less than two
thousand
(2,000)
inhabitants,
except
in
municipalities and cities within MMA and other
metropolitan political subdivisions as may be
created by law, or in highly-urbanized cities
where such territory shall have a population of at
least five thousand (5,000) inhabitants, as
certified by the NSO. The creation of a barangay
shall not reduce the population of the original
barangay or barangays to less than the
prescribed minimum/
(2) Land Area which must be contiguous, unless
comprised by two (2) or more islands. The

territorial jurisdiction of a barangay sought to be

created shall be properly identified by metes and
bounds or by more or less permanent natural
boundaries.
Municipality:
LGC: SEC. 442. Requisites for Creation. (a) A
municipality may be created if it has an average
annual income, as certified by the provincial
treasurer, or at least Two million five hundred
thousand pesos (P2,500,000.00) for the last two (2)
consecutive years based on the 1991 constant
prices; a population of at least twenty-five thousand
(25,000) inhabitants as certified by the National
Statistics
Office;
and
a
contiguous
territory of at least fifty (50) square kilometers as
certified by the Lands
Management Bureau: Provided, That the creation
thereof shall not reduce the land area, population or
income of the original municipality or municipalities
at the time of said creation to less than the
minimum requirements prescribed herein.
(b) The territorial jurisdiction of a newly-created
municipality shall be properly identified by metes
and bounds. The requirement on land area shall
not apply where the municipality proposed to
be created is composed of one (1) or more
islands. The territory need not be contiguous if it
comprises two (2) or more islands.
(c) The average annual income shall include the
income accruing to the general fund of the
municipality concerned, exclusive of special funds,
transfers and non-recurring income.
(d) Municipalities existing as of the date of effectivity
of this Code shall continue to exist and operate as
such. Existing municipal districts organized pursuant
to presidential issuances or executive orders and
which have their respective set of elective municipal
officials holding office at the time of the effectivity of
this Code shall henceforth be considered regular
municipalities.

LGC-IRR: ARTICLE 13. Municipalities. (a) Requisites

for Creation A municipality shall not be created
unless the following requisites are present:
(i)

(ii)

(iii)

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;
Population which shall not be less than
twenty five thousand (25,000) inhabitants, as
certified by NSO; and
Land area which must be contiguous with
an area of at least fifty (50) square
kilometers, as certified by LMB. The territory
need not be contiguous if it comprises two (2)
or more islands. The requirement on land
area shall not apply where the proposed
municipality is composed of one (1) or
more islands. The territorial jurisdiction of a
municipality sought to be created shall be
properly identified by metes and bounds.

The creation of a new municipality shall not reduce

the land area, population, and income of the original
LGU or LGUs at the time of said creation to less than
the prescribed minimum requirements. All expenses
incidental to the creation shall be borne by the
petitioners.

City:
LGC: SEC. 450. Requisites for Creation. (a) A
municipality or a cluster of barangays may be
converted into a component city if it has an average
annual income, as certified by the Department of

Finance, of at least Twenty million pesos

(P20,000,000.00) for the last two (2) consecutive
years based on 1991 constant prices, and if it has
either of the following requisities:
(i)
(ii)

a contiguous territory of at least one

hundred (100) square kilometers, as certified
by the Lands Management Bureau; or,
a population of not less than one
hundred fifty thousand (150,000) inhabitants,
as certified by the National Statistics Office:
Provided, That, the creation thereof shall not
reduce the land area, population, and income
of the original unit or units at the time of said
creation to less than the minimum
requirements prescribed herein.

(b) The territorial jurisdiction of a newly-created city

shall be properly identified by metes and
bounds. The requirement on land area shall not
apply where the city proposed to be created is
composed of one (1) or more islands. The
territory need not be contiguous if it comprises two
(2) or more islands.
(c) The average annual income shall include the
income accruing to the general fund, exclusive of
special funds, transfers, and non-recurring income.
LGC-IRR: ARTICLE 11. Cities. (a) Requisites for
creation A city shall not be created unless the
following requisites on income and either population
or land area are present:
(1) Income An average annual income of not less
than Twenty Million Pesos (P20,000,000.00), for
the immediately preceding two (2) consecutive
years based on 1991 constant prices, as certified
by DOF. The average annual income shall include
the income accruing to the general fund,
exclusive of special funds, special accounts,
transfers, and nonrecurring income; and
(2) Population or land area Population which shall
not be less than one hundred fifty thousand
(150,000) inhabitants, as certified by the NSO; or
land area which must be contiguous with an area

of at least one hundred (100) square kilometers,

as certified by LMB. The territory need not be
contiguous if it comprises two (2) or more islands
or is separated by a chartered city or cities which
do not contribute to the income of the
province. The land area requirement shall
not apply where the proposed city is
composed of one (1) or more islands. The
territorial jurisdiction of a city sought to be
created shall be properly identified by metes and
bounds.

The creation of a new city shall not reduce the land

area, population, and income of the original LGU or
LGUs at the time of said creation to less than the
prescribed minimum requirements.All expenses
incidental to the creation shall be borne by the
petitioners.
Provinces:
LGC: SEC. 461. Requisites for Creation. (a) A
province may be created if it has an average annual
income, as certified by the Department of Finance,
of
not
less
than
Twenty
million
pesos
(P20,000,000.00) based on 1991 prices and either of
the following requisites:
(i)

(ii)

a contiguous territory of at least two

thousand (2,000) square kilometers, as
certified by the Lands Management Bureau;
or,
a population of not less than two
hundred fifty thousand (250,000) inhabitants
as certified by the National Statistics Office:

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.
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

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.

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,

This declaration of policy is echoed in Article 3(a) of the LGC-

considering the physical configuration of the Philippine archipelago,

IRR[26] and in the Whereas clauses of Administrative Order No. 270,

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-

[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

CHAIRMAN
ALFELOR. Can
we
give
time
Congressman Chiongbian,[28] with respect to his

to

minimum land area requirements for prospective local government

CHAIRMAN LINA. Okay.

units should be liberally construed in order to achieve the desired

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.

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:

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.

see why, we should put this stringent conditions to

the private people of the devolution that they are
seeking.

Now, I would like to read into the record the letter of

Sen. Pimentel, dated November 2, 1989. This was
practically about a year after 7166 was approved by
the House, House Bill 7166.

So, 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.

On November 2, 1989, the Senator wrote me:

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.

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

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 RagayGulf. From
Ragay there is a long stretch of coastal area. From
Albay going to Ragay, very few governors ever tread
[there] before, even today. That area now is infested
with NPA. That is the area of Congressman Andaya.

