LEAGUE OF CITIES OF THE G.R. No.

176951
PHILIPPINES (LCP), represented by LCP
National President Jerry P. Treas; CITY
OF CALBAYOG, represented by Mayor
Mel Senen S. Sarmiento; and JERRY P.
TREAS, in his personal capacity as
Taxpayer,
Petitioners,

- versus -

COMMISSION ON
ELECTIONS; MUNICIPALITY OF
BAYBAY, PROVINCE OF LEYTE;
MUNICIPALITY OF BOGO, PROVINCE
OF CEBU; MUNICIPALITY OF
CATBALOGAN, PROVINCE OF
WESTERN SAMAR; MUNICIPALITY OF
TANDAG, PROVINCE OF SURIGAO
DEL SUR; MUNICIPALITY OF
BORONGAN, PROVINCE OF EASTERN
SAMAR; AND MUNICIPALITY OF
TAYABAS, PROVINCE OF QUEZON,
Respondents.
x----------------------x
LEAGUE OF CITIES OF THE
PHILIPPINES (LCP), represented by LCP
National President Jerry P. Treas; CITY
OF CALBAYOG, represented by Mayor
Mel Senen S. Sarmiento; and JERRY P. G.R. No. 177499
TREAS, in his personal capacity as
Taxpayer,
Petitioners,

versus

COMMISSION ON ELECTIONS;
MUNICIPALITY OF LAMITAN,
PROVINCE OF BASILAN;
MUNICIPALITY OF TABUK,
PROVINCE OF KALINGA;
MUNICIPALITY OF BAYUGAN,
PROVINCE OF AGUSAN DEL SUR;
MUNICIPALITY OF BATAC, PROVINCE
OF ILOCOS NORTE; MUNICIPALITY
OF MATI, PROVINCE OF DAVAO
ORIENTAL; AND MUNICIPALITY OF
GUIHULNGAN, PROVINCE OF
NEGROS ORIENTAL,
Respondents.
x----------------------x
LEAGUE OF CITIES OF THE
PHILIPPINES (LCP), represented by LCP
National President Jerry P. Treas; CITY
OF CALBAYOG, represented by Mayor
Mel Senen S. Sarmiento; and JERRY P.
TREAS, in his personal capacity as
Taxpayer,
Petitioners,
G.R. No. 178056
- versus -
Present:
COMMISSION ON ELECTIONS;
MUNICIPALITY OF CABADBARAN, CORONA, C.J.,
PROVINCE OF AGUSAN DEL NORTE; CARPIO,
MUNICIPALITY OF CARCAR, CARPIO MORALES,
PROVINCE OF CEBU; MUNICIPALITY VELASCO, JR.,
OF EL SALVADOR, PROVINCE OF NACHURA,
MISAMIS ORIENTAL; MUNICIPALITY LEONARDO-DE CASTRO,
OF NAGA, CEBU; and DEPARTMENT BRION,
OF BUDGET AND MANAGEMENT, PERALTA, and
Respondents. BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ,
MENDOZA, and
SERENO, JJ.

Promulgated:

April 12, 2011

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

RESOLUTION

BERSAMIN, J.:

We consider and resolve the Ad Cautelam Motion for Reconsideration filed by the petitioners vis-
-vis the Resolution promulgated on February 15, 2011.

To recall, the Resolution promulgated on February 15, 2011 granted the Motion for
Reconsideration of the respondents presented against the Resolution dated August 24, 2010, reversed the
Resolution dated August 24, 2010, and declared the 16 Cityhood Laws Republic Acts Nos. 9389, 9390,
9391, 9392, 9393, 9394, 9398, 9404, 9405, 9407, 9408, 9409, 9434, 9435, 9436, and 9491 constitutional.
 Now, the petitioners anchor their Ad Cautelam Motion for Reconsideration upon the primordial
ground that the Court could no longer modify, alter, or amend its judgment declaring the Cityhood Laws
unconstitutional due to such judgment having long become final and executory. They submit that the
Cityhood Laws violated Section 6 and Section 10 of Article X of the Constitution, as well as the Equal
Protection Clause.

The petitioners specifically ascribe to the Court the following errors in its promulgation of the
assailed February 15, 2011 Resolution, to wit:

I. THE HONORABLE COURT HAS NO JURISDICTION TO PROMULGATE

THE RESOLUTION OF 15 FEBRUARY 2011 BECAUSE THERE IS NO
LONGER ANY ACTUAL CASE OR CONTROVERSY TO SETTLE.
II. THE RESOLUTION CONTRAVENES THE 1997 RULES OF CIVIL
PROCEDURE AND RELEVANT SUPREME COURT ISSUANCES.

III. THE RESOLUTION UNDERMINES THE JUDICIAL SYSTEM IN ITS

DISREGARD OF THE PRINCIPLES OF RES JUDICATA AND THE DOCTRINE
OF IMMUTABILITY OF FINAL JUDGMENTS.

IV. THE RESOLUTION ERRONEOUSLY RULED THAT THE SIXTEEN (16)

CITYHOOD BILLS DO NOT VIOLATE ARTICLE X, SECTIONS 6 AND 10 OF
THE 1987 CONSTITUTION.

V. THE SIXTEEN (16) CITYHOOD LAWS VIOLATE THE EQUAL PROTECTION

CLAUSE OF THE CONSTITUTION AND THE RIGHT OF LOCAL
GOVERNMENTS TO A JUST SHARE IN THE NATIONAL TAXES.

Ruling

Upon thorough consideration, we deny the Ad Cautelam Motion for Reconsideration for its lack
of merit.

I.
Procedural Issues

With respect to the first, second, and third assignments of errors, supra, it appears that the petitioners
assail the jurisdiction of the Court in promulgating the February 15, 2011Resolution, claiming that the
decision herein had long become final and executory. They state that the Court thereby violated rules of
procedure, and the principles of res judicataand immutability of final judgments.
The petitioners posit that the controversy on the Cityhood Laws ended with the April 28, 2009 Resolution
denying the respondents second motion for reconsideration vis--vis the November 18, 2008 Decision for
being a prohibited pleading, and in view of the issuance of the entry of judgment on May 21, 2009.

The Court disagrees with the petitioners.

In the April 28, 2009 Resolution, the Court ruled:

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

2009 is DENIED for lack of merit. The motion is denied since there is no majority that
voted to overturn the Resolution of 31 March 2009.

The Second Motion for Reconsideration of the Decision of 18 November 2008 is

DENIED for being a prohibited pleading, and the Motion for Leave to Admit Attached
Petition in Intervention dated 20 April 2009 and the Petition in Intervention dated 20
April 2009 filed by counsel for Ludivina T. Mas, et al. are also DENIED in view of the
denial of the second motion for reconsideration. No further pleadings shall be
entertained. Let entry of judgment be made in due course.

Justice Presbitero J. Velasco, Jr. wrote a Dissenting Opinion, joined by Justices

Consuelo Ynares-Santiago, Renato C. Corona, Minita Chico-Nazario, Teresita Leonardo-
De Castro, and Lucas P. Bersamin. Chief Justice Reynato S. Puno and Justice Antonio
Eduardo B. Nachura took no part. Justice Leonardo A. Quisumbing is on leave.[1]

Within 15 days from receipt of the April 28, 2009 Resolution, the respondents filed a Motion To
Amend Resolution Of April 28, 2009 By Declaring Instead That Respondents Motion for Reconsideration
Of the Resolution Of March 31, 2009 And Motion For Leave To File, And To Admit Attached Second
Motion For Reconsideration Of The Decision Dated November 18, 2008 Remain Unresolved And To
Conduct Further Proceedings Thereon, arguing therein that a determination of the issue of
constitutionality of the 16 Cityhood Laws upon a motion for reconsideration by an equally divided vote
was not binding on the Court as a valid precedent, citing the separate opinion of then Chief Justice
Reynato S. Puno in Lambino v. Commission on Elections.[2]

Thus, in its June 2, 2009 Resolution, the Court issued the following clarification of the April 28,
2009 Resolution, viz:

As a rule, a second motion for reconsideration is a prohibited pleading pursuant to

Section 2, Rule 52 of the Rules of Civil Procedure which provides that: No second
motion for reconsideration of a judgment or final resolution by the same party shall be
entertained. Thus, a decision becomes final and executory after 15 days from receipt of
the denial of the first motion for reconsideration.
 However, when a motion for leave to file and admit a second motion for
reconsideration is granted by the Court, the Court therefore allows the filing of the
second motion for reconsideration. In such a case, the second motion for
reconsideration is no longer a prohibited pleading.

In the present case, the Court voted on the second motion for reconsideration
filed by respondent cities. In effect, the Court allowed the filing of the second motion
for reconsideration. Thus, the second motion for reconsideration was no longer a
prohibited pleading. However, for lack of the required number of votes to overturn
the 18 November 2008 Decision and 31 March 2009 Resolution, the Court denied the
second motion for reconsideration in its 28 April 2009 Resolution.[3]

As the result of the aforecited clarification, the Court resolved to expunge from the records
several pleadings and documents, including respondents Motion To Amend Resolution Of April 28, 2009
etc.

The respondents thus filed their Motion for Reconsideration of the Resolution of June 2, 2009,
asseverating that their Motion To Amend Resolution Of April 28, 2009 etc.was not another motion for
reconsideration of the November 18, 2008 Decision, because it assailed the April 28, 2009 Resolution
with respect to the tie-vote on the respondents Second Motion For Reconsideration. They pointed out that
the Motion To Amend Resolution Of April 28, 2009 etc. was filed on May 14, 2009, which was within the
15-day period from their receipt of the April 28, 2009 Resolution; thus, the entry of judgment had been
prematurely made. They reiterated their arguments with respect to a tie-vote upon an issue of
constitutionality.

In the September 29, 2009 Resolution,[4] the Court required the petitioners to comment on
the Motion for Reconsideration of the Resolution of June 2, 2009 within 10 days from receipt.

As directed, the petitioners filed their Comment Ad Cautelam With Motion to Expunge.

The respondents filed their Motion for Leave to File and to Admit Attached Reply to Petitioners
Comment Ad Cautelam With Motion to Expunge, together with the Reply.

On November 17, 2009, the Court resolved to note the petitioners Comment Ad Cautelam With
Motion to Expunge, to grant the respondents Motion for Leave to File and Admit Reply to Petitioners
Comment Ad Cautelam with Motion to Expunge, and to note the respondents Reply to Petitioners
Comment Ad Cautelam with Motion to Expunge.
 On December 21, 2009, the Court, resolving the Motion To Amend Resolution Of April 28, 2009
etc. and voting anew on the Second Motion For Reconsideration in order to reach a concurrence of a
majority, promulgated its Decision granting the motion and declaring the Cityhood Laws as
constitutional,[5] disposing thus:

WHEREFORE, respondent LGUs Motion for Reconsideration dated June 2, 2009,

their Motion to Amend the Resolution of April 28, 2009 by Declaring Instead that
Respondents Motion for Reconsideration of the Resolution of March 31, 2009 and
Motion for Leave to File and to Admit Attached Second Motion for Reconsideration of
the Decision Dated November 18, 2008 Remain Unresolved and to Conduct Further
Proceedings, dated May 14, 2009, and their second Motion for Reconsideration of the
Decision dated November 18, 2008 are GRANTED. The June 2, 2009, the March 31,
2009, and April 31, 2009 Resolutions are REVERSED and SET ASIDE. The entry of
judgment made on May 21, 2009 must accordingly be RECALLED.

The instant consolidated petitions and petitions-in-intervention are DISMISSED.

The cityhood laws, namely Republic Act Nos. 9389, 9390, 9391, 9392, 9393, 9394, 9398,
9404, 9405, 9407, 9408, 9409, 9434, 9435, 9436, and 9491 are
declared VALID and CONSTITUTIONAL.

SO ORDERED.

On January 5, 2010, the petitioners filed an Ad Cautelam Motion for Reconsideration against
the December 21, 2009 Decision.[6] On the same date, the petitioners also filed a Motion to Annul
Decision of 21 December 2009.[7]

On January 12, 2010, the Court directed the respondents to comment on the motions of the
petitioners.[8]

On February 4, 2010, petitioner-intervenors City of Santiago, City of Legazpi, and City

of Iriga filed their separate Manifestations with Supplemental Ad Cautelam Motions for
Reconsideration.[9] Similar manifestations with supplemental motions for reconsideration were filed by
other petitioner-intervenors, specifically: City of Cadiz on February 15, 2010;[10] City
of Batangas on February 17, 2010;[11] and City of Oroquieta on February 24, 2010.[12] The Court required
the adverse parties to comment on the motions.[13] As directed, the respondents complied.

On August 24, 2010, the Court issued its Resolution reinstating the November 18,
2008 Decision.[14]
On September 14, 2010, the respondents timely filed a Motion for Reconsideration of the Resolution
Dated August 24, 2010.[15] They followed this by filing on September 20, 2010 a Motion to Set Motion for
Reconsideration of the Resolution dated August 24, 2010 for Hearing.[16] On November 19, 2010, the
petitioners sent in their Opposition [To the Motion for Reconsideration of Resolution dated August 24,
2010].[17] On November 30, 2010,[18] the Court noted, among others, the petitioners Opposition.

On January 18, 2011,[19] the Court denied the respondents Motion to Set Motion for
Reconsideration of the Resolution dated August 24, 2010 for Hearing.

Thereafter, on February 15, 2011, the Court issued the Resolution being now challenged.

It can be gleaned from the foregoing that, as the June 2, 2009 Resolution clarified, the respondents Second
Motion For Reconsideration was not a prohibited pleading in view of the Courts voting and acting on it
having the effect of allowing the Second Motion For Reconsideration; and that when the respondents
filed their Motion for Reconsideration of the Resolution of June 2, 2009 questioning the expunging of
their Motion To Amend Resolution Of April 28, 2009 etc. (which had been filed within the 15-day period
from receipt of the April 28, 2009 Resolution), the Court opted to act on the Motion for Reconsideration
of the Resolution of June 2, 2009 by directing the adverse parties through its September 29, 2009
Resolution to comment. The same permitting effect occurred when the Court, by its November 17, 2009
Resolution, granted the respondents Motion for Leave to File and Admit Reply to Petitioners Comment Ad
Cautelam with Motion to Expunge, and noted the attached Reply.

Moreover, by issuing the Resolutions dated September 29, 2009 and November 17, 2009, the
Court: (a) rendered ineffective the tie-vote under the Resolution of April 28, 2009 and the ensuing denial
of the Motion for Reconsideration of the Resolution of March 31, 2009 for lack of a majority to overturn;
(b), re-opened the Decision of November 18, 2008 for a second look under reconsideration; and (c) lifted
the directive that no further pleadings would be entertained. The Court in fact entertained and acted on the
respondents Motion for Reconsideration of the Resolution of June 2, 2009. Thereafter, the Court
proceeded to deliberate anew on the respondents Second Motion for Reconsideration and ended up with
the promulgation of the December 21, 2009 Decision (declaring the Cityhood Laws valid and
constitutional).

It is also inaccurate for the petitioners to insist that the December 21, 2009 Decision overturned
the November 18, 2008 Decision on the basis of the mere Reflections of the Members of the Court. To be
sure, the Reflections were the legal opinions of the Members and formed part of the deliberations of the
Court. The reference in the December 21, 2009 Decision to the Reflections pointed out that there was still
a pending incident after the April 28, 2009 Resolution that had been timely filed within 15 days from its
receipt,[20] pursuant to Section 10, Rule 51,[21] in relation to Section 1, Rule 52,[22] of the Rules of Court.
Again, the Court did act and deliberate upon this pending incident, leading to the issuance of
the December 21, 2009 Decision (declaring the Cityhood Laws free from constitutional infirmity). It was
thereafter that the Court rendered its August 24, 2010Resolution (reinstating the November 18, 2008
Decision), to correct which the respondents Motion for Reconsideration of the Resolution Dated August
24, 2010 was filed. And, finally, the Court issued its February 15, 2011 Resolution, reversing and setting
aside the August 24, 2010 Resolution.

It is worth repeating that the actions taken herein were made by the Court en banc strictly in accordance
with the Rules of Court and its internal procedures. There has been no irregularity attending or tainting the
proceedings.

It also relevant to state that the Court has frequently disencumbered itself under extraordinary
circumstances from the shackles of technicality in order to render just and equitable relief.[23]

On whether the principle of immutability of judgments and bar by res judicata apply herein,
suffice it to state that the succession of the events recounted herein indicates that the controversy about
the 16 Cityhood Laws has not yet been resolved with finality. As such, the operation of the principle of
immutability of judgments did not yet come into play. For the same reason is an adherence to the doctrine
of res judicata not yet warranted, especially considering that the precedential ruling for this case needed
to be revisited and set with certainty and finality.

II.
Substantive Issues
The petitioners reiterate their position that the Cityhood Laws violate Section 6 and Section 10 of
Article X of the Constitution, the Equal Protection Clause, and the right of local governments to a just
share in the national taxes.

The Court differs.

Congress clearly intended that the local government units covered by the Cityhood Laws be
exempted from the coverage of R.A. No. 9009. The apprehensions of the then Senate President with
respect to the considerable disparity between the income requirement of P20 million under the Local
Government Code (LGC) prior to its amendment, and the P100 million under the amendment introduced
by R.A. No. 9009 were definitively articulated in his interpellation of Senator Pimentel during the
deliberations on Senate Bill No. 2157. The then Senate President was cognizant of the fact that there were
municipalities that then had pending conversion bills
during the 11th Congress prior to the adoption of Senate Bill No. 2157 as R.A. No. 9009,[24] including the
municipalities covered by the Cityhood Laws. It is worthy of mention that the pertinent deliberations on
Senate Bill No. 2157 occurred on October 5, 2000 while the 11th Congress was in session, and the
conversion bills were then pending in the Senate. Thus, the responses of Senator Pimentel made it
obvious that R.A. No. 9009 would not apply to the conversion bills then pending deliberation in the
Senate during the 11th Congress.

