representing the Province of Dinagat Islands.

The dispositive
RODOLFO G. NAVARRO, VICTOR
BERNAL, and RENE O. MEDINA,
Petitioners,
-

F.

versus

EXECUTIVE
SECRETARY
EDUARDO
ERMITA, representing the President of
the
Philippines;
SENATE
OF
THE
PHILIPPINES,
represented
by
the
SENATE
PRESIDENT;
HOUSE
OF
REPRESENTATIVES, represented by the
HOUSE SPEAKER; GOVERNOR ROBERT
ACE S. BARBERS, representing the
Mother Province of Surigao del Norte;
GOVERNOR
GERALDINE
ECLEO
VILLAROMAN, representing the new
Province of Dinagat Islands,
Respondents.

G.R. No. 180050

Present:

portion of the Decision reads:

PUNO, C.J.,
WHEREFORE, the petition is GRANTED. Republic
CARPIO,
Act No. 9355, otherwise known as An Act Creating the
CORONA,
Province of Dinagat Islands, is hereby declared
CARPIO MORALES,
unconstitutional. The proclamation of the Province of
VELASCO, JR.,
Dinagat Islands and the election of the officials thereof are
NACHURA,
declared NULL and VOID. The provision in Article 9 (2) of
LEONARDO-DE CASTRO,
the Rules and Regulations Implementing the Local
BRION,
Government Code of 1991 stating, The land area
requirement shall not apply where the proposed province is
PERALTA,
composed of one (1) or more islands, is declared NULL and
BERSAMIN,
VOID.
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
The arguments of the movants are similar. The grounds for
PEREZ, and
MENDOZA, JJ.
reconsideration of Governor Villaroman can be subsumed under the
Promulgated:

grounds for reconsideration of the OSG, which are as follows:

May 12, 2010

I.
The Province of Dinagat Islands was created in
accordance with the provisions of the 1987 Constitution
and the Local Government Code of 1991. Article 9 of the
Implementing
Rules
and
Regulations
is
merely
interpretative of Section 461 of the Local Government
Code.

x----------------------------------------------------------------------------------------x
RESOLUTION
PERALTA, J.:
Before us are two Motions for Reconsideration of the
Decision dated February 10, 2010 one filed by the Office of the
Solicitor General (OSG) in behalf of public respondents, and the
other filed by respondent Governor Geraldine Ecleo Villaroman,

II.
The power to create a local government unit is
vested with the Legislature. The acts of the Legislature and
Executive in enacting into law RA 9355 should be
respected as petitioners failed to overcome the
presumption of validity or constitutionality.
III.
Recent and prevailing jurisprudence considers the
operative fact doctrine as a reason for upholding the
validity and constitutionality of laws involving the creation
of a new local government unit as in the instant case.

As regards the first ground, the movants reiterate the same

arguments in their respective Comments that aside from the

undisputed compliance with the income requirement, Republic Act

Less than a year after the proclamation of the new province,

(R.A.) No. 9355, creating the Province of Dinagat Islands, has also

the NSO conducted the 2007 Census of Population. The NSO

complied with the population and land area requirements.

certified that as of August 1, 2007, Dinagat Islands had a total

population of only 120,813,3[3] which was still below the minimum
requirement of 250,000 inhabitants.

The arguments are unmeritorious and have already been

Based on the foregoing, R.A. No. 9355 failed to comply with

passed upon by the Court in its Decision, ruling that R.A. No. 9355

the population requirement of 250,000 inhabitants as certified by

is unconstitutional, since it failed to comply with either the

the NSO.

territorial or population requirement contained in Section 461 of

Moreover, the land area of the province failed to comply

R.A. No. 7160, otherwise known as the Local Government Code of

with the statutory requirement of 2,000 square kilometers. R.A. No.

1991.

9355 specifically states that the Province of Dinagat Islands

When the Dinagat Islands was proclaimed a new province on

contains an approximate land area of 802.12 square kilometers.