Now, we thought that in order to stimulate growth,

maybe provincial aid can be extended to these
areas. With a big or a large area of a province, a
certain administrator or provincial governor definitely
will have no sufficient time. For me, if we really would
like to stimulate growth, I believe that an area where
there is physical or geographical impossibilities,
where administrators can penetrate, I think we have
to create certain provisions in the law where maybe
we can treat it with special considerations.
Now, we went over the graduate scale of the
Philipppine Local Government Data as far as
provinces are concerned. It is very surprising that
there are provinces here which only composed of six
municipalities,
eight
municipalities,
seven
municipalities. Like in Cagayan, Tuguegarao, there
are six municipalities. Ah, excuse me, Batanes.
CHAIRMAN LINA. Will you look at the case of --- how
many municipalities are there in Batanes province?
CHAIRMAN ALFELOR. Batanes is only six.
CHAIRMAN LINA. Six town. Siquijor?
CHAIRMAN ALFELOR. Siquijor. It is region?
CHAIRMAN LINA. Seven.
CHAIRMAN ALFELOR.L Seven. Anim.
CHAIRMAN LINA. Six also.
CHAIRMAN ALFELOR. Six also.
CHAIRMAN LINA. It seems with a minimum number of
towns?
CHAIRMAN ALFELOR. The population of Siquijor is
only 70 thousand, not even one congressional
district. But tumaas in 1982. Camiguin, that is Region
9. Wala dito. Nagtataka nga ako ngayon.
CHAIRMAN LINA. Camiguin, Camiguin.

CHAIRMAN ALFELOR. That is region? Camiguin has

five municipalities, with a population of 63
thousand. But we do not hold it against the province
because maybe thats one stimulant where growth
can grow, can start. The land area for Camiguin is
only 229 square kilometers. So if we hard fast on
requirements of, we set a minimum for every
province, palagay ko we just leave it to legislation,
eh. Anyway, the Constitution is very clear that in
case we would like to divide, we submit it to a
plebiscite. Pabayaan natin ang tao. Kung maglalagay
tayo ng set ng minimum, tila yata mahihirapan tayo,
eh. Because what is really the thrust of the Local
Government Code? Growth. To devolve powers in
order for the community to have its own idea how
they will stimulate growth in their respective areas.
So, in every geographical condition, mayroon sariling
id[i]osyncracies
eh,
we
cannot
make
a
generalization.
CHAIRMAN LINA. Will the creation of a province,
carved out of the existing province because of some
geographical id[i]osyncracies, as you called it,
stimulate the economic growth in the area or will
substantial aid coming from the national government
to a particular area, say, to a municipality, achieve
the same purpose?
CHAIRMAN ALFELOR. Ano tayo dito sa budget. All
right, here is a province. Usually, tinitingnan lang
yun, provision eh, hindi na yung composition eh. You
are entitled to, say, 20% of the area.
Theres a province of Camarines Sur which have the
same share with that of Camiguin and Siquijor, but
Camiguin is 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]

autonomy as defined under the Constitution. It was also

mandated by the Constitution that a local government code shall

The

matters

raised

Committee

meeting

Congress

to

during
clearly

promote

underdeveloped

the

said

show

the

Bicameral
manifest

development

and

in

Conference
intention

the

uninhabited

be enacted by Congress, to wit

of

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.)

previously

land

areas

by allowing them to directly share in

the allocation of funds under the

national

budget. It should be

remembered that, under Sections 284 and 285 of the LGC, the IRA
is given back to local governments, and the sharing is based on
land area, population, and local revenue.[30]
Elementary is the principle that, if the literal application of the law
results in absurdity, impossibility, or injustice, then courts may
resort to extrinsic aids of statutory construction, such as the

These State policies are the very reason for the enactment

legislative history of the law, [31] or may consider the implementing

of the LGC, with the view to attain decentralization and countryside

rules and regulations and pertinent executive issuances in the

development. Congress saw that the old LGC, Batas Pambansa

nature of executive and/or legislative construction. Pursuant to this

Bilang 337, had to be replaced with a new law, now the LGC of

principle,

1991, which is more dynamic and cognizant of the needs of

Article

9(2)

of

the

LGC-IRR

should

be

deemed

the Philippines as an archipelagic country. This accounts for the

incorporated in the basic law, the LGC.

exemption from the land area requirement of local government

It is well to remember that the LGC-IRR was formulated by

units composed of one or more islands, as expressly stated under

the Oversight Committee consisting of members of both the

Sections 442 and 450 of the LGC, with respect to the creation of

Executive

Section

municipalities and cities, but inadvertently omitted from Section

Oversight

461 with respect to the creation of provinces.Hence, the void or

Committee shall formulate and issue the appropriate rules and

missing detail was filled in by the Oversight Committee in the LGC-

regulations

IRR.

533[32] of

and
the

Legislative
LGC. As

departments,

Section

necessary

for

533
the

pursuant

provides,
efficient

the
and

to

effective

implementation of any and all provisions of this Code,

thereby ensuring compliance with the principles of local

With three (3) members each from both the Senate and the

legislative powers, Congress breathed flesh and blood into that

House of Representatives, particularly the chairpersons of their

exemption in Article 9(2) of the LGC-IRR and transformed it into law

respective Committees on Local Government, it cannot be gainsaid

when it enacted R.A. No. 9355 creating the Island Province of

that the inclusion by the Oversight Committee of the exemption

Dinagat.

from the land area requirement with respect to the creation of

provinces consisting of one (1) or more islands was intended by

Further, the bill that eventually became R.A. No. 9355 was

Congress, but unfortunately not expressly stated in Section 461 of

filed and favorably voted upon in both Chambers of Congress. Such

the LGC, and this intent was echoed through an express provision

acts of both Chambers of Congress definitively show the clear

in the LGC-IRR. To be sure, the Oversight Committee did not just

legislative intent to incorporate into the LGC that exemption from

arbitrarily and whimsically insert such an exemption in Article 9(2)

the land area requirement, with respect to the creation of a

of the LGC-IRR. The Oversight Committee evidently conducted due

province when it consists of one or more islands, as expressly

deliberation and consultations with all the concerned sectors of

provided only in the LGC-IRR. Thereby, and by necessity, the LGC

society and considered the operative principles of local autonomy

was amended by way of the enactment of R.A. No. 9355.

as
[33]

provided

in

Undoubtedly,

the
this

LGC

when

amounts

the

not

IRR

only

was
to

an

formulated.
executive

What is more, the land area, while considered as an

construction, entitled to great weight and respect from this Court,

indicator of viability of a local government unit, is not conclusive in

[34]

but to legislative construction as well, especially with the

showing that Dinagat cannot become a province, taking into

inclusion of representatives from the four leagues of local

account its average annual income of P82,696,433.23 at the time

government units as members of the Oversight Committee.