R.A. No. 9009 took effect on June 30, 2001, when the 12th Congress was incipient. By reason of
the clear legislative intent to exempt the municipalities covered by theconversion bills pending during the
11th
Congress, the House of Representatives adopted Joint Resolution No. 29, entitled Joint Resolution to
Exempt Certain Municipalities Embodied in Bills Filed in Congress before June 30, 2001 from the
coverage of Republic Act No. 9009. However, the Senate failed to act on Joint Resolution No. 29. Even
so, the House of Representatives readopted Joint Resolution No. 29 as
Joint Resolution No. 1 during the 12th Congress,[25] and forwarded Joint Resolution No. 1 to the Senate for
approval. Again, the Senate failed to approve Joint Resolution No. 1.

At this juncture, it is worthwhile to consider the manifestation of Senator Pimentel with respect to
Joint Resolution No. 1, to wit:
MANIFESTATION OF SENATOR PIMENTEL
House Joint Resolution No. 1 seeks to exempt certain municipalities seeking conversion
into cities from the requirement that they must have at least P100 million in income of
locally generated revenue, exclusive of the internal revenue share that they received from
the central government as required under Republic Act No. 9009.

The procedure followed by the House is questionable, to say the least. The House wants
the Senate to do away with the income requirement of P100 million so that, en masse, the
municipalities they want exempted could now file bills specifically converting them into
cities. The reason they want the Senate to do it first is that Cong. Dodo Macias, chair of
the House Committee on Local Governments, I am told, will not entertain any bill for the
conversion of municipalities into cities unless the issue of income requirement is first
hurdled. The House leadership therefore wants to shift the burden of exempting certain
municipalities from the income requirement to the Senate rather than do it itself.

That is most unusual because, in effect, the House wants the Senate to pass a blanket
resolution that would qualify the municipalities concerned for conversion into cities on
the matter of income alone. Then, at a later date, the House would pass specific bills
converting the municipalities into cities. However, income is not only the requirement for
municipalities to become cities. There are also the requirements on population and land
area.
 In effect, the House wants the Senate to tackle the qualification of the municipalities they
want converted into cities piecemeal and separately, first is the income under the joint
resolution, then the other requirements when the bills are file to convert specific
municipalities into cities. To repeat, this is a most unusual manner of creating cities.

My respectful suggestion is for the Senate to request the House to do what they want to
do regarding the applications of certain municipalities to become cities pursuant to the
requirements of the Local Government Code. If the House wants to exempt certain
municipalities from the requirements of the Local Government Code to become cities, by
all means, let them do their thing.Specifically, they should act on specific bills to create
cities and cite the reasons why the municipalities concerned are qualified to become
cities. Only after the House shall have completed what they are expected to do under the
law would it be proper for the Senate to act on specific bills creating cities.

In other words, the House should be requested to finish everything that needs to be done
in the matter of converting municipalities into cities and not do it piecemeal as they are
now trying to do under the joint resolution.

In my long years in the Senate, this is the first time that a resort to this subterfuge is being
undertaken to favor the creation of certain cities. I am not saying that they are not
qualified. All I am saying is, if the House wants to pass and create cities out of
certain municipalities, by all means let them do that. But they should do it following
the requirements of the Local Government Code and, if they want to make certain
exceptions, they can also do that too. But they should not use the Senate as a ploy to
get things done which they themselves should do.

Incidentally, I have recommended this mode of action verbally to some leaders of the
House. Had they followed the recommendation, for all I know, the municipalities they
had envisioned to be covered by House Joint Resolution No. 1 would, by now if not all,
at least some have been converted into cities. House Joint Resolution No. 1, the House, in
effect, caused the delay in the approval in the applications for cityhood of the
municipalities concerned.

Lastly, I do not have an amendment to House Joint Resolution No. 1. What I am

suggesting is for the Senate to request the House to follow the procedure outlined in the
Local Government Code which has been respected all through the years. By doing so,
we uphold the rule of law
and minimize the possibilities of power play in the approval of bills converting
municipalities into cities.[26]

Thereafter, the conversion bills of the respondents were individually

filed in the House of Representatives, and were all unanimously and

favorably voted upon by the Members of the House of Representatives.[27] The bills, when forwarded to
the Senate, were likewise unanimously approved by the Senate.[28] The acts of both Chambers of
Congress show that the exemption clauses ultimately incorporated in the Cityhood Laws are but the
express articulations of the clear legislative intent to exempt the respondents, without exception, from the
coverage of R.A. No. 9009. Thereby, R.A. No. 9009, and, by necessity, the LGC, were amended, not by
repeal but by way of the express exemptions being embodied in the exemption clauses.

The petitioners further contend that the new income requirement of P100 million from locally generated
sources is not arbitrary because it is not difficult to comply with; that there are several municipalities that
have already complied with the requirement and have, in fact, been converted into cities, such as Sta.
Rosa in Laguna (R.A. No 9264), Navotas (R.A. No. 9387) and San Juan (R.A. No. 9388) in Metro
Manila, Dasmarias in Cavite (R.A. No. 9723), and Bian in Laguna (R.A. No. 9740); and that several other
municipalities have supposedly reached the income of P100 million from locally generated sources, such
as Bauan in Batangas, Mabalacat in Pampanga, and Bacoor in Cavite.

The contention of the petitioners does not persuade.

As indicated in the Resolution of February 15, 2011, fifty-nine (59) existing cities had failed as of
2006 to post an average annual income of P100 million based on the figures contained in the certification
dated December 5, 2008 by the Bureau of Local Government. The large number of existing cities,
virtually 50% of them, still unable to comply with the P100 million threshold income five years after R.A.
No. 9009 took effect renders it fallacious and probably unwarranted for the petitioners to claim that
the P100 million income requirement is not difficult to comply with.

In this regard, the deliberations on Senate Bill No. 2157 may prove enlightening, thus:
Senator Osmea III. And could the gentleman help clarify why a municipality would
want to be converted into a city?

Senator Pimentel. There is only one reason, Mr. President, and it is not hidden. It is the
fact that once converted into a city, the municipality will have roughly more than three
times the share that it would be receiving over the internal revenue allotment than it
would have if it were to remain a municipality. So more or less three times or more.

Senator Osmea III. Is it the additional funding that they will be able to enjoy from a
larger share from the internal revenue allocations?

Senator Pimentel. Yes, Mr. President.

Senator Osmea III. Now, could the gentleman clarify, Mr. President, why in the original
Republic Act No. 7160, known as the Local Government Code of 1991, such a wide gap
was made between a municipalitywhat a municipality would earnand a city? Because
essentially, to a persons mind, even with this new requirement, if approved by Congress,
if a municipality is earning P100 million and has a population of more than 150,000
inhabitants but has less than 100 square kilometers, it would not qualify as a city.
Senator Pimentel. Yes.

Senator Osmea III. Now would that not be quite arbitrary on the part of the
municipality?

Senator Pimentel. In fact, Mr. President, the House version restores the or. So, this is a
matter that we can very well take up as a policy issue. The chair of the committee does
not say that we should, as we know, not listen to arguments for the restoration of the
word or in the population or territorial requirement.

Senator Osmea III. Mr. President, my point is that, I agree with the gentlemans and, but
perhaps we should bring down the area. There are certainly very crowded places in this
country that are less than 10,000 hectares100 square kilometers is 10,000 hectares. There
might only be 9,000 hectares or 8,000 hectares. And it would be unfair if these
municipalities already earning P100,000,000 in locally generated funds and have a
population of over 150,000 would not be qualified because of the simple fact that the
physical area does not cover 10,000 hectares.

Senator Pimentel. Mr. President, in fact, in Metro Manila there are any number of
municipalities. San Juan is a specific example which, if we apply the present
requirements, would not qualify: 100 square kilometers and a population of not less than
150,000.

But my reply to that, Mr. President, is that they do not have to become a city?

Senator Osmea III. Because of the income.

Senator Pimentel. But they are already earning a lot, as the gentleman said. Otherwise,
the danger here, if we become lax in the requirements, is the metropolis-located
local governments would have more priority in terms of funding because they would
have more qualifications to become a city compared to far-flung areas in Mindanao
or in the Cordilleras, or whatever.

Therefore, I think we should not probably ease up on the requirements. Maybe we can
restore the word or so that if they do not have the 100 square kilometers of territory, then
if they qualify in terms of population and income, that would be all right, Mr. President.

Senator Osmea III. Mr. President, I will not belabor the point at this time. I know that
the distinguished gentleman is considering several amendments to the Local Government
Code. Perhaps this is something that could be further refined at a later time, with his
permission.

So I would like to thank the gentleman for his graciousness in answering our questions.

Senator Pimentel. I also thank the gentleman, Mr. President.[29]

The Court takes note of the fact that the municipalities cited by the petitioners as having generated the
threshold income of P100 million from local sources, including those already converted into cities, are
either in Metro Manila or in provinces close to Metro Manila. In comparison, the municipalities covered
by the Cityhood Laws are spread out in the different provinces of the Philippines, including the Cordillera
and Mindanao regions, and are considerably very distant from Metro Manila. This reality underscores the
danger the enactment of R.A. No. 9009 sought to prevent, i.e., that the metropolis-located local
governments would have more priority in terms of funding because they would have more qualifications
to become a city compared to the far-flung areas in Mindanao or in the Cordilleras, or whatever, actually
resulting from the abrupt increase in the income requirement. Verily, this result is antithetical to what the
Constitution and LGC have nobly envisioned in favor of countryside development and national
growth. Besides, this result should be arrested early, to avoid the unwanted divisive effect on the entire
country due to the local government units closer to the National Capital Region being afforded easier
access to the bigger share in the national coffers than other local government units.

There should also be no question that the local government units covered by the Cityhood Laws belong to
a class of their own. They have proven themselves viable and capable to become component cities of their
respective provinces. They are and have been centers of trade and commerce, points of convergence of
transportation, rich havens of agricultural, mineral, and other natural resources, and flourishing tourism
spots. In his speech delivered on the floor of the Senate to sponsor House Joint Resolution No. 1, Senator
Lim recognized such unique traits,[30] viz:

It must be noted that except for Tandag and Lamitan, which are both second-class
municipalities in terms of income, all the rest are categorized by the Department of
Finance as first-class municipalities with gross income of at least P70 million as per
Commission of Audit Report for 2005. Moreover, Tandag and Lamitan, together with
Borongan, Catbalogan, and Tabuk, are all provincial capitals.

The more recent income figures of the 12 municipalities, which would have
increased further by this time, indicate their readiness to take on the responsibilities of
cityhood.

Moreover, the municipalities under consideration are leading localities in their

respective provinces. Borongan, Catbalogan, Tandag, Batac and Tabuk are ranked
number one in terms of income among all the municipalities in their respective provinces;
Baybay and Bayugan are number two; Bogo and Lamitan are number three; Carcar,
number four; and Tayabas, number seven.Not only are they pacesetters in their respective
provinces, they are also among the frontrunners in their regions Baybay, Bayugan and
Tabuk are number two income-earners in Regions VIII, XIII, and CAR, respectively;
Catbalogan and Batac are number three in Regions VIII and I, respectively; Bogo,
number five in Region VII; Borongan and Carcar are both number six in Regions VIII
and VII, respectively. This simply shows that these municipalities are viable.
 Petitioner League of Cities argues that there exists no issue with respect to the cityhood of its
member cities, considering that they became cities in full compliance with the criteria for conversion at
the time of their creation.

The Court considers the argument too sweeping. What we pointed out was that the previous
income requirement of P20 million was definitely not insufficient to provide the essential government
facilities, services, and special functions vis--vis the population of a component city. We also stressed that
the increased income requirement of P100 million was not the only conclusive indicator for any
municipality to survive and remain viable as a component city. These observations were unerringly
reflected in the respective incomes of the fifty-nine (59) members of the League of Cities that have still
failed, remarkably enough, to be compliant with the new requirement of the P100 million threshold
income five years after R.A. No. 9009 became law.

Undoubtedly, the imposition of the income requirement of P100 million from local sources under R.A.
No. 9009 was arbitrary. When the sponsor of the law chose the specific figure of P100 million, no
research or empirical data buttressed the figure. Nor was there proof that the proposal took into account
the after-effects that were likely to arise. As already mentioned, even the danger the passage of R.A. No.
9009 sought to prevent might soon become a reality. While the Constitution mandates that the creation of
local government units must comply with the criteria laid down in the LGC, it cannot be justified to insist
that the Constitution must have to yield to every amendment to the LGC despite such amendment
imminently producing effects contrary to the original thrusts of the LGC to promote autonomy,
decentralization, countryside development, and the concomitant national growth.

Moreover, if we were now to adopt the stringent interpretation of the Constitution the petitioners are
espousing, we may have to apply the same restrictive yardstick against the recently converted cities cited
by the petitioners, and find two of them whose conversion laws have also to be struck down for being
unconstitutional. The two laws are R.A. No. 9387[31] and R.A. No. 9388,[32] respectively converting the
municipalities of San Juan and Navotas into highly urbanized cities. A cursory reading of the laws
indicates that there is no indication of compliance with the requirements imposed by the LGC, for,
although the two local government units concerned presumably complied with the income requirement
of P50 million under Section 452 of the LGC and the income requirement of P100 million under the
amended Section 450 of the LGC, they obviously did not meet the requirements set forth under Section
453 of the LGC, to wit:

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.

Indeed, R.A. No. 9387 and R.A. No. 9388 evidently show that the President had not
classified San Juan and Navotas as highly urbanized cities upon proper application and ratification in a
plebiscite by the qualified voters therein. A further perusal of R.A. No. 9387 reveals that San Juan did not
qualify as a highly urbanized city because it had a population of only 125,558, contravening the required
minimum population of 200,000 under Section 452 of the LGC. Such non-qualification as a component
city was conceded even by Senator Pimentel during the deliberations on Senate Bill No. 2157.

The petitioners contention that the Cityhood Laws violated their right to a just share in the
national taxes is not acceptable.

In this regard, it suffices to state that the share of local government units is a matter of percentage
under Section 285 of the LGC, not a specific amount. Specifically, the share of the cities is 23%,
determined on the basis of population (50%), land area (25%), and equal sharing (25%). This share is also
dependent on the number of existing cities, such that when the number of cities increases, then more will
divide and share the allocation for cities. However, we have to note that the allocation by the National
Government is not a constant, and can either increase or decrease. With every newly converted city
becoming entitled to share the allocation for cities, the percentage of internal revenue allotment (IRA)
entitlement of each city will decrease, although the actual amount received may be more than that
received in the preceding year. That is a necessary consequence of Section 285 and Section 286 of the
LGC.

As elaborated here and in the assailed February 15, 2011 Resolution, the Cityhood Laws were not
violative of the Constitution and the LGC. The respondents are thus also entitled to their just share in the
IRA allocation for cities. They have demonstrated their viability as component cities of their respective
provinces and are developing continuously, albeit slowly, because they had previously to share the IRA
with about 1,500 municipalities. With their conversion into component cities, they will have to share with
only around 120 cities.

Local government units do not subsist only on locally generated income, but also depend on the
IRA to support their development. They can spur their own developments and thereby realize their great
potential of encouraging trade and commerce in the far-flung regions of the country. Yet their potential
will effectively be stunted if those already earning more will still receive a bigger share from the national
coffers, and if commercial activity will be more or less concentrated only in and near Metro Manila.

III.
Conclusion

We should not ever lose sight of the fact that the 16 cities covered by the Cityhood Laws not only
had conversion bills pending during the 11th Congress, but have also complied with the requirements of
the LGC prescribed prior to its amendment by R.A. No. 9009. Congress undeniably gave these cities all
the considerations that justice and fair play demanded. Hence, this Court should do no less by stamping
its imprimatur to the clear and unmistakable legislative intent and by duly recognizing the certain
collective wisdom of Congress.

WHEREFORE, the Ad Cautelam Motion for Reconsideration (of the Decision dated 15
February 2011) is denied with finality.

SO ORDERED.
BAI SANDRA S. A. SEMA, G.R. No. 177597
Petitioner,

- versus -

COMMISSION ON ELECTIONS
and DIDAGEN P. DILANGALEN,

Respondents.

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

PERFECTO F. MARQUEZ, G.R. No. 178628

Petitioner,

Present:
PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,

CARPIO,

AUSTRIA-MARTINEZ,
CORONA,
CARPIO MORALES,
- versus - AZCUNA,
TINGA,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
REYES,
LEONARDO-DE CASTRO, and
BRION, JJ.

COMMISSION ON ELECTIONS, Promulgated:

Respondent. July 16, 2008

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

DECISION

CARPIO, J.:

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
Province of Shariff Kabunsuan.[2]

The Facts

The Ordinance appended to the 1987 Constitution apportioned two legislative districts for
the Province of Maguindanao. The first legislative district consists of Cotabato City and eight
municipalities.[3] Maguindanao forms part of the Autonomous Region in Muslim Mindanao (ARMM),
created under its Organic Act, Republic Act No. 6734 (RA 6734), as amended by Republic Act No.
9054 (RA 9054).[4] Although under the Ordinance, Cotabato City forms part of Maguindanaos first
legislative district, it is not part of the ARMM but of Region XII, having voted against its inclusion in the
ARMM in the plebiscite held in November 1989.

On 28 August 2006, the ARMMs legislature, the ARMM Regional Assembly, exercising its power to
create provinces under Section 19, Article VI of RA 9054,[5] enacted Muslim Mindanao Autonomy Act
No. 201 (MMA Act 201) creating the Province of Shariff Kabunsuan composed of the eight
municipalities in the first district of Maguindanao.MMA Act 201 provides:
Section 1. The Municipalities of Barira, Buldon, Datu Odin Sinsuat, Kabuntalan,
Matanog, Parang, Sultan Kudarat, Sultan Mastura, and Upi are hereby separated from
the Province of Maguindanao and constituted into a distinct and independent province,
which is hereby created, to be known as the Province of Shariff Kabunsuan.

xxxx

Sec. 5. The corporate existence of this province shall commence upon the
appointment by the Regional Governor or election of the governor and majority of the
regular members of the Sangguniang Panlalawigan.