December 3, 2006, it had an official population of only 106,951

This was not disputed by the respondent Governor of the Province

based on the 2000 Census of Population conducted by the National

of Dinagat Islands in her Comment. She and the other respondents

Statistics Office (NSO), which population is short of the statutory

instead asserted that the province, which is composed of more

requirement of 250,000 inhabitants.

than one island, is exempted from the land area requirement based
on the provision in the Rules and Regulations Implementing the

Although the Provincial Government of Surigao del Norte

Local Government Code of 1991 (IRR), specifically paragraph 2 of

conducted a special census of population in Dinagat Islands in

Article 9 which states that [t]he land area requirement shall not

2003, which yielded a population count of 371,000, the result was

apply where the proposed province is composed of one (1) or more

not certified by the NSO as required by the Local Government

islands. The certificate of compliance issued by the Lands

Code.1[1] Moreover, respondents failed to prove that with the

Management Bureau was also based on the exemption under

population count of 371,000, the population of the original unit

paragraph 2, Article 9 of the IRR.

(mother Province of Surigao del Norte) would not be reduced to

However, the Court held that paragraph 2 of Article 9 of the
less than the minimum requirement prescribed by law at the time
of the creation of the new province.2[2]

IRR is null and void, because the exemption is not found in Section

2
3

461 of the Local Government Code. 4[4] There is no dispute that in

regulations implementing the said law, the basic law prevails,

(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

because the rules and regulations cannot go beyond the terms and

not reduce the land area, population, and income

case of discrepancy between the basic law and the rules and

of the original unit or units at the time of said

provisions of the basic law. [5]

creation to less than the minimum requirements

prescribed herein.
(b) The territory need not be
contiguous if it comprises two (2) or more
islands or is separated by a chartered city or
cities which do not contribute to the income
of the province.
(c) The average annual income shall
include the income accruing to the general fund,
exclusive of special funds, trust funds, transfers,
and non-recurring income.6[6]

The movants now argue that the correct interpretation of

Section 461 of the Local Government Code is the one stated in the
Dissenting Opinion of

Associate

Justice

Antonio Eduardo

B.

Nachura.
In his Dissenting Opinion, Justice Nachura agrees that R.A.
No. 9355 failed to comply with the population requirement.
However, he contends that the Province of Dinagat Islands did not

Justice Nachura contends that the stipulation in paragraph

fail to comply with the territorial requirement because it is

(b) qualifies not merely the word contiguous in paragraph (a) (i) in

composed of a group of islands; hence, it is exempt from

the same provision, but rather the entirety of paragraph (a) (i) that

compliance not only with the territorial contiguity requirement, but

reads:

also with the 2,000-square-kilometer land area criterion in Section

(i)
a contiguous territory of at least two
thousand (2,000) square kilometers, as certified by the
Lands Management Bureau[.]7[7]

461 of the Local Government Code, which is reproduced for easy

reference:
SEC. 461. Requisites for Creation. -- (a) A province
may be created if it has an average annual income, as
certified by the Department of Finance, of not less than
Twenty million pesos (P20,000,000.00) based on 1991
constant prices and either of the following requisites:
(i) a contiguous territory of at least two
thousand (2,000) square kilometers, as
certified by the Lands Management Bureau; or

He argues that the whole paragraph on contiguity and land

area in paragraph (a) (i) above is the one being referred to in the
exemption from the territorial requirement in paragraph (b). Thus,
he contends that if the province to be created is composed of
islands, like the one in this case, then, its territory need not be
contiguous and need not have an area of at least 2,000 square
kilometers. He asserts that this is because as the law is worded,
contiguity and land area are not two distinct and separate

requirements, but they qualify each other. An exemption from one

of the two component requirements in paragraph (a) (i) allegedly

(b) Population. It shall be determined as the

total number of inhabitants within the territorial
jurisdiction of the local government unit concerned; and
(c)
Land area. It must be contiguous,
unless it comprises two (2) or more islands, or is
separated by a local government unit independent of the
others; properly identified by metes and bounds with
technical descriptions; and sufficient to provide for
such basic services and facilities to meet the
requirements of its populace.

necessitates an exemption from the other component requirement,

because the non-attendance of one results in the absence of a
reason

for

the

other

component

requirement

to

effect

qualification.
Similarly, the OSG contends that when paragraph (b) of
Section 461 of the Local Government Code provides that the