of its creation, as certified by the Bureau of Local Government

Finance, which is four times more than the minimum requirement

With the formulation of the LGC-IRR, which amounted to

of P20,000,000.00 for the creation of a province. The delivery of

both executive and legislative construction of the LGC, the many

basic services to its constituents has been proven possible and

details to implement the LGC had already been put in place, which

sustainable.Rather than looking at the results of the plebiscite and

Congress understood to be impractical and not too urgent to

the May 10, 2010 elections as mere fait accompli circumstances

immediately translate into direct amendments to the LGC. But

which cannot operate in favor of Dinagats existence as a province,

Congress, recognizing the capacity and viability of Dinagat to

they must be seen from the perspective that Dinagat is ready and

become a full-fledged province, enacted R.A. No. 9355, following

capable of becoming a province. This Court should not be

the exemption from the land area requirement, which, with respect

instrumental in stunting such capacity. As we have held in League

to the creation of provinces, can only be found as an express

of Cities of the Philippines v. Commission on Elections[35]

provision in the LGC-IRR. In effect, pursuant to its plenary

Ratio legis est anima. The spirit rather than

the letter of the law. A statute must be read
according to its spirit or intent, for what is within the
spirit is within the statute although it is not within its
letter, and that which is within the letter but not
within the spirit is not within the statute. Put a bit
differently, that which is within the intent of the
lawmaker is as much within the statute as if within
the letter, and that which is within the letter of the
statute is not within the statute unless within the
intent of the lawmakers. Withal, courts ought not to
interpret and should not accept an interpretation that
would defeat the intent of the law and its legislators.
So as it is exhorted to pass on a challenge against
the validity of an act of Congress, a co-equal branch
of government, it behooves the Court to have at
once one principle in mind: the presumption of
constitutionality of statutes. This presumption finds
its roots in the tri-partite system of government and
the corollary separation of powers, which enjoins the
three great departments of the government to
accord a becoming courtesy for each others acts,
and not to interfere inordinately with the exercise by
one of its official functions. Towards this end, courts
ought to reject assaults against the validity of
statutes,
barring
of
course
their
clear
unconstitutionality. To doubt is to sustain, the theory
in context being that the law is the product of
earnest studies by Congress to ensure that no
constitutional
prescription
or
concept
is
infringed. Consequently,
before
a
law
duly
challenged is nullified, an unequivocal breach of, or a
clear conflict with, the Constitution, not merely a
doubtful
or
argumentative
one,
must
be
demonstrated in such a manner as to leave no doubt
in the mind of the Court.

WHEREFORE, the Court resolved to:

1. GRANT the Urgent Motion to Recall Entry of Judgment by
movants-intervenors, dated and filed on October 29, 2010;

2. RECONSIDER and SET

ASIDE the

July

20,

2010

Resolution, and GRANT the Motion for Leave to Intervene and to

File and to Admit Intervenors Motion for Reconsideration of the
Resolution dated July 20, 2010;
3. GRANT the Intervenors Motion for Reconsideration of the
Resolution dated May 12, 2010. The May 12, 2010 Resolution
is RECONSIDERED and SET ASIDE. The provision in Article 9(2) of
the Rules and Regulations Implementing the Local Government
Code of 1991 stating, The land area requirement shall not apply
where the proposed province is composed of one (1) or more
islands, is declared VALID. Accordingly, Republic Act No. 9355 (An
Act

Creating

the

Province

of

Dinagat

Islands)

is

declared

asVALID 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.

G.R. No. 203974

April 22, 2014

AURELIO M. UMALI, Petitioner,

vs.
COMMISSION ON ELECTIONS, JULIUS CESAR V. VERGARA, and
THE CITY GOVERNMENT OF CABANATUAN, Respondents.
x-----------------------x
G.R. No. 204371
J.V. BAUTISTA, Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
DECISION
VELASCO, JR., J.:
Before the Court is the consolidated case for Petition for Certiorari and
Prohibition with prayer for injunctive relief, docket as G.R. No. 203974,
assailing Minute Resolution No. 12-0797 and Minute Resolution No. 120925 dated September 11, 2012 and October 16, 2012, respectively,
both promulgated by public respondent Commission on Elections
(COMELEC), and Petition for Mandamus, docketed G.R. No. 204371,
seeking to compel public respondent to implement the same.
1

The Facts
On July 11, 2011, the Sangguniang Panglungsod of Cabanatuan City
passed Resolution No. 183-2011, requesting the President to declare the
conversion of Cabanatuan City from a component city of the province of
Nueva Ecija into a highly urbanized city (HUC). Acceding to the request,
the President issued Presidential Proclamation No. 418, Series of 2012,
proclaiming the City of Cabanatuan as an HUC subject to "ratification in a
plebiscite by the qualified voters therein, as provided for in Section 453 of
the Local Government Code of 1991."
Respondent COMELEC, acting on the proclamation, issued the assailed
Minute Resolution No. 12-0797 which reads:

WHEREFORE, the Commission RESOLVED, as it hereby RESOLVES,

that for purposes of the plebiscite for the conversion of Cabanatuan City
from component city to highly-urbanized city, only those registered
residents of Cabanatuan City should participate in the said plebiscite.
The COMELEC based this resolution on Sec. 453 of the Local
Government Code of 1991 (LGC), citing conversion cases involving
Puerto Princesa City in Palawan, Tacloban City in Southern Leyte, and
Lapu-Lapu City in Cebu, where only the residents of the city proposed to
be converted were allowed to vote in the corresponding plebiscite.
In due time, petitioner Aurelio M. Umali, Governor of Nueva Ecija, filed a
Verified Motion for Reconsideration, maintaining that the proposed
conversion in question will necessarily and directly affect the mother
province of Nueva Ecija. His main argument is that Section 453 of the
LGC should be interpreted in conjunction with Sec. 10, Art. X of the
Constitution. He argues that while the conversion in question does not
involve the creation of a new or the dissolution of an existing city, the
spirit of the Constitutional provision calls for the people of the local
government unit (LGU) directly affected to vote in a plebiscite whenever
there is a material change in their rights and responsibilities. The phrase
"qualified voters therein" used in Sec. 453 of the LGC should then be
interpreted to refer to the qualified voters of the units directly affected by
the conversion and not just those in the component city proposed to be
upgraded. Petitioner Umali justified his position by enumerating the
various adverse effects of the Cabanatuan Citys conversion and how it
will cause material change not only in the political and economic rights of
the city and its residents but also of the province as a whole.
To the Verified Motion for Reconsideration, private respondent Julius
Cesar Vergara, city mayor of Cabanatuan, interposed an opposition on
the ground that Sec. 10, Art. X does not apply to conversions, which is
the meat of the matter. He likewise argues that a specific provision of the
LGC, Sec. 453, as couched, allows only the qualified voters of
Cabanatuan City to vote in the plebiscite. Lastly, private respondent
pointed out that when Santiago City was converted in 1994 from a
municipality to an independent component city pursuant to Republic Act
No. (RA) 7720, the plebiscite held was limited to the registered voters of
the then municipality of Santiago.
Following a hearing conducted on October 4, 2012, the COMELEC En
Banc on October 16, 2012, in E.M No. 12-045 (PLEB), by a vote of 53