The incumbent elective provincial officials of the Province of Maguindanao shall

continue to serve their unexpired terms in the province that they will choose or where
they are residents:Provided, that where an elective position in both provinces becomes
vacant as a consequence of the creation of the Province of Shariff Kabunsuan, all
incumbent elective provincial officials shall have preference for appointment to a higher
elective vacant position and for the time being be appointed by the Regional Governor,
and shall hold office until their successors shall have been elected and qualified in the
next local elections; Provided, further, that they shall continue to receive the salaries they
are receiving at the time of the approval of this Act until the new readjustment of salaries
in accordance with law. Provided, furthermore, that there shall be no diminution in the
number of the members of the Sangguniang Panlalawigan of the mother province.

Except as may be provided by national law, the existing legislative district, which
includes Cotabato as a part thereof, shall remain.

Later, three new municipalities[6] were carved out of the original nine municipalities constituting Shariff
Kabunsuan, bringing its total number of municipalities to 11. Thus, what was left of Maguindanao were
the municipalities constituting its second legislative district. Cotabato City, although part of
Maguindanaos first legislative district, is not part of the Province of Maguindanao.

The voters of Maguindanao ratified Shariff Kabunsuans creation in a plebiscite held on 29

October 2006.
 On 6 February 2007, the Sangguniang Panlungsod of Cotabato City passed Resolution No. 3999
requesting the COMELEC to clarify the status of Cotabato City in view of the conversion of the First
District of Maguindanao into a regular province under MMA Act 201.
In answer to Cotabato Citys query, the COMELEC issued Resolution No. 07-0407 on 6 March
2007 "maintaining the status quo with Cotabato City as part of Shariff Kabunsuan in the First Legislative
District of Maguindanao. Resolution No. 07-0407, which adopted the recommendation of the
COMELECs Law Department under a Memorandum dated 27 February 2007,[7] provides in pertinent
parts:

Considering the foregoing, the Commission RESOLVED, as it hereby resolves, to adopt

the recommendation of the Law Department that pending the enactment of the
appropriate law by Congress, to maintain the status quo with Cotabato City as part of
Shariff Kabunsuan in the First Legislative District of Maguindanao. (Emphasis supplied)

However, in preparation for the 14 May 2007 elections, the COMELEC promulgated on 29
March 2007 Resolution No. 7845 stating that Maguindanaos first legislative district is composed only
of Cotabato City because of the enactment of MMA Act 201.[8]

On 10 May 2007, the COMELEC issued Resolution No. 7902, subject of these petitions, amending
Resolution No. 07-0407 by renaming the legislative district in question
as Shariff Kabunsuan Province with Cotabato City (formerly First District of Maguindanao
[9]
with Cotabato City).

In G.R. No. 177597, Sema, who was a candidate in the 14 May 2007 elections for Representative of
Shariff Kabunsuan with Cotabato City, prayed for the nullification of COMELEC Resolution No. 7902
and the exclusion from canvassing of the votes cast in Cotabato City for that office. Sema contended that
Shariff Kabunsuan is entitled to one representative in Congress under Section 5 (3), Article VI of the
Constitution[10] and Section 3 of the Ordinance appended to the Constitution.[11] Thus, Sema asserted that
the COMELEC acted without or in excess of its jurisdiction in issuing Resolution No. 7902 which
maintained the status quo in Maguindanaos first legislative district despite the COMELECs earlier
directive in Resolution No. 7845 designating Cotabato City as the lone component of Maguindanaos
reapportioned first legislative district.[12] Sema further claimed that in issuing Resolution No. 7902, the
COMELEC usurped Congress power to create or reapportion legislative districts.

In its Comment, the COMELEC, through the Office of the Solicitor General (OSG), chose not to reach
the merits of the case and merely contended that (1) Sema wrongly availed of the writ of certiorari to
nullify COMELEC Resolution No. 7902 because the COMELEC issued the same in the exercise of its
administrative, not quasi-judicial, power and (2) Semas prayer for the writ of prohibition in G.R. No.
177597 became moot with the proclamation of respondent Didagen P. Dilangalen (respondent
Dilangalen) on 1 June 2007 as representative of the legislative district of Shariff Kabunsuan Province
with Cotabato City.

In his Comment, respondent Dilangalen countered that Sema is estopped from questioning COMELEC
Resolution No. 7902 because in her certificate of candidacy filed on 29 March 2007, Sema indicated that
she was seeking election as representative of Shariff Kabunsuan including Cotabato City. Respondent
Dilangalen added that COMELEC Resolution No. 7902 is constitutional because it did not apportion a
legislative district for Shariff Kabunsuan or reapportion the legislative districts in Maguindanao but
merely renamed Maguindanaos first legislative district. Respondent Dilangalen further claimed that the
COMELEC could not reapportion Maguindanaos first legislative district to make Cotabato City its sole
component unit as the power to reapportion legislative districts lies exclusively with Congress, not to
mention that Cotabato City does not meet the minimum population requirement under Section 5 (3),
Article VI of the Constitution for the creation of a legislative district within a city.[13]

Sema filed a Consolidated Reply controverting the matters raised in respondents Comments and
reiterating her claim that the COMELEC acted ultra vires in issuing Resolution No. 7902.

In the Resolution of 4 September 2007, the Court required the parties in G.R. No. 177597 to
comment on the issue of whether a province created by the ARMM Regional Assembly under Section 19,
Article VI of RA 9054 is entitled to one representative in the House of Representatives without need of a
national law creating a legislative district for such new province. The parties submitted their compliance
as follows:

(1) Sema answered the issue in the affirmative on the following grounds: (a) the Court in Felwa
v. Salas[14] stated that when a province is created by statute, the corresponding representative district
comes into existence neither by authority of that statute which cannot provide otherwise nor by
apportionment, but by operation of the Constitution, without a reapportionment; (b) Section 462 of
Republic Act No. 7160 (RA 7160) affirms the apportionment of a legislative district incident to the
creation of a province; and (c) Section 5 (3), Article VI of the Constitution and Section 3 of the Ordinance
appended to the Constitution mandate the apportionment of a legislative district in newly created
provinces.
 (2) The COMELEC, again represented by the OSG, apparently abandoned its earlier stance on
the propriety of issuing Resolution Nos. 07-0407 and 7902 and joined causes with Sema, contending that
Section 5 (3), Article VI of the Constitution is self-executing. Thus, every new province created by the
ARMM Regional Assembly is ipso facto entitled to one representative in the House of Representatives
even in the absence of a national law; and

(3) Respondent Dilangalen answered the issue in the negative on the following grounds: (a) the
province contemplated in Section 5 (3), Article VI of the Constitution is one that is created by an act of
Congress taking into account the provisions in RA 7160 on the creation of provinces; (b) Section 3,
Article IV of RA 9054 withheld from the ARMM Regional Assembly the power to enact measures
relating to national elections, which encompasses the apportionment of legislative districts for members
of the House of Representatives; (c) recognizing a legislative district in every province the ARMM
Regional Assembly creates will lead to the disproportionate representation of the ARMM in the House of
Representatives as the Regional Assembly can create provinces without regard to the requirements in
Section 461 of RA 7160; and (d) Cotabato City, which has a population of less than 250,000, is not
entitled to a representative in the House of Representatives.

On 27 November 2007, the Court heard the parties in G.R. No. 177597 in oral arguments on the
following issues: (1) whether Section 19, Article VI of RA 9054, delegating to the ARMM Regional
Assembly the power to create provinces, is constitutional; and (2) if in the affirmative, whether a province
created under Section 19, Article VI of RA 9054 is entitled to one representative in the House of
Representatives without need of a national law creating a legislative district for such new province. [15]

In compliance with the Resolution dated 27 November 2007, the parties in G.R. No. 177597 filed
their respective Memoranda on the issues raised in the oral arguments. [16] On the question of the
constitutionality of Section 19, Article VI of RA 9054, the parties in G.R. No. 177597 adopted the
following positions:

(1) Sema contended that Section 19, Article VI of RA 9054 is constitutional (a) as a valid
delegation by Congress to the ARMM of the power to create provinces under Section 20 (9), Article X of
the Constitution granting to the autonomous regions, through their organic acts, legislative powers over
other matters as may be authorized by law for the promotion of the general welfare of the people of the
region and (b) as an amendment to Section 6 of RA 7160.[17] However, Sema concedes that, if taken
literally, the grant in Section 19, Article VI of RA 9054 to the ARMM Regional Assembly of the power
to prescribe standards lower than those mandated in RA 7160 in the creation of provinces contravenes
Section 10, Article X of the Constitution.[18] Thus, Sema proposed that Section 19 should be construed as
prohibiting the Regional Assembly from prescribing standards x x x that do not comply with the
minimum criteria under RA 7160.[19]

(2) Respondent Dilangalen contended that Section 19, Article VI of RA 9054 is unconstitutional
on the following grounds: (a) the power to create provinces was not among those granted to the
autonomous regions under Section 20, Article X of the Constitution and (b) the grant under Section 19,
Article VI of RA 9054 to the ARMM Regional Assembly of the power to prescribe standards lower than
those mandated in Section 461 of RA 7160 on the creation of provinces contravenes Section 10, Article X
of the Constitution and the Equal Protection Clause; and

(3) The COMELEC, through the OSG, joined causes with respondent Dilangalen (thus
effectively abandoning the position the COMELEC adopted in its Compliance with the Resolution of 4
September 2007) and contended that Section 19, Article VI of RA 9054 is unconstitutional because (a) it
contravenes Section 10 and Section 6,[20] Article X of the Constitution and (b) the power to create
provinces was withheld from the autonomous regions under Section 20, Article X of the Constitution.

On the question of whether a province created under Section 19, Article VI of RA 9054 is
entitled to one representative in the House of Representatives without need of a national law creating a
legislative district for such new province, Sema and respondent Dilangalen reiterated in their Memoranda
the positions they adopted in their Compliance with the Resolution of 4 September 2007. The
COMELEC deemed it unnecessary to submit its position on this issue considering its stance that Section
19, Article VI of RA 9054 is unconstitutional.

The pendency of the petition in G.R. No. 178628 was disclosed during the oral arguments on 27
November 2007. Thus, in the Resolution of 19 February 2008, the Court ordered G.R. No. 178628
consolidated with G.R. No. 177597. The petition in G.R. No. 178628 echoed Sema's contention that the
COMELEC acted ultra vires in issuing Resolution No. 7902 depriving the voters of Cotabato City of a
representative in the House of Representatives. In its Comment to the petition in G.R. No. 178628, the
COMELEC, through the OSG, maintained the validity of COMELEC Resolution No. 7902 as a
temporary measure pending the enactment by Congress of the appropriate law.

The Issues

The petitions raise the following issues:

I. In G.R. No. 177597:

(A) Preliminarily
(1) whether the writs of Certiorari, Prohibition, and Mandamus are proper to test the
constitutionality of COMELEC Resolution No. 7902; and
(2) whether the proclamation of respondent Dilangalen as representative
of Shariff Kabunsuan Province with Cotabato City mooted the petition in G.R. No. 177597.

(B) On the merits

(1) whether Section 19, Article VI of RA 9054, delegating to the ARMM Regional Assembly the
power to create provinces, cities, municipalities and barangays, is constitutional; and
(2) if in the affirmative, whether a province created by the ARMM Regional Assembly under
MMA Act 201 pursuant to Section 19, Article VI of RA 9054 is entitled to one representative in the
House of Representatives without need of a national law creating a legislative district for such province.

II. In G.R No. 177597 and G.R No. 178628, whether COMELEC Resolution No. 7902 is valid
for maintaining the status quo in the first legislative district of Maguindanao (as Shariff Kabunsuan
Province with Cotabato City [formerly First District of Maguindanao with Cotabato City]), despite the
creation of the Province of Shariff Kabunsuan out of such district (excluding Cotabato City).

The Ruling of the Court

The petitions have no merit. We rule that (1) Section 19, Article VI of RA 9054 is unconstitutional
insofar as it grants to the ARMM Regional Assembly the power to create provinces and cities; (2) MMA
Act 201 creating the Province of Shariff Kabunsuan is void; and (3) COMELEC Resolution No. 7902 is
valid.

On the Preliminary Matter

The Writ of Prohibition is Appropriate

to Test the Constitutionality of
Election Laws, Rules and Regulations
 The purpose of the writ of Certiorari is to correct grave abuse of discretion by any tribunal, board,
or officer exercising judicial or quasi-judicial functions.[21] On the other hand, the writ of Mandamus will
issue to compel a tribunal, corporation, board, officer, or person to perform an act which the law
specifically enjoins as a duty.[22] True, the COMELEC did not issue Resolution No. 7902 in the exercise
of its judicial or quasi-judicial functions.[23] Nor is there a law which specifically enjoins the COMELEC
to exclude from canvassing the votes cast in Cotabato City for representative
of Shariff Kabunsuan Province with Cotabato City. These, however, do not justify the outright dismissal
of the petition in G.R. No. 177597 because Sema also prayed for the issuance of the writ of Prohibition
and we have long recognized this writ as proper for testing the constitutionality of election laws, rules,
and regulations.[24]

Respondent Dilangalens Proclamation

Does Not Moot the Petition

There is also no merit in the claim that respondent Dilangalens proclamation as winner in the 14 May
2007 elections for representative of Shariff Kabunsuan Province with Cotabato City mooted this petition.
This case does not concern respondent Dilangalens election. Rather, it involves an inquiry into the
validity of COMELEC Resolution No. 7902, as well as the constitutionality of MMA Act 201 and
Section 19, Article VI of RA 9054. Admittedly, the outcome of this petition, one way or another,
determines whether the votes cast in Cotabato City for representative of the district
of Shariff Kabunsuan Province with Cotabato City will be included in the canvassing of ballots. However,
this incidental consequence is no reason for us not to proceed with the resolution of the novel issues
raised here. The Courts ruling in these petitions affects not only the recently concluded elections but also
all the other succeeding elections for the office in question, as well as the power of the ARMM Regional
Assembly to create in the future additional provinces.

On the Main Issues

Whether the ARMM Regional Assembly

Can Create the Province of Shariff Kabunsuan

The creation of local government units is governed by Section 10, Article X of the Constitution, which
provides:

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

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

Thus, the creation of any of the four local government units province, city, municipality or barangay
must comply with three conditions. First, the creation of a local government unit must follow the criteria
fixed in the Local Government Code. Second, such creation must not conflict with any provision of the
Constitution. Third, there must be a plebiscite in the political units affected.

There is neither an express prohibition nor an express grant of authority in the Constitution for Congress
to delegate to regional or local legislative bodies the power to create local government units. However,
under its plenary legislative powers, Congress can delegate to local legislative bodies the power to
create local government units, subject to reasonable standards and provided no conflict arises with any
provision of the Constitution. In fact, Congress has delegated to provincial boards, and city and
municipal councils, the power to create barangays within their jurisdiction,[25] subject to compliance
with the criteria established in the Local Government Code, and the plebiscite requirement in Section
10, Article X of the Constitution. However, under the Local Government Code, only x x x an Act of
Congress can create provinces, cities or municipalities.[26]
Under Section 19, Article VI of RA 9054, Congress delegated to the ARMM Regional Assembly the power
to create provinces, cities, municipalities and barangays within the ARMM. Congress made the
delegation under its plenary legislative powers because the power to create local government units is
not one of the express legislative powers granted by the Constitution to regional legislative bodies.[27] In
the present case, the question arises whether the delegation to the ARMM Regional Assembly of the
power to create provinces, cities, municipalities and barangays conflicts with any provision of the
Constitution.

There is no provision in the Constitution that conflicts with the delegation to regional legislative bodies
of the power to create municipalities and barangays, provided Section 10, Article X of the Constitution is
followed. However, the creation of provinces and cities is another matter. Section 5 (3), Article VI of the
Constitution provides, Each city with a population of at least two hundred fifty thousand, or each
province, shall have at least one representative in the House of Representatives. Similarly, Section 3 of
the Ordinance appended to the Constitution provides, Any province that may hereafter be created, or
any city whose population may hereafter increase to more than two hundred fifty thousand shall be
entitled in the immediately following election to at least one Member x x x.

Clearly, a province cannot be created without a legislative district because it will violate Section
5 (3), Article VI of the Constitution as well as Section 3 of the Ordinance appended to the Constitution.
For the same reason, a city with a population of 250,000 or more cannot also be created without a
legislative district. Thus, the power to create a province, or a city with a population of 250,000 or more,
requires also the power to create a legislative district. Even the creation of a city with a population of
less than 250,000 involves the power to create a legislative district because once the citys population
reaches 250,000, the city automatically becomes entitled to one representative under Section 5 (3),
Article VI of the Constitution and Section 3 of the Ordinance appended to the Constitution. Thus, the
power to create a province or city inherently involves the power to create a legislative district.

For Congress to delegate validly the power to create a province or city, it must also validly
delegate at the same time the power to create a legislative district. The threshold issue then is, can
Congress validly delegate to the ARMM Regional Assembly the power to create legislative districts for
the House of Representatives? The answer is in the negative.
Legislative Districts are Created or Reapportioned
Only by an Act of Congress

Under the present Constitution, as well as in past[28] Constitutions, the power to increase the
allowable membership in the House of Representatives, and to reapportion legislative districts, is vested
exclusively in Congress. Section 5, Article VI of the Constitution provides:

SECTION 5. (1) The House of Representatives shall be composed of not more

than two hundred and fifty members, unless otherwise fixed by law, who shall be
elected from legislative districts apportioned among the provinces, cities, and the
Metropolitan Manila area in accordance with the number of their respective inhabitants,
and on the basis of a uniform and progressive ratio, and those who, as provided by law,
shall be elected through a party-list system of registered national, regional, and sectoral
parties or organizations.

xxxx

(3) Each legislative district shall comprise, as far as practicable, contiguous,

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

(4) Within three years following the return of every census, the Congress shall
make a reapportionment of legislative districts based on the standards provided in this
section. (Emphasis supplied)

Section 5 (1), Article VI of the Constitution vests in Congress the power to increase, through a
law, the allowable membership in the House of Representatives. Section 5 (4) empowers Congress to
reapportion legislative districts. The power to reapportion legislative districts necessarily includes the
power to create legislative districts out of existing ones. Congress exercises these powers through a law
that Congress itself enacts, and not through a law that regional or local legislative bodies enact. The
allowable membership of the House of Representatives can be increased, and new legislative districts of
Congress can be created, only through a national law passed by Congress. In Montejo v.
COMELEC,[29] we held that the power of redistricting x x x is traditionally regarded as part of the power
(of Congress) to make laws, and thus is vested exclusively in Congress.