Compliance with the foregoing indicators shall

be attested to by the Department of Finance (DOF), the
National Statistics Office (NSO), and the Lands
Management Bureau (LMB) of the Department of
Environment and Natural Resources (DENR).8[8]

territory need not be contiguous if it comprises two (2) or more

islands, it necessarily dispenses the 2,000-sq.-km. land area
requirement, lest such exemption would not make sense. The OSG
argues that in stating that a territory need not be contiguous if it
comprises two (2) or more islands, the law could not have meant to

It must be emphasized that Section 7 above, which provides

define the obvious. The land mass of two or more islands will never

for the general rule in the creation of a local government unit,

be contiguous as it is covered by bodies of water. It is then but

states in paragraph (c) thereof that the land area must be

logical that the territory of a proposed province that is composed of

contiguous and sufficient to provide for such basic services and

one or more islands need not be contiguous or be at least 2,000 sq.

facilities to meet the requirements of its populace.

kms.
The Court is not persuaded.

Therefore, there are two requirements for land area: (1) the
land area must be contiguous; and (2) the land area must be

Section 7, Chapter 2 (entitled General Powers and

sufficient to provide for such basic services and facilities to meet

Attributes of Local Government Units) of the Local Government

the requirements of its populace. A sufficient land area in the

Code provides:

creation of a province is at least 2,000 square kilometers, as

SEC. 7. Creation and Conversion. As a general

rule, the creation of a local government unit or its
conversion from one level to another level shall be
based on verifiable indicators of viability and
projected capacity to provide services, to wit:
(a) Income. It must be sufficient, based on
acceptable standards, to provide for all essential
government facilities and services and special functions
commensurate with the size of its population, as
expected of the local government unit concerned;

provided by Section 461 of the Local Government Code .

Thus, Section 461 of the Local Government Code, providing
the requisites for the creation of a province, specifically states the
requirement

of

contiguous

territory

thousand (2,000) square kilometers.

of

at

least

two

square kilometers or the requirement in paragraph (a) (i) of

Hence, contrary to the arguments of both movants, the

Section 461of the Local Government Code.

requirement of a contiguous territory and the requirement of a

land area of at least 2,000 square kilometers are distinct and
separate requirements for land

Where the law is free from ambiguity, the court may not
introduce exceptions or conditions where none is provided from
considerations of convenience, public welfare, or for any laudable

area under paragraph (a) (i) of Section 461 and Section 7 (c) of

purpose;10[10] neither may it engraft into the law qualifications not

the Local Government Code.

contemplated,11[11] nor construe its provisions by taking into

account questions of expediency, good faith, practical utility and

However, paragraph (b) of Section 461 provides two

instances

of

exemption

from

the

requirement

of

territorial

contiguity, thus:

(b) The territory need not be contiguous if it

comprises two (2) or more islands, or is separated
by a chartered city or cities which do not contribute
to the income of the province.9[9]

other similar reasons so as to relax non-compliance therewith.12[12]

Where the law speaks in clear and categorical language, there is no
room for interpretation, but only for application.13[13]
Moreover, the OSG contends that since the power to create
a local government unit is vested with the Legislature, the acts of
the Legislature and the Executive branch in enacting into law R.A.
No. 9355 should be respected as petitioners failed to overcome the

Contrary to the contention of the movants, the exemption

presumption of validity or constitutionality.

above pertains only to the requirement of territorial contiguity. It

clearly states that the requirement of territorial contiguity may be

The contention lacks merit.

dispensed with in the case of a province comprising two or more

islands, or is separated by a chartered city or cities which do not

Section 10, Article X of the Constitution states:

contribute to the income of the province.

Nowhere in paragraph (b) is it expressly stated or

10

may it be implied that when a province is composed of two

or more islands, or when the territory of a province is

11

separated by a chartered city or cities, such province need

not comply with the land area requirement of at least 2,000

12

13

SEC. 10. No province, city, municipality, or

barangay may be created, divided, merged, abolished, or
its boundary substantially altered, except in accordance
with the criteria established in the local government
code and subject to approval by a majority of the votes
cast in a plebiscite in the political units directly affected. 14
[14]

be necessary to effectuate the specific purpose of the law.