2 ruled in favor of respondent Vergara through the assailed Minute

Resolution 12-0925. The dispositive portion reads:
4

The Commission, taking into consideration the arguments of counsels

including the Reply-memorandum of Oppositor, after due deliberation,
RESOLVED, as it hereby RESOLVES, as follows:
1) To DENY the Motion for Reconsideration of oppositor Governor
Aurelio M. Umali; and
2) To SCHEDULE the conduct of Plebiscite for the conversion of
Cabanatuan City from component city into highly-urbanized city
with registered residents only of Cabanatuan City to participate in
said plebiscite.
Let the Deputy Executive Director for Operations implement this
resolution.
SO ORDERED.
Hence, the Petition for Certiorari with prayer for injunctive relief, docketed
as G.R. No. 203974, on substantially the same arguments earlier taken
by petitioner Umali before the poll body. On the other hand, public
respondent COMELEC, through the Office of the Solicitor General,
maintained in its Comment that Cabanatuan City is merely being
converted from a component city into an HUC and that the political unit
directly affected by the conversion will only be the city itself. It argues that
in this instance, no political unit will be created, merged with another, or
will be removed from another LGU, and that no boundaries will be
altered. The conversion would merely reinforce the powers and
prerogatives already being exercised by the city, with the political units
probable elevation to that of an HUC as demanded by its compliance with
the criteria established under the LGC. Thus, the participation of the
voters of the entire province in the plebiscite will not be necessary.
Private respondent will later manifest that it is adopting the Comment of
the COMELEC.
Meanwhile, on October 25, 2012, respondent COMELEC promulgated
Resolution No. 9543, which adopted a calendar of activities and periods
of prohibited acts in connection with the conversion of Cabanatuan City
into an HUC. The Resolution set the conduct of the plebiscite on
December 1, 2012. Thereafter, a certain Dr. Rodolfo B. Punzalan filed a

Petition for Declaratory Relief which was raffled to the Regional Trial
Court (RTC), Branch 40 in Palayan City. In the said case, Punzalan
prayed that Minute Resolution No. 12-0797 be declared unconstitutional,
that the trial court decree that all qualified voters of the province of Nueva
Ecija be included in the plebiscite, and that a Temporary Restraining
Order (TRO) be issued enjoining public respondent from implementing
the questioned resolution. On October 19, 2012, the RTC granted the
prayer for a TRO.
On November 6, 2012, public respondent through Minute Resolution No.
12-0989 suspended the preparations for the event in view of the TRO
issued by the RTC. On November 27, 2012, the plebiscite was once
again rescheduled to give way to the May 13, 2013 national, local and
ARMM regional elections as per Resolution No. 9563.
After this development, petitioner J.V. Bautista, on December 3, 2012,
filed a case before this Court for Mandamus, docketed as G.R. No.
204371, praying that public respondent be ordered to schedule the
plebiscite either on December 15 or 22, 2012. Petitioner Bautista argued
that since the TRO issued by the RTC has already expired, the duty of
the public respondent to hold the plebiscite has become mandatory and
ministerial. Petitioner Bautista also alleged that the delay in holding the
plebiscite is inexcusable given the requirement that it should be held
within a period of 120 days form the date of the Presidents declaration.
In its Comment to the Bautista petition, public respondent justified its
position by arguing that mandamus will not issue to enforce a right which
is in substantial dispute. With all the legal conflicts surrounding the case,
it cannot be said that there is a clear showing of petitioner Bautistas
entitlement to the relief sought. Respondent COMELEC likewise relied on
Sec. 5 of the Omnibus Election Code to justify the postponements, citing
incidents of violence that ensued in the locality during the plebiscite
period.
After the conclusion of the 2013 elections, public respondent issued
Resolution No. 1353 scheduling the plebiscite to January 25, 2014.
However, a TRO was issued by this Court on January 15, 2014 in G.R.
No. 203974 to suspend the conduct of the plebiscite for Cabanatuan
Citys conversion. Given the intertwining factual milieu of the two petitions
before the Court, both cases were consolidated on March 18, 2014.
The Issue

The bone of contention in the present controversy boils down to whether

the qualified registered voters of the entire province of Nueva Ecija or
only those in Cabanatuan City can participate in the plebiscite called for
the conversion of Cabanatuan City from a component city into an HUC.

Respondents take the phrase "registered voters therein" in Sec. 453 as

referring only to the registered voters in the city being converted,
excluding in the process the voters in the remaining towns and cities of
Nueva Ecija.

Resolving the Petition for Certiorari either way will necessarily render the
Petition for Mandamus moot and academic for ultimately, the public
respondent will be ordered to hold the plebiscite. The only variation will
be as regards its participants.

Before proceeding to unravel the seeming conflict between the two

provisions, it is but proper that we ascertain first the relationship between
Sec. 10, Art. X of the Constitution and Sec. 453 of the LGC.

The Courts Ruling

First of all, we have to restate the general principle that legislative power
cannot be delegated. Nonetheless, the general rule barring delegation is
subject to certain exceptions allowed in the Constitution, namely:

The Petition for Certiorari is meritorious.

Sec. 453 of the LGC should be interpreted in accordance with Sec. 10,
Art. X of the Constitution
Petitioner Umali asseverates that Sec. 10, Art. X of the Constitution
should be the basis for determining the qualified voters who will
participate in the plebiscite to resolve the issue. Sec. 10, Art. X reads:
Section 10, Article X. No province, city, municipality, or barangay may
be created, divided, merged, abolished, or its boundary substantially
altered, except in accordance with the criteria established in the local
government code and subject to approval by a majority of the votes cast
in a plebiscite in the political units directly affected. (emphasis supplied)

(1) Delegation by Congress to the President of the power to fix

"tariff rates, import and export quotas, tonnage and wharfage
dues, and other duties or imposts within the framework of the
national development program of the Government" under Section
28(2) of Article VI of the Constitution; and
(2) Delegation of emergency powers by Congress to the
President "to exercise powers necessary and proper to carry out
a declared national policy" in times of war and other national
emergency under Section 23(2) of Article VI of the Constitution.

Petitioner Umali elucidates that the phrase "political units directly

affected" necessarily encompasses not only Cabanatuan City but the
entire province of Nueva Ecija. Hence, all the registered voters in the
province are qualified to cast their votes in resolving the proposed
conversion of Cabanatuan City.