This textual commitment to Congress of the exclusive power to create or reapportion legislative
districts is logical. Congress is a national legislature and any increase in its allowable membership or in
its incumbent membership through the creation of legislative districts must be embodied in a national law.
Only Congress can enact such a law. It would be anomalous for regional or local legislative bodies to
create or reapportion legislative districts for a national legislature like Congress. An inferior legislative
body, created by a superior legislative body, cannot change the membership of the superior legislative
body.

The creation of the ARMM, and the grant of legislative powers to its Regional Assembly under
its organic act, did not divest Congress of its exclusive authority to create legislative districts. This is clear
from the Constitution and the ARMM Organic Act, as amended. Thus, Section 20, Article X of the
Constitution provides:

SECTION 20. Within its territorial jurisdiction and subject to the provisions of
this Constitution and national laws, the organic act of autonomous regions shall provide
for legislative powers over:
(1) Administrative organization;
(2) Creation of sources of revenues;
(3) Ancestral domain and natural resources;
(4) Personal, family, and property relations;
(5) Regional urban and rural planning development;
(6) Economic, social, and tourism development;
(7) Educational policies;
 (8) Preservation and development of the cultural heritage; and
(9) Such other matters as may be authorized by law for the promotion of the
general welfare of the people of the region.

Nothing in Section 20, Article X of the Constitution authorizes autonomous regions, expressly or
impliedly, to create or reapportion legislative districts for Congress.

On the other hand, Section 3, Article IV of RA 9054 amending the ARMM Organic Act,
provides, The Regional Assembly may exercise legislative power x x x except on the following
matters: x x x (k) National elections. x x x. Since the ARMM Regional Assembly has no legislative
power to enact laws relating to national elections, it cannot create a legislative district whose
representative is elected in national elections. Whenever Congress enacts a law creating a legislative
district, the first representative is always elected in the next national elections from the effectivity of the
law.[30]
Indeed, the office of a legislative district representative to Congress is a national office, and its
occupant, a Member of the House of Representatives, is a national official.[31] It would be incongruous
for a regional legislative body like the ARMM Regional Assembly to create a national office when its
legislative powers extend only to its regional territory. The office of a district representative is maintained
by national funds and the salary of its occupant is paid out of national funds. It is a self-evident inherent
limitation on the legislative powers of every local or regional legislative body that it can only create local
or regional offices, respectively, and it can never create a national office.

To allow the ARMM Regional Assembly to create a national office is to allow its legislative
powers to operate outside the ARMMs territorial jurisdiction. This violates Section 20, Article X of the
Constitution which expressly limits the coverage of the Regional Assemblys legislative
powers [w]ithin its territorial jurisdiction x x x.

The ARMM Regional Assembly itself, in creating Shariff Kabunsuan, recognized the exclusive
nature of Congress power to create or reapportion legislative districts by abstaining from creating a
legislative district for Shariff Kabunsuan. Section 5 of MMA Act 201 provides that:
 Except as may be provided by national law, the existing legislative district,
which includes Cotabato City as a part thereof, shall remain. (Emphasis supplied)

However, a province cannot legally be created without a legislative district because the Constitution
mandates that each province shall have at least one representative. Thus, the creation of the Province of
Shariff Kabunsuan without a legislative district is unconstitutional.

Sema, petitioner in G.R. No. 177597, contends that Section 5 (3), Article VI of the Constitution, which
provides:

Each legislative district shall comprise, as far as practicable, contiguous,

compact, and adjacent territory. Each city with a population of at least two hundred
fifty thousand, or each province, shall have at least one representative. (Emphasis
supplied)

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

Any province that may hereafter be created, or any city whose population
may hereafter increase to more than two hundred fifty thousand shall be entitled in
the immediately following election to at least one Member or such number of
Members as it may be entitled to on the basis of the number of its inhabitants and
according to the standards set forth in paragraph (3), Section 5 of Article VI of the
Constitution. The number of Members apportioned to the province out of which such
new province was created or where the city, whose population has so increased, is
geographically located shall be correspondingly adjusted by the Commission on Elections
but such adjustment shall not be made within one hundred and twenty days before the
election. (Emphasis supplied)

serve as bases for the conclusion that the Province of Shariff Kabunsuan, created on 29 October 2006, is
automatically entitled to one member in the House of Representatives in the 14 May 2007 elections. As
further support for her stance, petitioner invokes the statement in Felwa that when a province is created
by statute, the corresponding representative district comes into existence neither by authority of that
statute which cannot provide otherwise nor by apportionment, but by operation of the Constitution,
without a reapportionment.

The contention has no merit.

First. The issue in Felwa, among others, was whether Republic Act No. 4695 (RA 4695), creating the
provinces of Benguet, Mountain Province, Ifugao, and Kalinga-Apayao and providing for congressional
representation in the old and new provinces, was unconstitutional for creati[ng] congressional districts
without the apportionment provided in the Constitution. The Court answered in the negative, thus:

The Constitution ordains:

The House of Representatives shall be composed of not more than one

hundred and twenty Members who shall be apportioned among the
several provinces as nearly as may be according to the number of their
respective inhabitants, but each province shall have at least one Member.
The Congress shall by law make an apportionment within three years
after the return of every enumeration, and not otherwise. Until such
apportionment shall have been made, the House of Representatives shall
have the same number of Members as that fixed by law for the National
Assembly, who shall be elected by the qualified electors from the present
Assembly districts. Each representative district shall comprise as far as
practicable, contiguous and compact territory.
Pursuant to this Section, a representative district may come into existence: (a)
indirectly, through the creation of a province for each province shall have at least
one member in the House of Representatives; or (b) by direct creation of several
representative districts within a province. The requirements concerning the
apportionment of representative districts and the territory thereof refer only to the second
method of creation of representative districts, and do not apply to those incidental to the
creation of provinces, under the first method. This is deducible, not only from the general
tenor of the provision above quoted, but, also, from the fact that the apportionment
therein alluded to refers to that which is made by an Act of Congress. Indeed, when a
province is created by statute, the corresponding representative district, comes into
existence neither by authority of that statute which cannot provide otherwise nor by
apportionment, but by operation of the Constitution, without a reapportionment.
There is no constitutional limitation as to the time when, territory of, or other conditions
under which a province may be created, except, perhaps, if the consequence thereof were
to exceed the maximum of 120 representative districts prescribed in the Constitution,
 which is not the effect of the legislation under consideration. As a matter of fact,
provinces have been created or subdivided into other provinces, with the consequent
creation of additional representative districts, without complying with the aforementioned
requirements.[32] (Emphasis supplied)

Thus, the Court sustained the constitutionality of RA 4695 because (1) it validly created legislative
districts indirectly through a special law enacted by Congress creating a province and (2) the creation
of the legislative districts will not result in breaching the maximum number of legislative
districts provided under the 1935 Constitution. Felwa does not apply to the present case because
in Felwa the new provinces were created by a national law enacted by Congress itself. Here, the new
province was created merely by a regional law enacted by the ARMM Regional Assembly.

What Felwa teaches is that the creation of a legislative district by Congress does not emanate
alone from Congress power to reapportion legislative districts, but also from Congress power to create
provinces which cannot be created without a legislative district. Thus, when a province is created, a
legislative district is created by operation of the Constitution because the Constitution provides that
each province shall have at least one representative in the House of Representatives. This does not
detract from the constitutional principle that the power to create legislative districts belongs exclusively to
Congress. It merely prevents any other legislative body, except Congress, from creating provinces
because for a legislative body to create a province such legislative body must have the power to create
legislative districts. In short, only an act of Congress can trigger the creation of a legislative district by
operation of the Constitution. Thus, only Congress has the power to create, or trigger the creation of, a
legislative district.

Moreover, if as Sema claims MMA Act 201 apportioned a legislative district to Shariff
Kabunsuan upon its creation, this will leave Cotabato City as the lone component of the first legislative
district of Maguindanao. However, Cotabato City cannot constitute a legislative district by itself because
as of the census taken in 2000, it had a population of only 163,849. To constitute Cotabato City alone as
the surviving first legislative district of Maguindanao will violate Section 5 (3), Article VI of the
Constitution which requires that [E]ach city with a population of at least two hundred fifty thousand x x x,
shall have at least one representative.

Second. Semas theory also undermines the composition and independence of the House of
Representatives. Under Section 19,[33] Article VI of RA 9054, the ARMM Regional Assembly can create
provinces and cities within the ARMM with or without regard to the criteria fixed in Section 461 of RA
7160, namely: minimum annual income of P20,000,000, and minimum contiguous territory of 2,000
square kilometers or minimum population of 250,000.[34] The following scenarios thus become distinct
possibilities:

(1) An inferior legislative body like the ARMM Regional Assembly can create
100 or more provinces and thus increase the membership of a superior legislative body,
the House of Representatives, beyond the maximum limit of 250 fixed in the Constitution
(unless a national law provides otherwise);

(2) The proportional representation in the House of Representatives based on one

representative for at least every 250,000 residents will be negated because the ARMM
Regional Assembly need not comply with the requirement in Section 461(a)(ii) of RA
7160 that every province created must have a population of at least 250,000; and

(3) Representatives from the ARMM provinces can become the majority in the
House of Representatives through the ARMM Regional Assemblys continuous creation
of provinces or cities within the ARMM.

The following exchange during the oral arguments of the petition in G.R. No. 177597 highlights
the absurdity of Semas position that the ARMM Regional Assembly can create provinces:

Justice Carpio:
So, you mean to say [a] Local Government can create legislative district[s] and
pack Congress with their own representatives [?]

Atty. Vistan II:[35]

Yes, Your Honor, because the Constitution allows that.
 Justice Carpio:
So, [the] Regional Assembly of [the] ARMM can create and create x x x
provinces x x x and, therefore, they can have thirty-five (35) new representatives
in the House of Representatives without Congress agreeing to it, is that what you
are saying? That can be done, under your theory[?]

Atty. Vistan II:

Yes, Your Honor, under the correct factual circumstances.

Justice Carpio:
Under your theory, the ARMM legislature can create thirty-five (35) new
provinces, there may be x x x [only] one hundred thousand (100,000)
[population], x x x, and they will each have one representative x x x to Congress
without any national law, is that what you are saying?

Atty. Vistan II:

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

xxxx
Justice Carpio:
So, they can also create one thousand (1000) new provinces, sen[d] one
thousand (1000) representatives to the House of Representatives without a
national law[,] that is legally possible, correct?

Atty. Vistan II:

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

 Neither the framers of the 1987 Constitution in adopting the provisions in Article X on regional
autonomy,[37] nor Congress in enacting RA 9054, envisioned or intended these disastrous consequences
that certainly would wreck the tri-branch system of government under our Constitution. Clearly, the
power to create or reapportion legislative districts cannot be delegated by Congress but must be exercised
by Congress itself. Even the ARMM Regional Assembly recognizes this.

The Constitution empowered Congress to create or reapportion legislative districts, not the regional
assemblies. Section 3 of the Ordinance to the Constitution which states, [A]ny province that may
hereafter be created x x x shall be entitled in the immediately following election to at least one
Member, refers to a province created by Congress itself through a national law. The reason is that the
creation of a province increases the actual membership of the House of Representatives, an increase that
only Congress can decide.Incidentally, in the present 14th Congress, there are 219[38] district
representatives out of the maximum 250 seats in the House of Representatives. Since party-list members
shall constitute 20 percent of total membership of the House, there should at least be 50 party-list seats
available in every election in case 50 party-list candidates are proclaimed winners. This leaves only 200
seats for district representatives, much less than the 219 incumbent district representatives. Thus, there is
a need now for Congress to increase by law the allowable membership of the House, even before
Congress can create new provinces.

It is axiomatic that organic acts of autonomous regions cannot prevail over the Constitution. Section 20,
Article X of the Constitution expressly provides that the legislative powers of regional assemblies are
limited [w]ithin its territorial jurisdiction and subject to the provisions of the Constitution and
national laws, x x x. The Preamble of the ARMM Organic Act (RA 9054) itself states that the ARMM
Government is established within the framework of the Constitution. This follows Section 15, Article X
of the Constitution which mandates that the ARMM shall be created x x x within the framework of this
Constitution and the national sovereignty as well as territorial integrity of the Republic of the
Philippines.
 The present case involves the creation of a local government unit that necessarily involves also
the creation of a legislative district. The Court will not pass upon the constitutionality of the creation of
municipalities and barangays that does not comply with the criteria established in Section 461 of RA
7160, as mandated in Section 10, Article X of the Constitution, because the creation of such
municipalities and barangays does not involve the creation of legislative districts. We leave the resolution
of this issue to an appropriate case.

In summary, we rule that Section 19, Article VI of RA 9054, insofar as it grants to the ARMM Regional
Assembly the power to create provinces and cities, is void for being contrary to Section 5 of Article VI
and Section 20 of Article X of the Constitution, as well as Section 3 of the Ordinance appended to the
Constitution. Only Congress can create provinces and cities because the creation of provinces and cities
necessarily includes the creation of legislative districts, a power only Congress can exercise under Section
5, Article VI of the Constitution and Section 3 of the Ordinance appended to the Constitution. The
ARMM Regional Assembly cannot create a province without a legislative district because the
Constitution mandates that every province shall have a legislative district. Moreover, the ARMM
Regional Assembly cannot enact a law creating a national office like the office of a district representative
of Congress because the legislative powers of the ARMM Regional Assembly operate only within its
territorial jurisdiction as provided in Section 20, Article X of the Constitution. Thus, we rule that MMA
Act 201, enacted by the ARMM Regional Assembly and creating the Province of Shariff Kabunsuan, is
void.

Resolution No. 7902 Complies with the Constitution

Consequently, we hold that COMELEC Resolution No. 7902, preserving the geographic and
legislative district of the First District of Maguindanao with Cotabato City, is valid as it merely complies
with Section 5 of Article VI and Section 20 of Article X of the Constitution, as well as Section 1 of the
Ordinance appended to the Constitution.

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

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

JUANITO MARIANO, JR. et al., petitioners,

vs.
THE COMMISSION ON ELECTIONS, THE MUNICIPALITY OF MAKATI, HON. JEJOMAR
BINAY, THE MUNICIPAL TREASURER, AND SANGGUNIANG BAYAN OF
MAKATI, respondents.

G.R. No. 118627 March 7, 1995

JOHN R. OSMEA, petitioner,

vs.
THE COMMISSION ON ELECTIONS, THE MUNICIPALITY OF MAKATI, HON. JEJOMAR
BINAY, MUNICIPAL TREASURER, AND SANGGUNIANG BAYAN OF MAKATI, respondents.

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

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

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

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

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

(a) it increased the legislative district of Makati only by special law

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

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

(c) the addition of another legislative district in Makati is not in

accord with Section 5 (3), Article VI of the Constitution for as of
the latest survey (1990 census), the population of Makati stands at
only 450,000.

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

We find no merit in the petitions.

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

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

The foregoing provision shall be without prejudice to the resolution by the

appropriate agency or forum of existing boundary disputes or cases involving
questions of territorial jurisdiction between the City of Makati and the adjoining
local government units. (Emphasis supplied)

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

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

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

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

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

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

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

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

II

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

Sec. 51. Officials of the City of Makati. The represent elective officials of the
Municipality of Makati shall continue as the officials of the City of Makati and shall
exercise their powers and functions until such time that a new election is held
and the duly elected officials shall have already qualified and assume their
offices: Provided, The new city will acquire a new corporate existence. The
appointive officials and employees of the City shall likewise continues exercising
 their functions and duties and they shall be automatically absorbed by the city
government of the City of Makati.

They contend that this section collides with section 8, Article X and section 7, Article VI of the
Constitution which provide:

Sec. 8. The term of office of elective local officials, except barangay officials,
which shall be determined by law, shall be three years and no such official shall
serve for more than three consecutive terms. Voluntary renunciation of the office
for any length of time shall not be considered as an interruption in the continuity
of his service for the full term for which he was elected.

xxx xxx xxx

Sec. 7. The Members of the House of Representatives shall be elected for a term
of three years which shall begin, unless otherwise provided by law, at noon on
the thirtieth day of June next following their election.

No Member of the House of Representatives shall serve for more than three
consecutive terms. Voluntary renunciation of the office for any length of time shall
not be considered as an interruption in the continuity of his service for the full
term for which he was elected.

Petitioners stress that under these provisions, elective local officials, including Members of the
House of Representative, have a term of three (3) years and are prohibited from serving for
more than three (3) consecutive terms. They argue that by providing that the new city shall
acquire a new corporate existence, section 51 of R.A. No. 7854 restarts the term of the present
municipal elective officials of Makati and disregards the terms previously served by them. In
particular, petitioners point that section 51 favors the incumbent Makati Mayor, respondent
Jejomar Binay, who has already served for two (2) consecutive terms. They further argue that
should Mayor Binay decide to run and eventually win as city mayor in the coming elections, he
can still run for the same position in 1998 and seek another three-year consecutive term since
his previous three-year consecutive term as municipal mayor would not be counted. Thus,
petitioners conclude that said section 51 has been conveniently crafted to suit the political
ambitions of respondent Mayor Binay.

We cannot entertain this challenge to the constitutionality of section 51. The requirements
before a litigant can challenge the constitutionality of a law are well delineated. They are: 1)
there must be an actual case or controversy; (2) the question of constitutionality must be raised
by the proper party; (3) the constitutional question must be raised at the earliest possible
opportunity; and (4) the decision on the constitutional question must be necessary to the
determination of the case itself.5

Petitioners have far from complied with these requirements. The petition is premised on the
occurrence of many contingent events, i.e., that Mayor Binay will run again in this coming
mayoralty elections; that he would be re-elected in said elections; and that he would seek re-
election for the same position in the 1998 elections. Considering that these contingencies may
or may not happen, petitioners merely pose a hypothetical issue which has yet to ripen to an
actual case or controversy. Petitioners who are residents of Taguig (except Mariano) are not
also the proper parties to raise this abstract issue. Worse, they hoist this futuristic issue in a
petition for declaratory relief over which this Court has no jurisdiction.