It is equally well-established, however, that the
courts, as guardians of the Constitution, have the inherent
authority to determine whether a statute enacted by the
legislature transcends the limit imposed by the
fundamental law. And where the acts of the other branches
of government run afoul of the Constitution, it is the
judiciarys solemn and sacred duty to nullify the same.

As the law-making branch of the government, indeed, it was

the Legislature that imposed the criteria for the creation of a
province as contained in Section 461 of the Local Government
Code. No law has yet been passed amending Section 461 of the

Citing League of Cities of the Philippines v. Commission on

Elections,16[16] the movants further contend that under the
operative fact doctrine, the constitutionality of R.A No. 9355,
creating the Province of Dinagat Islands, should be upheld.

Local Government Code, so only the criteria stated therein are the

The Court is not persuaded.

bases for the creation of a province. The Constitution clearly

mandates that the criteria in the Local Government Code must be

In League of Cities of the Philippines v. Commission on

followed in the creation of a province; hence, any derogation of or

deviation from the criteria prescribed in the Local Government
Code violates Section 10, Article X of the Constitution.

Elections, the Court held that the 16 cityhood laws, whose validity
were questioned therein, were constitutional mainly because it
found that the said cityhood laws merely carried out the intent of

Contrary to the contention of the movants, the evidence on

record proved that R.A. No. 9355 failed to comply with either the
population or territorial requirement prescribed in Section 461 of
the Local Government Code for the creation of the Province of
Dinagat

Islands;

hence,

the

Court

declared

R.A.

No.

9355

unconstitutional.

R.A. No. 9009, now Section 450 of the Local Government Code, to
exempt therein respondents local government units (LGUs) from
the P100 million income requirement, since the said LGUs had
pending cityhood bills long before the enactment of R.A. No. 9009.
Each one of the 16 cityhood laws contained a provision exempting
the

covered

from

the

P100

million

income

requirement.

In Farias v. The Executive Secretary,15[15] the Court held:

Every statute is presumed valid. The presumption
is that the legislature intended to enact a valid, sensible
and just law and one which operates no further than may

municipality

In this case, R.A. No. 9355 was declared unconstitutional

because there was utter failure to comply with either the
population or territorial requirement for the creation of a province

14

under Section 461 of the Local Government Code.

15

16

The Court, while respecting the doctrine of separation of

powers, cannot renege on its duty to determine whether the other
branches of the government have kept themselves within the limits
of the Constitution, and determine whether illegality attached to

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.

the creation of the province in question. To abandon this duty only

because the Province of Dinagat Islands has began its existence is
to consent to the passage of a law that is violative of the provisions
of the Constitution and the Local Government Code, rendering the
law and the province created null and void. The Court cannot
tolerate such nullity to be in existence. Where the acts of other
branches of the government go beyond the limit imposed by the
Constitution, it is the sacred duty of the judiciary to nullify the
same.17[17]
Tan v. Comelec18[18] held:
x x x [T]he fact that such plebiscite had been held and a
new province proclaimed and its officials appointed, the
case before Us cannot truly be viewed as already moot and
academic. Continuation of the existence of this newly
proclaimed province, which petitioners strongly profess to
have been illegally born, deserves to be inquired into by
this Tribunal so that, if indeed, illegality attaches to its
creation, the commission of that error should not provide
the very excuse for perpetuation of such wrong. For this
court to yield to the respondents urging that, as there has
been fait accompli then this Court should passively accept
and accede to the prevailing situation, is an unacceptable
suggestion. Dismissal of the instant petition, as
respondents so propose, is a proposition fraught with
mischief. Respondents submission will create a dangerous
precedent. Should this Court decline now to perform its
duty of interpreting and indicating what the law is and
should be, this might tempt again those who strut about in
the corridors of power to recklessly and with ulterior

17
18

WHEREFORE, in view of the foregoing, the Motions for

Reconsideration of the Decision dated February 10, 2010 are
hereby DENIED for lack of merit.
SO ORDERED.