The power to create, divide, merge, abolish or substantially alter

boundaries of provinces, cities, municipalities or barangays, which is
pertinent in the case at bar, is essentially legislative in nature. The
framers of the Constitution have, however, allowed for the delegation of
such power in Sec. 10, Art. X of the Constitution as long as (1) the criteria
prescribed in the LGC is met and (2) the creation, division, merger,
abolition or the substantial alteration of the boundaries is subject to the
approval by a majority vote in a plebiscite.

On the other hand, respondents invoke Sec. 453 of the LGC to support
their claim that only the City of Cabanatuan should be allowed to take
part in the voting. Sec. 453 states:

True enough, Congress delegated such power to the Sangguniang

Panlalawigan or Sangguniang Panlungsod to create barangays pursuant
to Sec. 6 of the LGC, which provides:

Section 453. Duty to Declare Highly Urbanized Status. It shall be the

duty of the President to declare a city as highly urbanized within thirty
(30) days after it shall have met the minimum requirements prescribed in
the immediately preceding Section, upon proper application therefor and
ratification in a plebiscite by the qualified voters therein. (emphasis
supplied)

Section 6. Authority to Create Local Government Units. - A local

government unit may be created, divided, merged, abolished, or its
boundaries substantially altered either by law enacted by Congress in the
case of a province, city, municipality, or any other political subdivision, or
by ordinance passed by the sangguniang panlalawigan or sangguniang
panlungsod concerned in the case of a barangay located within its

territorial jurisdiction, subject to such limitations and requirements

prescribed in this Code." (emphasis supplied)
The guidelines for the exercise of this authority have sufficiently been
outlined by the various LGC provisions detailing the requirements for the
creation of barangays , municipalities , cities , and provinces . Moreover,
compliance with the plebiscite requirement under the Constitution has
also been directed by the LGC under its Sec. 10, which reads:
6

Section 10. Plebiscite Requirement. No creation, division, merger,

abolition, or substantial alteration of boundaries of local government units
shall take effect unless approved by a majority of the votes cast in a
plebiscite called for the purpose in the political unit or units directly
affected." (emphasis supplied)
With the twin criteria of standard and plebiscite satisfied, the delegation
to LGUs of the power to create, divide, merge, abolish or substantially
alter boundaries has become a recognized exception to the doctrine of
non-delegation of legislative powers.
Likewise, legislative power was delegated to the President under Sec.
453 of the LGC quoted earlier, which states:
Section 453. Duty to Declare Highly Urbanized Status. It shall be the
duty of the President to declare a city as highly urbanized within thirty
(30) days after it shall have met the minimum requirements prescribed in
the immediately preceding Section, upon proper application therefor and
ratification in a plebiscite by the qualified voters therein.
In this case, the provision merely authorized the President to make a
determination on whether or not the requirements under Sec. 452 of the
LGC are complied with. The provision makes it ministerial for the
President, upon proper application, to declare a component city as highly
urbanized once the minimum requirements, which are based on
certifiable and measurable indices under Sec. 452, are satisfied. The
mandatory language "shall" used in the provision leaves the President
with no room for discretion.
10

In so doing, Sec. 453, in effect, automatically calls for the conduct of a

plebiscite for purposes of conversions once the requirements are met. No
further legislation is necessary before the city proposed to be converted
becomes eligible to become an HUC through ratification, as the basis for
the delegation of the legislative authority is the very LGC.

In view of the foregoing considerations, the Court concludes that the

source of the delegation of power to the LGUs under Sec. 6 of the LGC
and to the President under Sec. 453 of the same code is none other than
Sec. 10, Art. X of the Constitution.
Respondents, however, posit that Sec. 453 of the LGC is actually outside
the ambit of Sec. 10, Art. X of the Constitution, considering that the
conversion of a component city to an HUC is not "creation, division,
merge, abolition or substantial alternation of boundaries" encompassed
by the said constitutional provision.
This proposition is bereft of merit.
First, the Courts pronouncement in Miranda vs. Aguirre is apropos and
may be applied by analogy. While Miranda involves the downgrading,
instead of upgrading, as here, of an independent component city into a
component city, its application to the case at bar is nonetheless material
in ascertaining the proper treatment of conversions. In that seminal case,
the Court held that the downgrading of an independent component city
into a component city comes within the purview of Sec. 10, Art. X of the
Constitution.
11

In Miranda, the rationale behind the afore-quoted constitutional provision

and its application to cases of conversion were discussed thusly:
A close analysis of the said constitutional provision will reveal that the
creation, division, merger, abolition or substantial alteration of boundaries
of local government units involve a common denominator - - - material
change in the political and economic rights of the local government units
directly affected as well as the people therein. It is precisely for this
reason that the Constitution requires the approval of the people "in the
political units directly affected." It is not difficult to appreciate the rationale
of this constitutional requirement. The 1987 Constitution, more than any
of our previous Constitutions, gave more reality to the sovereignty of our
people for it was borne out of the people power in the 1986 EDSA
revolution. Its Section 10, Article X addressed the undesirable practice in
the past whereby local government units were created, abolished,
merged or divided on the basis of the vagaries of politics and not of the
welfare of the people. Thus, the consent of the people of the local
government unit directly affected was required to serve as a checking
mechanism to any exercise of legislative power creating, dividing,
abolishing, merging or altering the boundaries of local government units.
It is one instance where the people in their sovereign capacity decide on

a matter that affects them - - - direct democracy of the people as opposed

to democracy thru peoples representatives. This plebiscite requirement
is also in accord with the philosophy of the Constitution granting more
autonomy to local government units.
12

It was determined in the case that the changes that will result from the
conversion are too substantial that there is a necessity for the plurality of
those that will be affected to approve it. Similar to the enumerated acts in
the constitutional provision, conversions were found to result in material
changes in the economic and political rights of the people and LGUs
affected. Given the far-reaching ramifications of converting the status of a
city, we held that the plebiscite requirement under the constitutional
provision should equally apply to conversions as well. Thus, RA
8528 was declared unconstitutional in Miranda on the ground that the
law downgraded Santiago City in Isabela without submitting it for
ratification in a plebiscite, in contravention of Sec. 10, Art. X of the
Constitution.

Verily, the upward conversion of a component city, in this case

Cabanatuan City, into an HUC will come at a steep price. It can be
gleaned from the above-cited rule that the province will inevitably suffer a
corresponding decrease in territory brought about by Cabanatuan Citys
gain of independence. With the citys newfound autonomy, it will be free
from the oversight powers of the province, which, in effect, reduces the
territorial jurisdiction of the latter. What once formed part of Nueva Ecija
will no longer be subject to supervision by the province. In more concrete
terms, Nueva Ecija stands to lose 282.75 sq. km. of its territorial
jurisdiction with Cabanatuan Citys severance from its mother province.
This is equivalent to carving out almost 5% of Nueva Ecijas 5,751.3 sq.
km. area. This sufficiently satisfies the requirement that the alteration be
"substantial."