III

Finally, petitioners in the two (2) cases at bench assail the constitutionality of section 52, Article
X of R.A. No. 7854. Section 52 of the Charter provides:

Sec. 52. Legislative Districts. Upon its conversion into a highly-urbanized city,
Makati shall thereafter have at least two (2) legislative districts that shall initially
correspond to the two (2) existing districts created under Section 3(a) of Republic
Act. No. 7166 as implemented by the Commission on Elections to commence at
the next national elections to be held after the effectivity of this Act. Henceforth,
barangays Magallanes, Dasmarias and Forbes shall be with the first district, in
lieu of Barangay Guadalupe-Viejo which shall form part of the second district.
(emphasis supplied)

They contend. that the addition of another legislative district in Makati is unconstitutional for: (1)
reapportionment6cannot made by a special law, (2) the addition of a legislative district is not
expressed in the title of the bill7 and (3) Makati's population, as per the 1990 census, stands at
only four hundred fifty thousand (450,000).

These issues have been laid to rest in the recent case of Tobias v. Abalos.8 In said case, we
ruled that reapportionment of legislative districts may be made through a special law, such as in
the charter of a new city. The Constitution9 clearly provides that Congress shall be composed of
not more than two hundred fifty (250) members, unless otherwise fixed by law. As thus worded,
the Constitution did not preclude Congress from increasing its membership by passing a law,
other than a general reapportionment of the law. This is its exactly what was done by Congress
in enacting R.A. No. 7854 and providing for an increase in Makati's legislative district. Moreover,
to hold that reapportionment can only be made through a general apportionment law, with a
review of all the legislative districts allotted to each local government unit nationwide, would
create an inequitable situation where a new city or province created by Congress will be denied
legislative representation for an indeterminate period of time. 10 The intolerable situations will
deprive the people of a new city or province a particle of their sovereignty. 11 Sovereignty cannot
admit of any kind of subtraction. It is indivisible. It must be forever whole or it is not sovereignty.

Petitioners cannot insist that the addition of another legislative district in Makati is not in accord
with section 5(3), Article VI 12 of the Constitution for as of the latest survey (1990 census), the
population of Makati stands at only four hundred fifty thousand (450,000). 13 Said section
provides, inter alia, that a city with a population of at least two hundred fifty thousand (250,000)
shall have at least one representative. Even granting that the population of Makati as of the
1990 census stood at four hundred fifty thousand (450,000), its legislative district may still be
increased since it has met the minimum population requirement of two hundred fifty thousand
(250,000). In fact, section 3 of the Ordinance appended to the Constitution provides that a city
whose population has increased to more than two hundred fifty thousand (250,000) shall be
entitled to at least one congressional representative. 14

Finally, we do not find merit in petitioners' contention that the creation of an additional legislative
district in Makati should have been expressly stated in the title of the bill. In the same case
of Tobias v. Abalos, op cit., we reiterated the policy of the Court favoring a liberal construction of
the "one title-one subject" rule so as not to impede legislation. To be sure, with Constitution
does not command that the title of a law should exactly mirror, fully index, or completely
catalogue all its details. Hence, we ruled that "it should be sufficient compliance if the title
expresses the general subject and all the provisions are germane to such general subject."

WHEREFORE, the petitions are hereby DISMISSED for lack of merit No costs.

SO ORDERED.

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 Batasang-Pambansa to enact the assailed law is beyond question. They
claim that Batas Pambansa Big. 885 does not infringe the Constitution because the requisites of
the Local Government Code have been complied with. Furthermore, they submit that this case
has now become moot and academic with the proclamation of the new Province of Negros del
Norte.

Respondents argue that the remaining cities and municipalities of the Province of Negros
Occidental not included in the area of the new Province of Negros del Norte, de not fall within
the meaning and scope of the term "unit or units affected", as referred to in Section 3 of Art. XI
of our Constitution. On this reasoning, respondents maintain that Batas Pambansa Blg. 885
does not violate the Constitution, invoking and citing 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:

xxx xxx xxx

 This is to certify that the following cities and municipalities of Negros Occidental
have the land area as indicated hereunder based on the Special Report No. 3,
Philippines 1980, Population, Land Area and Density: 1970, 1975 and 1980 by
the National Census and Statistics Office, Manila.

Land Area

(Sq. Km.)

1. Silay City ...................................................................214.8

2. E.B. Magalona............................................................113.3

3. Victorias.....................................................................133.9

4. Manapla......................................................................112.9

5. Cadiz City ..................................................................516.5

6. Sagay .........................................................................389.6

7. Escalante ....................................................................124.0

8. Toboso.......................................................................123.4

9. Calatrava.....................................................................504.5

10. San Carlos City...........................................................451.3

11. Don Salvador Benedicto.................................... (not available)

This certification is issued upon the request of Dr. Patricio Y. Tan for whatever
purpose it may serve him.

(SGD.) JULIAN L. RAMIREZ

Provincial Treasurer (Exh. "C" of Petition, Rollo, p. 90).

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 self-serving phrase
that the new province constitutes the area affected. Such additional statement serves no useful
purpose for the same is misleading, erroneous and far from truth. The remaining portion of the
parent province is as much an area affected. The substantial alteration of the boundaries of the
parent province, not to mention the other adverse economic effects it might suffer, eloquently
argue the points raised by the petitioners.

Petitioners have averred without contradiction that after the creation of Negros del Norte, the
province of Negros Occidental would be deprived of the long established Cities of Silay, Cadiz,
and San Carlos, as well as the municipality of Victorias. No controversion has been made
regarding petitioners' assertion that the areas of the Province of Negros Occidental will be
diminished by about 285,656 hectares and it will lose seven of the fifteen sugar mills which
contribute to the economy of the whole province. In the language of petitioners, "to create
Negros del Norte, the existing territory and political subdivision known as Negros Occidental has
to be partitioned and dismembered. What was involved was no 'birth' but "amputation." We
agree with the petitioners that in the case of Negros what was involved was a division, a
separation; and consequently, as Sec. 3 of Article XI of the Constitution anticipates, a
substantial alteration of boundary.

As contended by petitioners,

Indeed, the terms 'created', 'divided', 'merged', 'abolished' as used in the

constitutional provision do not contemplate distinct situation isolated from the
mutually exclusive to each other. A Province maybe created where an existing
province is divided or two provinces merged. Such cases necessarily will involve
existing unit or units abolished and definitely the boundary being substantially
altered.

It would thus be inaccurate to state that where an existing political unit is divided
or its boundary substantially altered, as the Constitution provides, only some and
not all the voters in the whole unit which suffers dismemberment or substantial
alteration of its boundary are affected. Rather, the contrary is true.

It is also Our considered view that even hypothetically assuming that the merits of this case can
depend on the mere discretion that this Court may exercise, nevertheless, it is the petitioners'
case that deserve to be favored.

It is now time for this Court to set aside the equivocations and the indecisive pronouncements in
the adverted case of Paredes vs. the Honorable Executive Secretary, et al. (supra). For the
reasons already here express, We now state that the ruling in the two mentioned cases
sanctioning the exclusion of the voters belonging to an existing political unit from which the new
political unit will be derived, from participating in the plebiscite conducted for the purpose of
determining the formation of another new political unit, is hereby abandoned.

In their supplemental petition, dated January 4, 1986, it is prayed for by petitioners that a writ of
mandamus be issued, directing the respondent Commission on Elections, to schedule the
holding of another plebiscite at which all the qualified voters of the entire province of Negros
Occidental as now existing shall participate and that this Court make a pronouncement that the
plebiscite held on January 3, 1986 has no legal effect for being a patent nullity.

The Court is prepared to declare the said plebiscite held on January 3, 1986 as null and void
and violative of the provisions of Sec. 3, Article XI of the Constitution. The Court is not, however,
disposed to direct the conduct of a new plebiscite, because We find no legal basis to do so.
With constitutional infirmity attaching to the subject Batas Pambansa Big. 885 and also because
the creation of the new province of Negros del Norte is not in accordance with the criteria
established in the Local Government Code, the factual and legal basis for the creation of such
new province which should justify the holding of another plebiscite does not exist.

Whatever claim it has to validity and whatever recognition has been gained by the new province
of Negros del Norte because of the appointment of the officials thereof, must now be erased.
That Negros del Norte is but a legal fiction should be announced. Its existence should be put to
an end as quickly as possible, if only to settle the complications currently attending to its
creation. As has been manifested, the parent province of Negros del Norte has been impleaded
as the defendant in a suit filed by the new Province of Negros del Norte, before the Regional
Trial Court of Negros (del Norte), docketed as Civil Case No. 169-C, for the immediate
allocation, distribution and transfer of funds by the parent province to the new province, in an
amount claimed to be at least P10,000,000.00.

The final nail that puts to rest whatever pretension there is to the legality of the province of
Negros del Norte is the significant fact that this created province does not even satisfy the area
requirement prescribed in Section 197 of the Local Government Code, as earlier discussed.

It is of course claimed by the respondents in their Comment to the exhibits submitted by the
petitioners (Exhs. C and D, Rollo, pp. 19 and 91), that the new province has a territory of
4,019.95 square kilometers, more or less. This assertion is made to negate the proofs
submitted, disclosing that the land area of the new province cannot be more than 3,500 square
kilometers because its land area would, at most, be only about 2,856 square kilometers, taking
into account government statistics relative to the total area of the cities and municipalities
constituting Negros del Norte. Respondents insist that when Section 197 of the Local
Government Code speaks of the territory of the province to be created and requires that such
territory be at least 3,500 square kilometers, what is contemplated is not only the land area but
also the land and water over which the said province has jurisdiction and control. It is even the
submission of the respondents that in this regard the marginal sea within the three mile limit
should be considered in determining the extent of the territory of the new province. Such an
interpretation is strained, incorrect, and fallacious.

The last sentence of the first paragraph of Section 197 is most revealing. As so stated therein
the "territory need not be contiguous if it comprises two or more islands." The use of the
word territory in this particular provision of the Local Government Code and in the very last
sentence thereof, clearly reflects that "territory" as therein used, has reference only to the mass
of land area and excludes the waters over which the political unit exercises control.

Said sentence states that the "territory need not be contiguous." Contiguous means (a) in
physical contact; (b) touching along all or most of one side; (c) near, text, or adjacent (Webster's
New World Dictionary, 1972 Ed., p. 307). "Contiguous", when employed as an adjective, as in
the above sentence, is only used when it describes physical contact, or a touching of sides of
two solid masses of matter. The meaning of particular terms in a statute may be ascertained by
reference to words associated with or related to them in the statute (Animal Rescue League vs.
Assessors, 138 A.L.R. p. 110). Therefore, in the context of the sentence above, what need not
be "contiguous" is the "territory" the physical mass of land area. There would arise no need for
the legislators to use the word contiguous if they had intended that the term "territory" embrace
not only land area but also territorial waters. It can be safely concluded that the word territory in
the first paragraph of Section 197 is meant to be synonymous with "land area" only. The words
and phrases used in a statute should be given the meaning intended by the legislature (82
C.J.S., p. 636). The sense in which the words are used furnished the rule of construction (In re
Winton Lumber Co., 63 p. 2d., p. 664).

The distinction between "territory" and "land area" which respondents make is an artificial or
strained construction of the disputed provision whereby the words of the statute are arrested
from their plain and obvious meaning and made to bear an entirely different meaning to justify
an absurd or unjust result. The plain meaning in the language in a statute is the safest guide to
follow in construing the statute. A construction based on a forced or artificial meaning of its
words and out of harmony of the statutory scheme is not to be favored (Helvering vs. Hutchings,
85 L. Ed., p. 909).

It would be rather preposterous to maintain that a province with a small land area but which has
a long, narrow, extended coast line, (such as La Union province) can be said to have a larger
territory than a land-locked province (such as Ifugao or Benguet) whose land area manifestly
exceeds the province first mentioned.

Allegations have been made that the enactment of the questioned state was marred by "dirty
tricks", in the introduction and passing of Parliamentary Bill No. 3644 "in secret haste" pursuant
to sinister designs to achieve "pure and simple gerrymandering; "that recent happenings more
than amply demonstrate that far from guaranteeing its autonomy it (Negros del Norte) has
become the fiefdom of a local strongman" (Rollo, p. 43; emphasis supplied).

It is not for this Court to affirm or reject such matters not only because the merits of this case
can be resolved without need of ascertaining the real motives and wisdom in the making of the
questioned law. No proper challenge on those grounds can also be made by petitioners in this
proceeding. Neither may this Court venture to guess the motives or wisdom in the exercise of
legislative powers. Repudiation of improper or unwise actions taken by tools of a political
machinery rests ultimately, as recent events have shown, on the electorate and the power of a
vigilant people.

Petitioners herein deserve and should receive the gratitude of the people of the Province of
Negros Occidental and even by our Nation. Commendable is the patriotism displayed by them
in daring to institute this case in order to preserve the continued existence of their historic
province. They were inspired undoubtedly by their faithful commitment to our Constitution which
they wish to be respected and obeyed. Despite the setbacks and the hardships which
petitioners aver confronted them, they valiantly and unfalteringly pursued a worthy cause. A
happy destiny for our Nation is assured as long as among our people there would be exemplary
citizens such as the petitioners herein.

WHEREFORE, Batas Pambansa Blg. 885 is hereby declared unconstitutional. The

proclamation of the new province of Negros del Norte, as well as the appointment of the officials
thereof are also declared null and void.

SO ORDERED.
G.R. No. 89651 November 10, 1989

DATU FIRDAUSI I.Y. ABBAS, DATU BLO UMPAR ADIONG, DATU MACALIMPOWAC
DELANGALEN, CELSO PALMA, ALI MONTANA BABAO, JULMUNIR JANNARAL, RASHID
SABER, and DATU JAMAL ASHLEY ABBAS, representing the other taxpayers of
Mindanao, petitioners,
vs.
COMMISSION ON ELECTIONS, and HONORABLE GUILLERMO C. CARAGUE, DEPARTMENT
SECRETARY OF BUDGET AND MANAGEMENT, respondents.

G.R. No. 89965 November 10, 1989

ATTY. ABDULLAH D. MAMA-O, petitioner,

vs.
HON. GUILLERMO CARAGUE, in his capacity as the Secretary of the Budget, and the
COMMISSION ON ELECTIONS, respondents.

Abbas, Abbas, Amora, Alejandro-Abbas & Associates for petitioners in G.R. Nos. 89651 and 89965.

Abdullah D. Mama-o for and in his own behalf in 89965.

CORTES, J.:
The present controversy relates to the plebiscite in thirteen (13) provinces and nine (9) cities in
Mindanao and Palawan, 1 scheduled for November 19, 1989, in implementation of Republic Act No.
6734, entitled "An Act Providing for an Organic Act for the Autonomous Region in Muslim
Mindanao."

These consolidated petitions pray that the Court: (1) enjoin the Commission on Elections
(COMELEC) from conducting the plebiscite and the Secretary of Budget and Management from
releasing funds to the COMELEC for that purpose; and (2) declare R.A. No. 6734, or parts thereof,
unconstitutional .

After a consolidated comment was filed by Solicitor General for the respondents, which the Court
considered as the answer, the case was deemed submitted for decision, the issues having been
joined. Subsequently, petitioner Mama-o filed a "Manifestation with Motion for Leave to File Reply on
Respondents' Comment and to Open Oral Arguments," which the Court noted.

The arguments against R.A. 6734 raised by petitioners may generally be categorized into either of
the following:

(a) that R.A. 6734, or parts thereof, violates the Constitution, and

(b) that certain provisions of R.A. No. 6734 conflict with the Tripoli Agreement.

The Tripoli Agreement, more specifically, the Agreement Between the government of the Republic of
the Philippines of the Philippines and Moro National Liberation Front with the Participation of the
Quadripartie Ministerial Commission Members of the Islamic Conference and the Secretary General
of the Organization of Islamic Conference" took effect on December 23, 1976. It provided for "[t]he
establishment of Autonomy in the southern Philippines within the realm of the sovereignty and
territorial integrity of the Republic of the Philippines" and enumerated the thirteen (13) provinces
comprising the "areas of autonomy." 2

In 1987, a new Constitution was ratified, which the for the first time provided for regional autonomy,
Article X, section 15 of the charter provides that "[t]here shall be created autonomous regions in
Muslim Mindanao and in the Cordilleras consisting of provinces, cities, municipalities, and
geographical areas sharing common and distinctive historical and cultural heritage, economic and
social structures, and other relevant characteristics within the framework of this Constitution and the
national sovereignty as well as territorial integrity of the Republic of the Philippines."

To effectuate this mandate, the Constitution further provides:

Sec. 16. The President shall exercise general supervision over autonomous regions
to ensure that the laws are faithfully executed.

Sec. 17. All powers, functions, and responsibilities not granted by this Constitution or
by law to the autonomous regions shall be vested in the National Government.

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

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

Sec. 19 The first Congress elected under this Constitution shall, within eighteen
months from the time of organization of both Houses, pass the organic acts for the
autonomous regions in Muslim Mindanao and the Cordilleras.

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

(1) Administrative organization;

(2) Creation of sources of revenues;

(3) Ancestral domain and natural resources;

(4) Personal, family, and property relations;

(5) Regional urban and rural planning development;

(6) Economic, social and tourism development;

(7) Educational policies;

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

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

Sec. 21. The preservation of peace and order within the regions shall be the
responsibility of the local police agencies which shall be organized, maintained,
supervised, and utilized in accordance with applicable laws. The defense and
security of the region shall be the responsibility of the National Government.

Pursuant to the constitutional mandate, R.A. No. 6734 was enacted and signed into law on August 1,
1989.

1. The Court shall dispose first of the second category of arguments raised by petitioners, i.e. that
certain provisions of R.A. No. 6734 conflict with the provisions of the Tripoli Agreement.