13

Second, while conversion to an HUC is not explicitly provided in Sec. 10,

Art. X of the Constitution we nevertheless observe that the conversion of
a component city into an HUC is substantial alteration of boundaries.
As the phrase implies, "substantial alteration of boundaries" involves and
necessarily entails a change in the geographical configuration of a local
government unit or units. However, the phrase "boundaries" should not
be limited to the mere physical one, referring to the metes and bounds of
the LGU, but also to its political boundaries. It also connotes a
modification of the demarcation lines between political subdivisions,
where the LGUs exercise of corporate power ends and that of the other
begins. And as a qualifier, the alteration must be "substantial" for it to be
within the ambit of the constitutional provision.
Pertinent is Art. 12(c) of the LGCs Implementing Rules and Regulations,
which reads:
Art. 12. Conversion of a Component City into a Highly Urbanized City.
xxxx
(c) Effect of Conversion The conversion of a component city into a
highly-urbanized city shall make it independent of the province where it is
geographically located. (emphasis added)

Needless to stress, the alteration of boundaries would necessarily follow

Cabanatuan Citys conversion in the same way that creations, divisions,
mergers, and abolitions generally cannot take place without entailing the
alteration. The enumerated acts, after all, are not mutually exclusive, and
more often than not, a combination of these acts attends the
reconfiguration of LGUs.
In light of the foregoing disquisitions, the Court rules that conversion to
an HUC is substantial alternation of boundaries governed by Sec. 10, Art.
X and resultantly, said provision applies, governs and prevails over Sec.
453 of the LGC.
Moreover, the rules of statutory construction dictate that a particular
provision should be interpreted with the other relevant provisions in the
law The Court finds that it is actually Sec. 10 of the LGC which is
undeniably the applicable provision on the conduct of plebiscites. The title
of the provision itself, "Plebiscite Requirement", makes this obvious. It
requires a majority of the votes cast in a plebiscite called for the purpose
in the political unit or units directly affected. On the other hand, Sec. 453
of the LGC, entitled "Duty to Declare Highly Urbanized Status", is only on
the duty to declare a city as highly urbanized. It mandates the Office of
the President to make the declaration after the city has met the
requirements under Sec. 452, and upon proper application and
ratification in a plebiscite. The conduct of a plebiscite is then a
requirement before a declaration can be made. Thus, the Court finds that
Sec. 10 of the LGC prevails over Sec. 453 of the LGC on the plebiscite
requirement.
We now take the bull by the horns and resolve the issue whether Sec.
453 of the LGC trenches on Sec. 10, Art. X of the Constitution.

Hornbook doctrine is that neither the legislative, the executive, nor the
judiciary has the power to act beyond the Constitutions mandate. The
Constitution is supreme; any exercise of power beyond what is
circumscribed by the Constitution is ultra vires and a nullity. As elucidated
by former Chief Justice Enrique Fernando in Fernandez v. Cuerva:
14

Where the assailed legislative or executive act is found by the judiciary to

be contrary to the Constitution, it is null and void. As the new Civil Code
puts it: "When the courts declare a law to be inconsistent with the
Constitution, the former shall be void and the latter shall govern."
Administrative or executive acts, orders and regulations shall be valid
only when they are not contrary to the laws or the Constitution. The
above provision of the civil Code reflects the orthodox view that an
unconstitutional act, whether legislative or executive, is not a law, confers
no rights, imposes no duties, and affords no protection. x x x
Applying this orthodox view, a law should be construed in harmony with
and not in violation of the Constitution. In a long line of cases, the
cardinal principle of construction established is that a statute should be
interpreted to assure its being in consonance with, rather than repugnant
to, any constitutional command or prescription. If there is doubt or
uncertainty as to the meaning of the legislative, if the words or provisions
are obscure or if the enactment is fairly susceptible of two or more
constitution, that interpretation which will avoid the effect of
unconstitutionality will be adopted, even though it may be necessary, for
this purpose, to disregard the more usual or apparent import of the
language used.

10, Art. X of the Constitution which explicitly requires that all residents in
the "political units directly affected" should be made to vote.
Respondents make much of the plebiscites conducted in connection with
the conversion of Puerto Princesa City, Tacloban City and Lapu-Lapu City
where the ratification was made by the registered voters in said cities
alone. It is clear, however, that the issue of who are entitled to vote in
said plebiscites was not properly raised or brought up in an actual
controversy. The issue on who will vote in a plebiscite involving a
conversion into an HUC is a novel issue, and this is the first time that the
Court is asked to resolve the question. As such, the past plebiscites in
the aforementioned cities have no materiality or relevance to the instant
petition. Suffice it to say that conversion of said cities prior to this judicial
declaration will not be affected or prejudiced in any manner following the
operative fact doctrinethat the actual existence of a statute prior to
such a determination is an operative fact and may have consequences
which cannot always be erased by a new judicial declaration.
18

15

The entire province of Nueva Ecija will be directly

affected by Cabanatuan Citys conversion

16

17

Pursuant to established jurisprudence, the phrase "by the qualified voters

therein" in Sec. 453 should be construed in a manner that will avoid
conflict with the Constitution. If one takes the plain meaning of the phrase
in relation to the declaration by the President that a city is an HUC, then,
Sec. 453 of the LGC will clash with the explicit provision under Sec. 10,
Art. X that the voters in the "political units directly affected" shall
participate in the plebiscite. Such construction should be avoided in view
of the supremacy of the Constitution. Thus, the Court treats the phrase
"by the qualified voters therein" in Sec. 453 to mean the qualified voters
not only in the city proposed to be converted to an HUC but also the
voters of the political units directly affected by such conversion in order to
harmonize Sec. 453 with Sec. 10, Art. X of the Constitution.
The Court finds that respondents are mistaken in construing Sec. 453 in
a vacuum. Their interpretation of Sec. 453 of the LGC runs afoul of Sec.

After the Court has resolved the seeming irreconcilability of Sec. 10, Art.
X of the Constitution and Sec. 453 of the LGC, it is now time to elucidate
the meaning of the phrase "political units directly affected" under Sec. 10,
Art. X.
a. "Political units directly affected" defined
In identifying the LGU or LGUs that should be allowed to take part in the
plebiscite, what should primarily be determined is whether or not the unit
or units that desire to participate will be "directly affected" by the change.
To interpret the phrase, Tan v. COMELEC and Padilla v. COMELEC are
worth revisiting.
19

20

We have ruled in Tan, involving the division of Negros Occidental for the
creation of the new province of Negros del Norte, that the LGUs whose
boundaries are to be altered and whose economy would be affected are
entitled to participate in the plebiscite. As held:
It can be plainly seen that the aforecited constitutional provision makes it
imperative that there be first obtained "the approval of a majority of votes
in the plebiscite in the unit or units affected" whenever a province is
created, divided or merged and there is substantial alteration of the

boundaries. It is thus inescapable to conclude that the boundaries of the

existing province of Negros Occidental would necessarily be substantially
altered by the division of its existing boundaries in order that there can be
created the proposed new province of Negros del Norte. Plain and simple
logic will demonstrate than that two political units would be affected.
The first would be the parent province of Negros Occidental because its
boundaries would be substantially altered. The other affected entity would
be composed of those in the area subtracted from the mother province to
constitute the proposed province of Negros del Norte.