Petitioners premise their arguments on the assumption that the Tripoli Agreement is part of the law
of the land, being a binding international agreement . The Solicitor General asserts that the Tripoli
Agreement is neither a binding treaty, not having been entered into by the Republic of the
Philippines with a sovereign state and ratified according to the provisions of the 1973 or 1987
Constitutions, nor a binding international agreement.
We find it neither necessary nor determinative of the case to rule on the nature of the Tripoli
Agreement and its binding effect on the Philippine Government whether under public international or
internal Philippine law. In the first place, it is now the Constitution itself that provides for the creation
of an autonomous region in Muslim Mindanao. The standard for any inquiry into the validity of R.A.
No. 6734 would therefore be what is so provided in the Constitution. Thus, any conflict between the
provisions of R.A. No. 6734 and the provisions of the Tripoli Agreement will not have the effect of
enjoining the implementation of the Organic Act. Assuming for the sake of argument that the Tripoli
Agreement is a binding treaty or international agreement, it would then constitute part of the law of
the land. But as internal law it would not be superior to R.A. No. 6734, an enactment of the Congress
of the Philippines, rather it would be in the same class as the latter [SALONGA, PUBLIC
INTERNATIONAL LAW 320 (4th ed., 1974), citing Head Money Cases, 112 U.S. 580 (1884) and
Foster v. Nelson, 2 Pet. 253 (1829)]. Thus, if at all, R.A. No. 6734 would be amendatory of the Tripoli
Agreement, being a subsequent law. Only a determination by this Court that R.A. No. 6734
contravened the Constitution would result in the granting of the reliefs sought. 3

2. The Court shall therefore only pass upon the constitutional questions which have been raised by
petitioners.

Petitioner Abbas argues that R.A. No. 6734 unconditionally creates an autonomous region in
Mindanao, contrary to the aforequoted provisions of the Constitution on the autonomous region
which make the creation of such region dependent upon the outcome of the plebiscite.

In support of his argument, petitioner cites Article II, section 1(1) of R.A. No. 6734 which declares
that "[t]here is hereby created the Autonomous Region in Muslim Mindanao, to be composed of
provinces and cities voting favorably in the plebiscite called for the purpose, in accordance with
Section 18, Article X of the Constitution." Petitioner contends that the tenor of the above provision
makes the creation of an autonomous region absolute, such that even if only two provinces vote in
favor of autonomy, an autonomous region would still be created composed of the two provinces
where the favorable votes were obtained.

The matter of the creation of the autonomous region and its composition needs to be clarified.

Firs, the questioned provision itself in R.A. No. 6734 refers to Section 18, Article X of the
Constitution which sets forth the conditions necessary for the creation of the autonomous region.
The reference to the constitutional provision cannot be glossed over for it clearly indicates that the
creation of the autonomous region shall take place only in accord with the constitutional
requirements. Second, there is a specific provision in the Transitory Provisions (Article XIX) of the
Organic Act, which incorporates substantially the same requirements embodied in the Constitution
and fills in the details, thus:

SEC. 13. The creation of the Autonomous Region in Muslim Mindanao shall take
effect when approved by a majority of the votes cast by the constituent units provided
in paragraph (2) of Sec. 1 of Article II of this Act in a plebiscite which shall be held
not earlier than ninety (90) days or later than one hundred twenty (120) days after the
approval of this Act: Provided, That only the provinces and cities voting favorably in
such plebiscite shall be included in the Autonomous Region in Muslim Mindanao.
The provinces and cities which in the plebiscite do not vote for inclusion in the
Autonomous Region shall remain the existing administrative determination, merge
the existing regions.

Thus, under the Constitution and R.A. No 6734, the creation of the autonomous region shall take
effect only when approved by a majority of the votes cast by the constituent units in a plebiscite, and
only those provinces and cities where a majority vote in favor of the Organic Act shall be included in
the autonomous region. The provinces and cities wherein such a majority is not attained shall not be
included in the autonomous region. It may be that even if an autonomous region is created, not all of
the thirteen (13) provinces and nine (9) cities mentioned in Article II, section 1 (2) of R.A. No. 6734
shall be included therein. The single plebiscite contemplated by the Constitution and R.A. No. 6734
will therefore be determinative of (1) whether there shall be an autonomous region in Muslim
Mindanao and (2) which provinces and cities, among those enumerated in R.A. No. 6734, shall
compromise it. [See III RECORD OF THE CONSTITUTIONAL COMMISSION 482-492 (1986)].

As provided in the Constitution, the creation of the Autonomous region in Muslim Mindanao is made
effective upon the approval "by majority of the votes cast by the constituent units in a plebiscite
called for the purpose" [Art. X, sec. 18]. The question has been raised as to what this majority
means. Does it refer to a majority of the total votes cast in the plebiscite in all the constituent units,
or a majority in each of the constituent units, or both?

We need not go beyond the Constitution to resolve this question.

If the framers of the Constitution intended to require approval by a majority of all the votes cast in the
plebiscite they would have so indicated. Thus, in Article XVIII, section 27, it is provided that "[t]his
Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a
plebiscite held for the purpose ... Comparing this with the provision on the creation of the
autonomous region, which reads:

The creation of the autonomous region shall be effective when approved by majority
of the votes cast by the constituent units in a plebiscite called for the purpose,
provided that only provinces, cities and geographic areas voting favorably in such
plebiscite shall be included in the autonomous region. [Art. X, sec, 18, para, 2].

it will readily be seen that the creation of the autonomous region is made to depend, not on the total
majority vote in the plebiscite, but on the will of the majority in each of the constituent units and the
proviso underscores this. for if the intention of the framers of the Constitution was to get the majority
of the totality of the votes cast, they could have simply adopted the same phraseology as that used
for the ratification of the Constitution, i.e. "the creation of the autonomous region shall be effective
when approved by a majority of the votes cast in a plebiscite called for the purpose."

It is thus clear that what is required by the Constitution is a simple majority of votes approving the
organic Act in individual constituent units and not a double majority of the votes in all constituent
units put together, as well as in the individual constituent units.

More importantly, because of its categorical language, this is also the sense in which the vote
requirement in the plebiscite provided under Article X, section 18 must have been understood by the
people when they ratified the Constitution.

Invoking the earlier cited constitutional provisions, petitioner Mama-o, on the other hand, maintains
that only those areas which, to his view, share common and distinctive historical and cultural
heritage, economic and social structures, and other relevant characteristics should be properly
included within the coverage of the autonomous region. He insists that R.A. No. 6734 is
unconstitutional because only the provinces of Basilan, Sulu, Tawi-Tawi, Lanao del Sur, Lanao del
Norte and Maguindanao and the cities of Marawi and Cotabato, and not all of the thirteen (13)
provinces and nine (9) cities included in the Organic Act, possess such concurrence in historical and
cultural heritage and other relevant characteristics. By including areas which do not strictly share the
same characteristics. By including areas which do not strictly share the same characteristic as the
others, petitioner claims that Congress has expanded the scope of the autonomous region which the
constitution itself has prescribed to be limited.

Petitioner's argument is not tenable. The Constitution lays down the standards by which Congress
shall determine which areas should constitute the autonomous region. Guided by these
constitutional criteria, the ascertainment by Congress of the areas that share common attributes is
within the exclusive realm of the legislature's discretion. Any review of this ascertainment would have
to go into the wisdom of the law. This the Court cannot do without doing violence to the separation of
governmental powers. [Angara v. Electoral Commission, 63 Phil 139 (1936); Morfe v. Mutuc, G.R.
No. L-20387, January 31, 1968, 22 SCRA 424].

After assailing the inclusion of non-Muslim areas in the Organic Act for lack of basis, petitioner
Mama-o would then adopt the extreme view that other non-Muslim areas in Mindanao should
likewise be covered. He argues that since the Organic Act covers several non-Muslim areas, its
scope should be further broadened to include the rest of the non-Muslim areas in Mindanao in order
for the other non-Muslim areas denies said areas equal protection of the law, and therefore is
violative of the Constitution.

Petitioner's contention runs counter to the very same constitutional provision he had earlier invoked.
Any determination by Congress of what areas in Mindanao should compromise the autonomous
region, taking into account shared historical and cultural heritage, economic and social structures,
and other relevant characteristics, would necessarily carry with it the exclusion of other areas. As
earlier stated, such determination by Congress of which areas should be covered by the organic act
for the autonomous region constitutes a recognized legislative prerogative, whose wisdom may not
be inquired into by this Court.

Moreover, equal protection permits of reasonable classification [People v. Vera, 65 Phil. 56 (1963);
Laurel v. Misa, 76 Phil. 372 (1946); J.M. Tuason and Co. v. Land tenure Administration, G.R. No. L-
21064, February 18, 1970, 31 SCRA 413]. In Dumlao v. Commission on Elections G.R. No. 52245,
January 22, 1980, 95 SCRA 392], the Court ruled that once class may be treated differently from
another where the groupings are based on reasonable and real distinctions. The guarantee of equal
protection is thus not infringed in this case, the classification having been made by Congress on the
basis of substantial distinctions as set forth by the Constitution itself.

Both petitions also question the validity of R.A. No. 6734 on the ground that it violates the
constitutional guarantee on free exercise of religion [Art. III, sec. 5]. The objection centers on a
provision in the Organic Act which mandates that should there be any conflict between the Muslim
Code [P.D. No. 1083] and the Tribal Code (still be enacted) on the one had, and the national law on
the other hand, the Shari'ah courts created under the same Act should apply national law.
Petitioners maintain that the islamic law (Shari'ah) is derived from the Koran, which makes it part of
divine law. Thus it may not be subjected to any "man-made" national law. Petitioner Abbas supports
this objection by enumerating possible instances of conflict between provisions of the Muslim Code
and national law, wherein an application of national law might be offensive to a Muslim's religious
convictions.

As enshrined in the Constitution, judicial power includes the duty to settle actual controversies
involving rights which are legally demandable and enforceable. [Art. VIII, Sec. 11. As a condition
precedent for the power to be exercised, an actual controversy between litigants must first exist
[Angara v. Electoral Commission, supra; Tan v. Macapagal, G.R. No. L-34161, February 29, 1972,
43 SCRA 677]. In the present case, no actual controversy between real litigants exists. There are no
conflicting claims involving the application of national law resulting in an alleged violation of religious
freedom. This being so, the Court in this case may not be called upon to resolve what is merely a
perceived potential conflict between the provisions the Muslim Code and national law.

Petitioners also impugn the constitutionality of Article XIX, section 13 of R.A. No. 6734 which, among
others, states:

. . . Provided, That only the provinces and cities voting favorably in such plebiscite
shall be included in the Autonomous Region in Muslim Mindanao. The provinces and
cities which in the plebiscite do not vote for inclusion in the Autonomous Region shall
remain in the existing administrative regions: Provided, however, that the President
may, by administrative determination, merge the existing regions.

According to petitioners, said provision grants the President the power to merge regions, a power
which is not conferred by the Constitution upon the President. That the President may choose to
merge existing regions pursuant to the Organic Act is challenged as being in conflict with Article X,
Section 10 of the Constitution which 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 units directly affected.

It must be pointed out that what is referred to in R.A. No. 6734 is the merger of administrative
regions, i.e. Regions I to XII and the National Capital Region, which are mere groupings of
contiguous provinces for administrative purposes [Integrated Reorganization Plan (1972), which was
made as part of the law of the land by Pres. dec. No. 1, Pres. Dec. No. 742]. Administrative regions
are not territorial and political subdivisions like provinces, cities, municipalities and barangays [see
Art. X, sec. 1 of the Constitution]. While the power to merge administrative regions is not expressly
provided for in the Constitution, it is a power which has traditionally been lodged with the President
to facilitate the exercise of the power of general supervision over local governments [see Art. X, sec.
4 of the Constitution]. There is no conflict between the power of the President to merge
administrative regions with the constitutional provision requiring a plebiscite in the merger of local
government units because the requirement of a plebiscite in a merger expressly applies only to
provinces, cities, municipalities or barangays, not to administrative regions.

Petitioners likewise question the validity of provisions in the Organic Act which create an Oversight
Committee to supervise the transfer to the autonomous region of the powers, appropriations, and
properties vested upon the regional government by the organic Act [Art. XIX, Secs. 3 and 4]. Said
provisions mandate that the transfer of certain national government offices and their properties to the
regional government shall be made pursuant to a schedule prescribed by the Oversight Committee,
and that such transfer should be accomplished within six (6) years from the organization of the
regional government.

It is asserted by petitioners that such provisions are unconstitutional because while the Constitution
states that the creation of the autonomous region shall take effect upon approval in a plebiscite, the
requirement of organizing an Oversight committee tasked with supervising the transfer of powers
and properties to the regional government would in effect delay the creation of the autonomous
region.

Under the Constitution, the creation of the autonomous region hinges only on the result of the
plebiscite. if the Organic Act is approved by majority of the votes cast by constituent units in the
scheduled plebiscite, the creation of the autonomous region immediately takes effect delay the
creation of the autonomous region.

Under the constitution, the creation of the autonomous region hinges only on the result of the
plebiscite. if the Organic Act is approved by majority of the votes cast by constituent units in the
scheduled plebiscite, the creation of the autonomous region immediately takes effect. The
questioned provisions in R.A. No. 6734 requiring an oversight Committee to supervise the transfer
do not provide for a different date of effectivity. Much less would the organization of the Oversight
Committee cause an impediment to the operation of the Organic Act, for such is evidently aimed at
effecting a smooth transition period for the regional government. The constitutional objection on this
point thus cannot be sustained as there is no bases therefor.

Every law has in its favor the presumption of constitutionality [Yu Cong Eng v. Trinidad, 47 Phil. 387
(1925); Salas v. Jarencio, G.R. No. L-29788, August 30, 1979, 46 SCRA 734; Morfe v.
Mutuc, supra; Peralta v. COMELEC, G.R. No. L-47771, March 11, 1978, 82 SCRA 30]. Those who
petition this Court to declare a law, or parts thereof, unconstitutional must clearly establish the basis
for such a declaration. otherwise, their petition must fail. Based on the grounds raised by petitioners
to challenge the constitutionality of R.A. No. 6734, the Court finds that petitioners have failed to
overcome the presumption. The dismissal of these two petitions is, therefore, inevitable.

WHEREFORE, the petitions are DISMISSED for lack of merit.

 EN BANC
[G.R. No. 93054 : December 4, 1990.]
192 SCRA 100
Cordillera Regional Assembly Member ALEXANDER P. ORDILLO, (Banaue),
Ifugao Provincial Board Member CORAZON MONTINIG, (Mayoyao), Former
Vice-Mayor MARTIN UDAN (Banaue), Municipal Councilors MARTIN GANO,
(Lagawe), and TEODORO HEWE, (Hingyon), Barangay Councilman PEDRO
W. DULAG (Lamut); Aguinaldo residents SANDY B. CHANGIWAN, and
DONATO TIMAGO; Lamut resident REY ANTONIO; Kiangan residents
ORLANDO PUGUON, and REYNAND DULDULAO; Lagawe residents TOMAS
KIMAYONG, GREGORIO DANGO, GEORGE B. BAYWONG, and VICENTE
LUNAG; Hingyon residents PABLO M. DULNUAN and CONSTANCIO GANO;
Mayoyao residents PEDRO M. BAOANG, LEONARDO IGADNA, and MAXIMO
IGADNA; and Banaue residents PUMA-A CULHI, LATAYON BUTTIG, MIGUEL
PUMELBAN, ANDRES ORDILLO, FEDERICO MARIANO, SANDY BINOMNGA,
GABRIEL LIMMANG, ROMEO TONGALI, RUBEN BAHATAN, MHOMDY
GABRIEL, and NADRES GHAMANG, Petitioners, vs. THE COMMISSION ON
ELECTIONS; The Honorable FRANKLIN M. DRILON, Secretary of Justice;
Hon. CATALINO MACARAIG, Executive Secretary; The Cabinet Officer for
Regional Development; Hon. GUILLERMO CARAGUE, Secretary of Budget
and Management; and Hon. ROSALINA S. CAJUCOM, OIC, National
Treasurer, Respondents.