Mr. Maambong: While we have already approved the deletion of "unit or,"
I would like to inform the Committee that under the formulation in the
present Local Government Code, the words used are actually "political
unit or units." However, I do not know the implication of the use of these
words. Maybe there will be no substantial difference, but I just want to
inform the Committee about this.
Mr. Nolledo: Can we not adhere to the original "unit or units"? Will there
be no objection on the part of the two Gentlemen from the floor?

21

xxxx
To form the new province of Negros del Norte no less than three cities
and eight municipalities will be subtracted from the parent province of
Negros 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 of the division of the parent
province necessarily will affect all the people living in the separate areas
of Negros Occidental and the proposed province of Negros del Norte.
The economy of the parent province as well as that of the new province
will be inevitably affected, either for the better or for the worse. Whatever
be the case, either or both of these political groups will be affected and
they are, therefore, the unit or units referred to in Section 3 of Article XI of
the Constitution which must be included in the plebiscite contemplated
therein. (emphasis added)
22

Sec. 3, Art. XI of the 1973 Constitution, as invoked in Tan, states:

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. (emphasis added)
Despite the change in phraseology compared to what is now Sec. 10, Art.
X, we affirmed our ruling in Tan in the latter case of Padilla. As held, the
removal of the phrase "unit or" only served to sustain the earlier finding
that what is contemplated by the phase "political units directly affected" is
the plurality of political units which would participate in the plebiscite. As
reflected in the journal of the Constitutional Commission:
23

Mr. Davide: I would object. I precisely asked for the deletion of the words
"unit or" because in the plebiscite to be conducted, it must involve all the
units affected. If it is the creation of a barangay plebiscite because it is
affected. It would mean a loss of a territory. (emphasis added)
The same sentiment was shared by the Senate during its deliberations
on Senate Bill No. 155the predecessor of the LGCthus:
Senator Guingona. Can we make that clearer by example? Let us
assume that a province has municipalities and there is a merger of two
municipalities. Would this therefore mean that the plebiscite will be
conducted within the two merged municipalities and not in the eight other
municipalities?
Senator Pimentel. The whole province, Mr. President, will be affected,
and that is the reason we probably have to involve the entire province.
Senator Guingona. So the plebiscite will not be held only in the two
municipalities which are being merged, but the entire province will now
have to undergo.
Senator Pimentel. I suppose that was the ruling in the Negros del Norte
case.
Senator Guingona. Supposing it refers to barangays, will the entire
municipality have to vote? There are two barangays being merged, say,
out of 100 barangays. Would the entire municipality have to participate in
the plebiscite?
Senator Pimentel. Yes, Mr. President, because the municipality is
affected directly by the merger of two of its barangay.

Senator Guingona. And, if, out of 100 barangay, 51 are being merged,
abolished, whatever, would the rest of the municipality not participate in
the plebiscite?
Senator Pimentel. Do all the 51 barangay that the Gentleman mentioned,
Mr. President, belong to one municipality?
Senator Guingona. Yes.

Often raised is that Cabanatuan Citys conversion into an HUC and its
severance from Nueva Ecija will result in the reduction of the Internal
Revenue Allotment (IRA) to the province based on Sec. 285 of the LGC.
The law states:
Section 285. Allocation to Local Government Units. - The share of local
government units in the internal revenue allotment shall be collected in
the following manner:
(a) Provinces - Twenty-three percent (23%);

Senator Pimentel. Then it will only involve the municipality where the 51
barangays belong.

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

Senator Guingona. Yes. So, the entire municipality will now have to
undergo a plebiscite.

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

Senator Pimentel. That is correct, Mr. President.

(d) Barangays - Twenty percent (20%)

Senator Guingona. In the earlier example, if it is only a merger of two

municipalities, let us say, in a province with 10 municipalities the entire
province will the other municipalities although not affected also have to
participate in the plebiscite?

Provided, however, That the share of each province, city, and municipality
shall be determined on the basis of the following formula:
(a) Population - Fifty percent (50%);

Senator Pimentel. Yes. The reason is that the municipalities are within the
territorial boundaries of the province itself, it will have to be altered as a
result of the two municipalities that the Gentleman mentioned.

(b) Land Area - Twenty-five percent (25%); and

24

In the more recent case of Miranda, the interpretation in Tan and Padilla
was modified to include not only changes in economic but also political
rights in the criteria for determining whether or not an LGU shall be
considered "directly affected." Nevertheless, the requirement that the
plebiscite be participated in by the plurality of political units directly
affected remained.
b. Impact on Economic Rights

(c) Equal sharing - Twenty-five percent (25%)

In our earlier disquisitions, we have explained that the conversion into an
HUC carries the accessory of substantial alteration of boundaries and
that the province of Nueva Ecija will, without a doubt, suffer a reduction in
territory because of the severance of Cabanatuan City. The residents of
the city will cease to be political constituencies of the province, effectively
reducing the latters population. Taking this decrease in territory and
population in connection with the above formula, it is conceded that
Nueva Ecija will indeed suffer a reduction in IRA given the decrease of its
multipliers values. As assessed by the Regional Director of the
Department of Budget and Management (DBM) for Region III:

To recall, it was held in Miranda that the changes that will result in the
downgrading of an LGU from an independent component city to a
component city cannot be categorized as insubstantial, thereby
Basis for IRA
necessitating the conduct of a plebiscite for its ratification. In a similar
Computation
fashion, herein petitioner Umali itemized the adverse effects of
Cabanatuan Citys conversion to the province of Nueva Ecija to justify the
provinces participation in the plebiscite to be conducted.

25

Province of
Nueva Ecija

Cabanatuan
City

Province of
Nueva Ecija Net
of Cabanatuan
City

because it is in no way deprived of its right to collect the mentioned taxes

from the rest of its territory, the conversion will still reduce the provinces
taxing jurisdiction, and corollary to this, it will experience a corresponding
decrease in shares in local tax collections. This reduction in both taxing
jurisdiction and shares poses a material and substantial change to the
provinces economic rights, warranting its participation in the plebiscite.

1,843,853

259,267

259,267

Land Area
(sq. km.)