DECISION

GUTIERREZ, JR., J.:

The question raised in this petition is whether or not the province of Ifugao, being
the only province which voted favorably for the creation of the Cordillera
Autonomous Region can, alone, legally and validly constitute such Region.
The antecedent facts that gave rise to this petition are as follows:
On January 30, 1990, the people of the provinces of Benguet, Mountain Province,
Ifugao, Abra and Kalinga-Apayao and the city of Baguio cast their votes in a
plebiscite held pursuant to Republic Act No. 6766 entitled "An Act Providing for an
Organic Act for the Cordillera Autonomous Region."
The official Commission on Elections (COMELEC) results of the plebiscite showed
that the creation of the Region was approved by a majority of 5,889 votes in only
the Ifugao Province and was overwhelmingly rejected by 148,676 votes in the rest
of the provinces and city above-mentioned.
Consequently, the COMELEC, on February 14, 1990, issued Resolution No. 2259
stating that the Organic Act for the Region has been approved and/or ratified by
majority of the votes cast only in the province of Ifugao. On the same date, the
Secretary of Justice issued a memorandum for the President reiterating the
COMELEC resolution and provided:
". . . [A]nd considering the proviso in Sec. 13(A) that only the provinces and city
voting favorably shall be included in the CAR, the province of Ifugao being the only
province which voted favorably then, alone, legally and validly constitutes the
CAR." (Rollo, p. 7)
As a result of this, on March 8, 1990, Congress enacted Republic Act No. 6861
setting the elections in the Cordillera Autonomous Region of Ifugao on the first
Monday of March 1991.: nad
Even before the issuance of the COMELEC resolution, the Executive Secretary on
February 5, 1990 issued a Memorandum granting authority to wind up the affairs of
the Cordillera Executive Board and the Cordillera Regional Assembly created under
Executive Order No. 220.
On March 9, 1990, the petitioner filed a petition with COMELEC to declare the non-
ratification of the Organic Act for the Region. The COMELEC merely noted said
petition.
On March 30, 1990, the President issued Administrative Order No. 160 declaring
among others that the Cordillera Executive Board and Cordillera Regional Assembly
and all the offices created under Executive Order No. 220 were abolished in view of
the ratification of the Organic Act.- nad
The petitioners maintain that there can be no valid Cordillera Autonomous Region in
only one province as the Constitution and Republic Act No. 6766 require that the
said Region be composed of more than one constituent unit.
The petitioners, then, pray that the Court: (1) declare null and void COMELEC
resolution No. 2259, the memorandum of the Secretary of Justice, the
memorandum of the Executive Secretary, Administrative Order No. 160, and
Republic Act No. 6861 and prohibit and restrain the respondents from implementing
the same and spending public funds for the purpose and (2) declare Executive
Order No. 220 constituting the Cordillera Executive Board and the Cordillera
Regional Assembly and other offices to be still in force and effect until another
organic law for the Autonomous Region shall have been enacted by Congress and
the same is duly ratified by the voters in the constituent units. We treat the
Comments of the respondents as an answer and decide the case.
This petition is meritorious.
The sole province of Ifugao cannot validly constitute the Cordillera Autonomous
Region.
It is explicit in Article X, Section 15 of the 1987 Constitution that:
"Section 15. There shall be created autonomous regions in Muslim Mindanao
and in the Cordillera consisting of provinces, cities, municipalities and
geographical areas sharing common and distinctive historical and cultural
heritage, economic and social structures, and other relevant characteristics
within the framework of this Constitution and the national sovereignty as well
as territorial integrity of the Republic of the Philippines." (Emphasis Supplied)
The keywords provinces, cities, municipalities and geographical areas connote
that "region" is to be made up of more than one constituent unit. The term "region"
used in its ordinary sense means two or more provinces. This is supported by the
fact that the thirteen (13) regions into which the Philippines is divided for
administrative purposes are groupings of contiguous provinces. (Integrated
Reorganization Plan (1972), which was made as part of the law of the land by P.D.
No. 1; P.D. No. 742) Ifugao is a province by itself. To become part of a region, it
must join other provinces, cities, municipalities, and geographical areas. It joins
other units because of their common and distinctive historical and cultural heritage,
economic and social structures and other relevant characteristics. The
Constitutional requirements are not present in this case.- nad
The well-established rule in statutory construction that the language of the
Constitution, as much as possible should be understood in the sense it has in
common use and that the words used in constitutional provisions are to be given
their ordinary meaning except where technical terms are employed, must then, be
applied in this case. (See Baranda v. Gustilo, 165 SCRA 757, 770, [1988]; J.M.
Tuason & Co., Inc. v. Land Tenure Administration, 31 SCRA 413, 422-423 [1970]).
Aside from the 1987 Constitution, a reading of the provisions of Republic Act No.
6766 strengthens the petitioner's position that the Region cannot be constituted
from only one province.
Article III, Sections 1 and 2 of the Statute provide that the Cordillera Autonomous
Region is to be administered by the Cordillera government consisting of the
Regional Government and local government units. It further provides that:
"SECTION 2. The Regional Government shall exercise powers and functions
necessary for the proper governance and development of all provinces, cities,
municipalities, and barangay or ili within the Autonomous Region . . ."
From these sections, it can be gleaned that Congress never intended that a single
province may constitute the autonomous region. Otherwise, we would be faced with
the absurd situation of having two sets of officials, a set of provincial officials and
another set of regional officials exercising their executive and legislative powers
over exactly the same small area.
Article V, Sections 1 and 4 of Republic Act 6766 vest the legislative power in the
Cordillera Assembly whose members shall be elected from regional assembly
districts apportioned among provinces and the cities composing the Autonomous
Region. chanrobles virtual law library
If we follow the respondent's position, the members of such Cordillera Assembly
shall then be elected only from the province of Ifugao creating an awkward
predicament of having two legislative bodies the Cordillera Assembly and the
Sangguniang Panlalawigan exercising their legislative powers over the province
of Ifugao. And since Ifugao is one of the smallest provinces in the Philippines,
population-wise, it would have too many government officials for so few people.:-
cralaw
Article XII, Section 10 of the law creates a Regional Planning and Development
Board composed of the Cordillera Governor, all the provincial governors and city
mayors or their representatives, two members of the Cordillera Assembly, and
members representing the private sector. The Board has a counterpart in the
provincial level called the Provincial Planning and Development Coordinator. The
Board's functions (Article XII, Section 10, par. 2, Republic Act No. 6766) are almost
similar to those of the Provincial Coordinator's (Title Four, Chapter 3, Article 10,
Section 220 (4), Batas Pambansa Blg. 337 Local Government Code). If it takes
only one person in the provincial level to perform such functions while on the other
hand it takes an entire Board to perform almost the same tasks in the regional
level, it could only mean that a larger area must be covered at the regional level.
The respondent's theory of the Autonomous Region being made up of a single
province must, therefore, fail.
Article XXI, Section 13 (B) (c) alloting the huge amount of Ten Million Pesos
(P10,000,000.00) to the Regional Government for its initial organizational
requirements cannot be construed as funding only a lone and small province.
These sections of Republic Act No. 6766 show that a one province Cordillera
Autonomous Region was never contemplated by the law creating it.
The province of Ifugao makes up only 11% of the total population of the areas
enumerated in Article I, Section 2 (b) of Republic Act No. 6766 which include
Benguet, Mountain Province, Abra, Kalinga-Apayao and Baguio City. It has the
second smallest number of inhabitants from among the provinces and city above
mentioned. The Cordillera population is distributed in round figures as follows:
Abra, 185,000; Benguet, 486,000; Ifugao, 149,000; Kalinga-Apayao, 214,000;
Mountain Province, 116,000; and Baguio City, 183,000; Total population of these
five provinces and one city; 1,332,000 according to the 1990 Census (Manila
Standard, September 30, 1990, p. 14).
There are other provisions of Republic Act No. 6766 which are either violated or
which cannot be complied with. Section 16 of Article V calls for a Regional
Commission on Appointments with the Speaker as Chairman and are (6) members
coming from different provinces and cities in the Region. Under the respondents'
view, the Commission would have a Chairman and only one member. It would
never have a quorum. Section 3 of Article VI calls for cabinet members, as far as
practicable, to come from various provinces and cities of the Region. Section 1 of
Article VII creates a system of tribal courts for the various indigenous cultural
communities of the Region. Section 9 of Article XV requires the development of a
common regional language based upon the various languages and dialects in the
region which regional language in turn is expected to enrich the national language.
The entirety of Republic Act No. 6766 creating the Cordillera Autonomous Region is
infused with provisions which rule against the sole province of Ifugao constituting
the Region.:-cralaw
To contemplate the situation envisioned by the respondent would not only violate
the letter and intent of the Constitution and Republic Act No. 6766 but would also
be impractical and illogical.
Our decision in Abbas, et al. v. COMELEC, (G.R. No. 89651, November 10, 1969), is
not applicable in the case at bar contrary to the view of the Secretary of Justice.
The Abbas case laid down the rate on the meaning of majority in the phrase "by
majority of the votes cast by the constituent units called for the purpose" found in
the Constitution, Article X, Section 18. It stated:
x x x
". . . [I]t is thus clear that what is required by the Constitution is simple
majority of votes approving the Organic Act in individual constituent units
and not a double majority of the votes in all constituent units put together,
as well as in the individual constituent units."
This was the pronouncement applied by the Secretary of Justice in arriving at his
conclusion stated in his Memorandum for the President that:
x x x
". . . [i]t is believed that the creation of the Cordillera Autonomous Region
(CAR) as mandated by R.A. No. 6766 became effective upon its approval by
the majority of the votes cast in the province of Ifugao. And considering the
proviso in Section 13 (a) that only the provinces and city voting favorably
shall be included in the CAR, the province of Ifugao being the only province
which voted favorably can, alone, legally and validly constitute the CAR."
(Rollo. p. 40).
The plebiscites mandated by the Constitution and Republic Act No. 6766 for the
Cordillera and Republic Act No. 6734 for the Autonomous Region in Muslim
Mindanao determine (1) whether there shall be an autonomous region in the
Cordillera and in Muslim Mindanao and (2) which provinces and cities, among those
enumerated in the two Republic Acts, shall comprise said Autonomous Regions.
(See III, Record of the Constitutional Commission, 487-492 [1986]).
The Abbas case established the rule to follow on which provinces and cities shall
comprise the autonomous region in Muslim Mindanao which is, consequently, the
same rule to follow with regard to the autonomous region in the Cordillera.
However, there is nothing in the Abbas decision which deals with the issue on
whether an autonomous region, in either Muslim Mindanao or Cordillera could exist
despite the fact that only one province or one city is to constitute it.chanrobles
virtual law library
Stated in another way, the issue in this case is whether the sole province of Ifugao
can validly and legally constitute the Cordillera Autonomous Region. The issue is
not whether the province of Ifugao is to be included in the Cordillera Autonomous
Region. It is the first issue which the Court answers in the instant case.
WHEREFORE, the petition is hereby GRANTED. Resolution No. 2259 of the
Commission on Elections, insofar as it upholds the creation of an autonomous
region, the February 14, 1990 memorandum of the Secretary of Justice, the
February 5, 1990 memorandum of the Executive Secretary, Administrative Order
No. 160, and Republic Act No. 6861 are declared null and void while Executive
Order No. 220 is declared to be still in force and effect until properly repealed or
amended.
SO ORDERED.

[G.R. No. 141616. March 15, 2001]

CITY OF QUEZON, petitioner, vs. LEXBER INCORPORATED, respondent.

DECISION
YNARES-SANTIAGO, J.:

Before us is a petition for review on certiorari assailing the October 18, 1999
decision of the Court of Appeals in CA-G.R. CV No. 59541[1] which affirmed in
toto the January 26, 1998 decision of the Regional Trial Court of Quezon City in Civil
Case No. Q-94-19405.[2]
Briefly stated, the facts are as follows
On August 27, 1990, a Tri-Partite Memorandum of Agreement[3] was drawn
between petitioner City of Quezon, represented by its then Mayor Brigido R. Simon,
Jr., respondent Lexber, Inc. and the then Municipality of Antipolo, whereby a 26,010
square meter parcel of land located in Antipolo[4] was to be used as a garbage dumping
site by petitioner and other Metro Manila cities or municipalities authorized by the
latter, for a 5-year period commencing in January 1991 to December 1995. Part of the
agreement was that the landowner, represented by respondent Lexber, shall be hired
as the exclusive supplier of manpower, heavy equipment and engineering services for
the dumpsite and shall also have the right of first refusal for contracting such services.
This led to the drawing of the first negotiated contract[5] between petitioner,
represented by Mayor Simon, and respondent Lexber on September 10, 1990,
whereby the latter was engaged to construct the necessary infrastructure at the
dumpsite, designated as the Quezon City Sanitary Landfill, for the contract price of
P4,381,069.00. Construction of said infrastructure was completed by respondent
Lexber on November 25, 1991, and the contract price agreed upon was accordingly
paid to it by petitioner.
Meanwhile, on November 8, 1990, a second negotiated contract[6] was entered into
by respondent Lexber with petitioner, again represented by Mayor Simon, whereby it
was agreed that respondent Lexber shall provide maintenance services in the form of
manpower, equipment and engineering operations for the dumpsite for the contract
price of P1,536,796.00 monthly. It was further agreed that petitioner shall pay
respondent Lexber a reduced fee of fifty percent (50%) of the monthly contract price,
or P768,493.00, in the event petitioner fails to dump the agreed volume of 54,000
cubic meters of garbage for any given month. On December 11, 1991, respondent was
notified by petitioner, through the City Engineer, Alfredo Macapugay, Project
Manager, Rene Lazaro and Mayor Simon to commence maintenance and dumping
operations at the site starting on December 15, 1991.[7]
Respondent Lexber alleged that petitioner immediately commenced dumping
garbage on the landfill site continuously from December 1991 until May
1992. Thereafter, petitioner ceased to dump garbage on the said site for reasons not
made known to respondent Lexber. Consequently, even while the dumpsite remained
unused, respondent Lexber claimed it was entitled to payment for its services as
stipulated in the second negotiated contract.
On December 12, 1992, respondents counsel sent a demand letter to petitioner
demanding the payment of at least 50% of its service fee under the said contract, in
the total amount of P9,989,174.00. In view of the idle state of the dumpsite for more
than a year, respondent also sought a clarification from petitioner regarding its
intention on the dumpsite project, considering the waste of equipment and manpower
in the meantime, as well as its loss of opportunity for the property.
Petitioner, this time acting through Mayor Ismael A. Mathay, Jr. who succeeded
Mayor Simon in the interim, denied any liability under the contract on the ground that
the same was invalid and unenforceable. According to Mayor Mathay, the subject
contract was signed only by Mayor Simon and had neither the approval nor
ratification of the City Council, and it lacked the required budget appropriation.
Thus, a complaint for Breach of Contract, Specific Performance or Rescission of
Contract and Damages was filed by respondent Lexber against petitioner on February
21, 1994 before the Regional Trial Court of Quezon City. Respondent Lexber averred
that because petitioner stopped dumping garbage on the dumpsite after May 1992,
Lexbers equipment and personnel were idle to its damage and prejudice.Respondent
prayed that petitioner be ordered to comply with its obligations under the subject
contract or, in the alternative, that the said contract be rescinded and petitioner be
ordered to pay damages.
On January 26, 1998, after trial on the merits, the lower court rendered judgment
in favor of respondent, the dispositive portion of which states:

WHEREFORE, premises considered, judgment is hereby rendered in favor of the

plaintiff and against the defendant:

1. Ordering the defendant to pay the plaintiff the amount of SEVEN HUNDRED
SIXTY EIGHT THOUSAND FOUR HUNDRED NINETY THREE PESOS
(P768,493.00) per month starting December 15, 1991 until December 31, 1995 with
legal interest starting December 16, 1992, the date defendant received plaintiffs extra-
judicial demand, until defendant finally pays the entire amount;

2. Ordering defendant to pay costs of suit.

The claims for attorneys fees and other damages are hereby denied for lack of merit.

SO ORDERED.[8]
 On appeal to the Court of Appeals, the said Judgment was affirmed in toto. With
the denial of its Motion for Reconsideration on January 26, 2000, petitioner now
comes to this Court with the instant petition arguing that the Court of Appeals gravely
erred:

(a) When it refused to hold that the second Negotiated Contract of November 8, 1990
is null and void ab initio, notwithstanding that the execution thereof was in violation
of Secs. 85, 86 and 87 of the Auditing Code of the Philippines (PD 1445) and LOI
968.

(b) When it refused to categorically hold that the said Negotiated Contract of
November 8, 1990 required the prior approval of the City Council, notwithstanding
the fact that the said contract would require the expenditure of public funds in the
amount of P18,817,920.00 for one-year dumping operation, or the total amount of
P94,089,600.00 for five years, and that it is the City Council that is vested by the
Local Government Code (BP Blg. 337) with the power to appropriate city funds to
cover expenses of the City Government.

(c) When it held that Petitioner started to dump garbage at the dumpsite and paid for
such service, despite the fact that Respondents evidence proved otherwise;
furthermore, the Court of Appeals failed to cite any specific evidence to support said
conclusions of fact.

(d) When it held that the said Negotiated Contract of November 8, 1990 was ratified
by the Petitioner by the aforesaid initial dumping of garbage and payment of services,
overlooking the elementary doctrine that a void contract cannot be ratified.

(e) When it wrongly applied an Executive Order and administrative resolution as the
applicable law to govern the aforesaid contract, notwithstanding that the Auditing
Code of the Philippines (PD 1445) and the Local Government Code (BP 337) then
had not been repealed by any legislative enactment, nor could the said executive
issuances repeal them.

(f) When it held that the equities of the case should lean in favor of the respondent and
thus failed to apply the doctrine that Government is not estopped to question the
illegal acts of its officials.

(g) When it wrongly applied the Imus case, not the Osmea case, to the present case.[9]

Petitioners remonstrations can be reduced to two (2) essential arguments:

First. That the second negotiated contract is null and void ab initio because its execution was
done in violation of existing laws, more particularly Sections 85, 86 and 87 of
 Presidential Decree No. 1445 (otherwise known as the Auditing Code of the
Philippines) and Section 177 (b) of Batas Pambansa Blg. 337 (also known as the
Local Government Code of 1983); and
Second. That the facts and evidence do not support the Court of Appeals conclusion that,
notwithstanding the lack of appropriation, subsequent acts of the petitioner
constituted a ratification of the subject negotiated contract.

The issue of whether or not the subject negotiated contract is null and void ab
initio will be discussed first.
Petitioner insists that the subject contract failed to comply with the mandatory
requirements of Presidential Decree No. 1445, otherwise known as the Auditing Code
of the Philippines.
Section 85 thereof provides:

Section 85. Appropriation before entering into contract. (1) No contract involving the
expenditure of public funds shall be entered into unless there is an appropriation
therefor, the unexpected balance of which, free of other obligations, is sufficient to
cover the proposed expenditure; (2) Notwithstanding this provision, contracts for the
procurement of supplies and materials to be carried in stock may be entered into under
regulations of the Commission provided that when issued, the supplies and materials
shall be charged to the proper appropriation account. (Underscoring ours)

Section 86 of PD 1445 also provides as follows:

Section 86. Certificate showing appropriation to meet contract. Except in a case of a

contract for personal service, for supplies for current consumption or to be carried in
stock not exceeding the estimated consumption for three months, or banking
transactions of government-owned or controlled banks, no contract involving the
expenditure of public funds by any government agency shall be entered into or
authorized unless the proper accounting official or the agency concerned shall have
certified to the officer entering into the obligation that funds have been duly
appropriated for the purpose and that the amount necessary to cover the proposed
contract for the current fiscal year is available for expenditure on account thereof,
subject to verification by the auditor concerned. The certification signed by the proper
accounting official and the auditor who verified it, shall be attached to and become an
integral part of the proposed contract, and the sum so certified shall not thereafter be
available for expenditure for any other purpose until the obligation of the government
agency concerned under the contract is fully extinguished. (Underscoring ours)

Petitioner stresses that failure to comply with the requirements underlined in

Sections 85 and 86 of PD 1445 rendered the subject contract void, invoking Section
87 of PD 1445 which provides:
Section 87. Void contract and liability of officer. Any contract entered into contrary to
the requirements of the two immediately preceding sections shall be void, and the
officer or officers entering into the contract shall be liable to the government or other
contracting party for any consequent damage to the same extent as if the transaction
had been wholly between private parties.