5,751.33

282.75

5,468.58

IRA Share of
Nueva Ecija

Actual IRA
Share

Estimated IRA
share excluding
Cabanatuan
City

Reduction

Based on
Population

P800,772,618.45

P688,174,751.66

P112,597,866.79

Based on Land
Area

P263,470,472.62

P250,517,594.56

P 12,952,878.06

No. of Population
CY 2007 Census

Section 452. Highly Urbanized Cities.

tal

P125,550,744.85
Clear as crystal is that the province of Nueva Ecija will suffer a
substantial reduction of its share in IRA once Cabanatuan City attains
autonomy. In view of the economic impact of Cabanatuan Citys
conversion, petitioner Umalis contention, that its effect on the province is
not only direct but also adverse, deserves merit.
Moreover, his claim that the province will lose shares in provincial taxes
imposed in Cabanatuan City is well-founded. This is based on Sec. 151
of the LGC, which states:
SECTION 151. Scope of Taxing Powers. Except as otherwise provided
in this Code, the city, may levy the taxes, fees, and charges which the
province or municipality may impose: Provided, however, That the taxes,
fees and charges levied and collected by highly urbanized and
independent component cities shall accrue to them and distributed in
accordance with the provisions of this Code. (emphasis added)
Once converted, the taxes imposed by the HUC will accrue to itself. Prior
to this, the province enjoys the prerogative to impose and collect taxes
such as those on sand, gravel and other quarry resources, professional
taxes, and amusement taxes over the component city. While, it may be
argued that this is not a derogation of the provinces taxing power
26

27

28

To further exemplify the impact of these changes, a perusal of Secs.

452(a) and 461(a) of the LGC is in order, viz:

(a) Cities with a minimum population of two hundred thousand

(200,000) inhabitants as certified by the National Statistics Office,
and within the latest annual income of at least Fifty Million Pesos
(P50,000,000.00) based on 1991 constant prices, as certified by
the city treasurer, shall be classified as highly urbanized cities.

Section 461. Requisites for Creation.

(a) A province may be created if it has an average annual income, as
certified by the Department of Finance, of not less than Twenty million
pesos (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.
A component citys conversion into an HUC and its resultant autonomy
from the province is a threat to the latters economic viability. Noteworthy
is that the income criterion for a component city to be converted into an
HUC is higher than the income requirement for the creation of a province.
The ensuing reduction in income upon separation would clearly leave a
crippling effect on the provinces operations as there would be less
funding to finance infrastructure projects and to defray overhead costs.
Moreover, the quality of services being offered by the province may suffer

because of looming austerity measures. These are but a few of the social
costs of the decline in the provinces economic performance, which
Nueva Ecija is bound to experience once its most progressive city of
Cabanatuan attains independence.
c. Impact on Political Rights
Aside from the alteration of economic rights, the political rights of Nueva
Ecija and those of its residents will also be affected by Cabanatuans
conversion into an HUC. Notably, the administrative supervision of the
province over the city will effectively be revoked upon conversion. Secs. 4
and 12, Art. X of the Constitution read:
Sec. 4. The President of the Philippines shall exercise general
supervision over local governments. Provinces with respect to
component cities and municipalities, and cities and municipalities with
respect to component barangays shall ensure that the acts of their
component units are within the scope of their prescribed powers and
functions.
Sec 12. Cities that are highly urbanized, as determined by law, and
component cities whose charters prohibit their voters from voting for
provincial elective officials, shall be independent of the province. The
voters of component cities within a province, whose charters contain no
such prohibition, shall not be deprived of their right to vote for elective
provincial officials.
Duties, privileges and obligations appertaining to HUCs will attach to
Cabanatuan City if it is converted into an HUC. This includes the right to
be outside the general supervision of the province and be under the
direct supervision of the President. An HUC is not subject to provincial
oversight because the complex and varied problems in an HUC due to a
bigger population and greater economic activity require greater
autonomy. The provincial government stands to lose the power to
ensure that the local government officials of Cabanatuan City act within
the scope of its prescribed powers and functions, to review executive
orders issued by the city mayor, and to approve resolutions and
ordinances enacted by the city council. The province will also be
divested of jurisdiction over disciplinary cases concerning the elected city
officials of the new HUC, and the appeal process for administrative case
decisions against barangay officials of the city will also be modified
accordingly. Likewise, the registered voters of the city will no longer be
entitled to vote for and be voted upon as provincial officials.
29

30

31

32

33

In cutting the umbilical cord between Cabanatuan City and the province
of Nueva Ecija, the city will be separated from the territorial jurisdiction of
the province, as earlier explained. The provincial government will no
longer be responsible for delivering basic services for the city residents
benefit. Ordinances and resolutions passed by the provincial council will
no longer cover the city. Projects queued by the provincial government to
be executed in the city will also be suspended if not scrapped to prevent
the LGU from performing functions outside the bounds of its territorial
jurisdiction, and from expending its limited resources for ventures that do
not cater to its constituents.
1wphi1

In view of these changes in the economic and political rights of the

province of Nueva Ecija and its residents, the entire province certainly
stands to be directly affected by the conversion of Cabanatuan City into
an HUC. Following the doctrines in Tan and Padilla, all the qualified
registered voters of Nueva Ecija should then be allowed to participate in
the plebiscite called for that purpose.
Respondents apprehension that requiring the entire province to
participate in the plebiscite will set a dangerous precedent leading to the
failure of cities to convert is unfounded. Their fear that provinces will
always be expected to oppose the conversion in order to retain the citys
dependence is speculative at best. In any event, any vote of disapproval
cast by those directly affected by the conversion is a valid exercise of
their right to suffrage, and our democratic processes are designed to
uphold the decision of the majority, regardless of the motive behind the
vote. It is unfathomable how the province can be deprived of the
opportunity to exercise the right of suffrage in a matter that is potentially
deleterious to its economic viability and could diminish the rights of its
constituents. To limit the plebiscite to only the voters of the areas to be
partitioned and seceded from the province is as absurd and illogical as
allowing only the secessionists to vote for the secession that they
demanded against the wishes of the majority and to nullify the basic
principle of majority rule.
34

WHEREFORE, premises considered, the Petition for Certiorari, docketed

as G.R. No. 203974, is hereby GRANTED. COMELEC Minute Resolution
No. 12-0797 dated September 11, 2012 and Minute Resolution No. 120925 dated October 16, 2012 are hereby declared NULL and VOID.
Public respondent COMELEC is hereby enjoined from implementing the
said Resolutions. Additionally, COMELEC is hereby ordered to conduct a
plebiscite for the purpose of converting Cabanatuan City into a Highly
Urbanized City to be participated in by the qualified registered voters of
Nueva Ecij a within 120 days from the finality of this Decision. The

Petition for Mandamus, docketed as G.R. No. 204371, is hereby

DISMISSED.
SO ORDERED.