Is a contract entered into by the city mayor involving the expenditure of public
funds by the local government without prior appropriation by the city council valid
and binding? Petitioner insists that the answer is in the negative, arguing that there is
no escaping the stringent and mandatory requirement of a prior appropriation, as well
as a certification that funds are available therefor.
If we are to limit our disquisition to the cited provisions of Presidential Decree
No. 1445, or the Auditing Code of the Philippines, in conjunction with Section 177
(b) of Batas Pambansa Blg. 337, or the Local Government Code of 1983, which
empowered the Sangguniang Panlungsod to appropriate funds for expenses of the city
government, and fix the salaries of its officers and employees according to law, there
would be no debate that prior appropriation by the city council and a certification that
funds are available therefor is indeed mandatorily required.
There is no denying that Sections 85 and 86 of P.D. 1445 (Auditing Code of the
Philippines) provide that contracts involving expenditure of public funds:

1) can be entered into only when there is an appropriation therefor; and

2) must be certified by the proper accounting official/agency that funds have been
duly appropriated for the purpose, which certification shall be attached to and become
an integral part of the proposed contact.

However, the very same Presidential Decree No. 1445, which is the cornerstone
of petitioners arguments, does not provide that the absence of an appropriation
law ipso facto makes a contract entered into by a local government unit null and
void. Section 84 of the statute specifically provides:

Revenue funds shall not be paid out of any public treasury or depository except in
pursuance of an appropriation law or other specific statutory authority. (Underscoring
ours)

Consequently, public funds may be disbursed not only pursuant to an

appropriation law, but also in pursuance of other specific statutory authority, i.e.,
Section 84 of PD 1445. Thus, when a contract is entered into by a city mayor pursuant
to specific statutory authority, the law, i.e., PD 1445 allows the disbursement of funds
from any public treasury or depository therefor. It can thus be plainly seen that the law
invoked by petitioner Quezon City itself provides that an appropriation law is not the
only authority upon which public funds shall be disbursed.
Furthermore, then Mayor Brigido Simon, Jr. did not enter into the subject contract
without legal authority. The Local Government Code of 1983, or B.P. Blg. 337, which
was then in force, specifically and exclusively empowered the city mayor to represent
the city in its business transactions, and sign all warrants drawn on the city treasury
and all bonds, contracts and obligations of the city.[10] Such power granted to the city
mayor by B.P. Blg. 337 was not qualified nor restricted by any prior action or
authority of the city council. We note that while the subsequent Local Government
Code of 1991,[11] which took effect after the execution of the subject contracts,
provides that the mayors representation must be upon authority of the sangguniang
panlungsod or pursuant to law or ordinance,[12] there was no such qualification under
the old code.
We must differentiate the provisions of the old Local Government Code of 1983,
B.P. Blg. 337, which was then in force, from that of the Local Government Code of
1991, R.A. No. 7160, which now requires that the mayors representation of the city in
its business transactions must be upon authority of the sangguniang panlungsod or
pursuant to law or ordinance (Section 455 [vi]). No such prior authority was required
under B.P. Blg. 337. This restriction, therefore, cannot be imposed on the city mayor
then since the two contracts were entered into before R.A. No. 7160 was even
enacted.
Under B.P. Blg. 337, while the city mayor has no power to appropriate funds to
support the contracts, neither does said law prohibit him from entering into contracts
unless and until funds are appropriated therefor. In fact, it is his bounden duty to so
represent the city in all its business transactions. On the other hand, the city council
must provide for the depositing, leaving or throwing of garbage [13] and to appropriate
funds for such expenses.[14] (Section 177 [b]). It cannot refuse to so provide and
appropriate public funds for such services which are very vital to the maintenance of
cleanliness of the city and the good health of its inhabitants.
By entering into the two contracts, Mayor Simon did not usurp the city councils
power to provide for the proper disposal of garbage and to appropriate funds
therefor. The execution of contracts to address such a need is his statutory duty, just as
it is the city councils duty to provide for said services. There is no provision in B.P.
Blg. 337, however, that prohibits the city mayor from entering into contracts for the
public welfare, unless and until there is prior authority from the city council. This
requirement was imposed much later by R.A. No. 7160, long after the contracts had
already been executed and implemented.
Even the very Charter of Quezon City,[15] more particularly Section 9(f), Section
12(a) and Section 12(m) thereof, simply provide that the mayor shall exercise general
powers and duties, such as signing all warrants drawn on the city treasurer and all
bonds, contracts, and obligations of the city,[16] even as it grants the City Council the
power, by ordinance or resolution, to make all appropriations for the expenses of the
government of the city,[17] as well as to prohibit the throwing or depositing of offal,
garbage, refuse, or other offensive matter in the same, and to provide for its collection
and disposition x x x.[18]
While the powers and duties of the Mayor and the City Council are clearly
delineated, there is nothing in the cited provisions, nor even in the statute itself, that
requires prior authorization by the city council by proper enactment of an ordinance
before the City Mayor can enter into contracts.
Private respondent Lexber asserts that the subject contract was entered into by
Mayor Simon in behalf of the Quezon City government pursuant to specific statutory
authority, more particularly the provisions of Executive Order No. 392. In accordance
with Article XVIII, Section 8 of the 1987 Constitution, then President Corazon C.
Aquino issued E.O. No. 392 constituting the Metropolitan Manila Authority (or
MMA) to be composed of the heads of the four (4) cities and thirteen (13)
municipalities comprising the Metropolitan Manila area. The said Executive Order
empowered the MMA to have jurisdiction over the delivery of basic urban services
requiring coordination in the Metropolitan area, including sanitation and waste
management.[19]
To fulfill this mandate, the MMA, through Resolution No. 17, Series of 1990,
resolved that pursuant to Section 2 of E.O. No. 392, the:

x x x LGUs remitting their contributions to the MMA within the prescribed period
shall be entitled to a financial assistance in an amount equivalent to 20% of their
remittances provided that the amount is used exclusively to augment the effective
delivery of basic urban services requiring coordination.

The Metropolitan Manila Council (or MMC) also issued Resolution No. 15,
Series of 1991, authorizing the Chairman of the MMC to enter into a memorandum of
agreement or (MOA) with any local chief executive in Metropolitan Manila for the
purpose of managing garbage collection and disposal, among other basic urban
services. Taking their cue from Executive Order No. 392 and the pertinent resolutions
of the MMA and MMC, the then Mayors of Quezon City and the Municipality of
Antipolo entered into a tripartite MOA with respondent Lexber, towards the
establishment of the proposed Quezon City Landfill Disposal System.
It is true that the first negotiated contract between Mayor Simon, Jr. and
respondent Lexber, which provided for the necessary infrastructure of the dumpsite,
was executed without prior authority or appropriation by the city
council. Nevertheless, recognizing the necessity, if not the urgency, of the project,
petitioner honored the said contract and paid respondent Lexber the contract price of
P4,381,069.00.[20]
Respondent Lexber avers that immediately following the completion of the
project in December 1991, petitioner in fact availed of the facilities by delivering and
dumping garbage at the site in accordance with the stipulations in the second
negotiated contract. And yet, after having spent millions of public funds to build the
necessary infrastructure, as well as for site development of the sanitary landfill,
petitioner, under the newly-installed administration of Mayor Ismael Mathay, Jr.,
refused to honor the second negotiated contract by: (1) discontinuing the citys use of
the sanitary landfill; (2) refusing to pay respondent Lexber for services already
rendered from December of 1991 to May of 1992; and (3) denying any liability under
the second negotiated contract, on the grounds that the same was without prior
authority of the city council, and that it was neither approved nor ratified by the said
body. Moreover, Mayor Mathay, Jr. refused to pay its obligation to respondent Lexber
since no provision therefor was made in the 1992/1993 annual city budget.
The trial court ruled that while there may not have been prior authority or
appropriation to enter into and implement the second negotiated contract, the project
denominated as Quezon City Landfill Disposal System was duly supported by a
Certificate of Availability of Funds dated April 4, 1991 signed by the Quezon City
Auditor, Reynaldo P. Ventura, and Treasurer, Montano L. Diaz, stating as follows:

Pursuant to the provisions of Section 86 of P.D. No. 1445, LOI 968 and Section 46 of
P.D. No. 177, I hereby certify that funds have been duly appropriated and alloted
under Advice of Allotment No. 1 and 2 dated March 31, 1991 and in the total amount
of P2,620,169.00; P11,783,399.00 covering the contract entered into with Lexber, Inc.
with business address at 65 Panay Avenue, Quezon City said amount is available for
expenditure on account thereof.[21]

The existence of said document led the trial court to conclude thus:

However, a close examination of the Certificate of Availability of Funds dated

December 3, 1990 shows that the appropriated amounts of P1,700,000.00,
2,641,922.00, and P40,000.00 totaled P4,381,922.00 and not P4,341,922.00, which
amount is, in fact, P853.00 more than the contract price of Negotiated Contract dated
September 10, 1990. This only shows that as of April 4, 1991, there was sufficient
appropriation to cover at least for a period of three (3) months, in order to comply
with the provisions of Section 86 of PD 1445. Moreover, any payment made will
comply with the provision of Section 84 of PD 1445 which states that: Revenue funds
shall not be paid out of any public treasury or depository except in pursuance of an
appropriation law or other specific statutory authority.
In any case, the defendant city can easily make available the necessary funds at the
beginning of the year in the general appropriation to cover the probable expenses
which it would have to incur, considering that pursuant to Resolution No, 72, Series
of 1990 of the Metropolitan Manila Authority, the Local Government Units are
entitled to a financial assistance in an amount equivalent to 20% of their remittances
provided that the amount is used exclusively to augment the effective delivery of
basic services requiring coordination. In fact, the amount of FIVE MILLION PESOS
(P5,000,000.00) has already been set aside in order to be available to augment garbage
collection and disposal in Quezon City.

It must be noted that the Negotiated Contract dated November 8, 1990 is not ipso
facto absolutely null and void. The subject thereof is perfectly within the authority of
the city government. It is pursuant to the Tripartite Agreement entered into between
the plaintiff, the defendant, and the Municipality of Antipolo. The plaintiff was given
the exclusive right to exercise acts stated in the two negotiated contracts, which are
entered into to further carry out and implement the provisions of the Tripartite
Agreement.[22]

The Court of Appeals affirmed the trial courts findings that the second negotiated
contract was executed by virtue of a specific statutory authority, or pursuant to law,
holding that:

Executive Order No. 392 (constituting the Metropolitan Manila Authority, providing
for its powers and functions and for other purposes) and pertinent Resolution No. 72,
Series of 1990 of MMA, and Resolution No. 15, Series of 1991 of MMC, find
application and therefore should govern the subject transactions.

Worthy to stress at this point is the fact that pursuant to Sec. 1, E.O. 392, the then
Metropolitan Manila Authority was tasked, among others, with the delivery of basic
services in the Metropolitan Area, whose services include garbage collection and
disposal. To carry out this mandate and effectively deliver other basic urban services
requiring coordination of local government units, the Metropolitan Manila Authority
through its Resolution No. 72, Series of 1990, granted financial assistance to all local
government units (LGUs) comprising Metropolitan Manila in an amount equivalent to
20% of their remittances as provided under E.O. 392. Likewise, the Metropolitan
Manila Council, in its Resolution No. 15, Series of 1991, resolved to authorize the
Chairman of the MMC to enter into memorandum of Agreement (MOA) with the
Local Chief Executives in Metro Manila for the purpose of, among other things, the
management of garbage collection and its disposal.
The foregoing authorities therefore fully clothed Mayor Brigido Simon, Jr. with the
authority to enter and sign the subject contract for and in behalf of the city
government even without express authority from the City Council.[23]

While it is true that the MMA has no legislative power, E.O. No. 392 specifically
empowered the MMA to have jurisdiction over the delivery of basic urban services
requiring coordination, such as sanitation and waste management.[24] Said E.O. did not
repeal pertinent provisions of B.P. 337, but specifically exempts the MMA from the
application of E.O. 392[25] (Section 11 of E.O 392). There is no conflict as well with
the provisions of P.D. No. 1445 because Sec. 84 thereof also recognizes appropriation
by other statutory authority.
E.O. 392 and MMA Resolutions Nos. 72 and 15 allowed for direct coordination
between the MMA and the covered local government units to expedite the effective
delivery of basic services requiring coordination, such as collection and disposal of
garbage. To this end, the MMA Resolutions (series of 1990) granted financial
assistance to all covered local government units in an amount equivalent to 20% of
their remittances to fund the delivery of said services, pursuant to the provisions of
Sec. 7 of E.O. No. 392:

x x x city and municipal treasurers of the local government units comprising

Metropolitan Manila shall continue to collect all revenues and receipts accruing to the
Metropolitan Manila Commission and remit the same to the Authority; Provided that
such income collections as well as the share of the authority from the regular sources
of revenue in the General Fund of the city or municipality as local counterpart for the
integrated basic services and developmental projects shall be treated as a trust fund in
their account. Provided further that the remittance thereof shall be effected within the
first thirty (30) days following the end of each month. x x x

There was, thus, no justifiable reason for petitioner not to allocate or appropriate
funds at the start of each fiscal year considering that a trust fund had been established
to pay for the effective delivery of basic urban services requiring coordination,
foremost of which is the collection and disposal of garbage.
LOI No. 968, signed by then President Marcos on December 17, 1979, also
provides in part that all contracts for capital projects and for supply of commodities
and services, including equipment, maintenance contracts, and other agreements
requiring payment which are chargeable to agency current operating on capital
expenditure funds, shall be signed by agency heads or other duly authorized official
only when there are available funds. The chief accountant of the contracting agency
shall sign such contracts as witness and contracts without such witness shall be
considered as null and void.
 However, this requirement does not apply to contracts executed by local chief
executives since the said LOI No. 968 was directed only to Ministries and
Heads/Chief Accountants of Ministry, Bureau, Office, Agency of the National
Government, including State Universities and Colleges, and the Chairman,
Commission on Audit. Quezon City, or any urbanized city for that matter, cannot be
considered a ministry, bureau, office or agency of the national government; neither is
the city mayor a minister or head of a ministry, bureau, office or agency of the
national government. Hence, the mayor of Quezon City is not covered by LOI No.
968. The prevailing law in this particular instance is the Local Government Code of
1983 or B.P. Blg. 337.
Therefore, we find no cogent reason to disturb the conclusions of the trial court as
affirmed by the Court of Appeals in this regard. It is clear that the second negotiated
contract was entered into by Mayor Brigido Simon, Jr. pursuant to law or specific
statutory authority as required by P.D. No. 1445.
There is also no merit in petitioners claim that there was no appropriation therefor,
for it is evident that even as early as April 4, 1991, funds which were certified to as
available had been allocated for use in the first few months operation of the sanitary
landfill. The problem arose only because the new administration unjustifiably refused
to abide by the stipulations in the second negotiated contract. Hence, petitioners
arguments on this issue fail to convince this Court that the second negotiated contract
was null and void ab initio for lack of prior appropriation or authority on the part of
Mayor Brigido Simon, Jr.
It is of no moment that the certificate referred to by the trial court did not state
that the amount necessary to cover the proposed contract for the current fiscal year is
available for expenditure on account thereof.[26] The Certificate of Availability of
Funds,[27] though dated December 3, 1990, merely showed that funds for the Landfill
Disposal System was available. Even if the surplus amount was just sufficient to cover
at least three (3) months of operations as of April 4, 1991, said monthly payments
were not due yet as the infrastructure was still being completed. The project was
completed in December of 1991 and dumping was to commence only thereafter. Thus,
the funds to cover the 1992 fiscal year could have been made available and
appropriated therefor at the beginning of said year. That the Quezon City government
later refused to appropriate and approve payments to respondent Lexber under the
contract despite its use of the facilities for several months in 1992, is not respondents
fault, and being the aggrieved party, it cannot be made to suffer the damage wrought
by the petitioners failure or refusal to abide by the contract.
On the issue of subsequent ratification by petitioner, the Court of Appeals held:
Granting but without conceding that Mayor Brigido Simon, Jr. needs to secure prior
authorization from the City Council for the enforceability of the contracts entered into
in the name of the City government, which he failed to do according to the appellant,
We believe that such will not affect the enforceability of the contract because of the
subsequent ratification made by the City government. Thus, when appellant City
government, after the construction by the appellee of the dumpsite structure in
accordance with the contract plans and specifications, started to dump garbage
collected in the City and consequently paid the appellee for the services rendered,
such acts produce and constitute a ratification and approval of the negotiated contract
and necessarily should imply its waiver of the right to assail the contracts
enforceability.[28]

We are not dissuaded by petitioners arguments that there can be no ratification

due to the absence of an explicit or tacit approval of the second negotiated contract. At
the outset, the issue raised by petitioner that the subject contract is null and void ab
initio, and therefore not capable of ratification, has been laid to rest by the inevitable
conclusion that the said contract is valid and binding. Consequently, ratification of the
subject contract is not necessary.
Be that as it may, it cannot be denied that there was constructive ratification on
the part of petitioner. The records show that upon completion of the infrastructure and
other facilities, petitioner, albeit still under the administration of Mayor Brigido
Simon, Jr., started to dump garbage in the premises. In fact, on December 11, 1991, a
Notice to Commence Work,[29] implementing the contract for the maintenance of the
sanitary landfill starting December 15, 1991 to December 31, 1995, was issued by
said Mayor, as recommended by Project Manager Rene R. Lazaro and City Engineer
Alfredo Macapugay.
The records also reveal that petitioner issued Disbursement Vouchers [30] of various
amounts covering the period between March 1, 1992 to April 30, 1992 for the services
rendered by the Mud Regal Group, Incorporated to haul garbage to the sanitary
landfill. The said disbursement vouchers were passed in audit and duly approved and
paid by petitioner. These are facts and circumstances on record which led the trial
court, the appellate court, and this Court to affirm the conclusion that petitioner had
actually ratified the subject contract.[31]
Also part of the evidence on record are receipts of various amounts paid by
respondent Lexber to Mud Regal Group, Inc. for the supply of earth moving
equipment used by Lexber to maintain the sanitary landfill covering the period from
December 1991 to August 1992.[32] There is also a collection letter from Mud Regal
Group, Inc. addressed to respondent Lexber for unpaid bills covering the period from
September to December 1992.[33] While corresponding vouchers were prepared by
petitioner to pay respondent Lexber for work accomplished by the latter in the
maintenance of the sanitary landfill for the period spanning December 1991 to June
1992,[34] these were never processed and approved for payment since action thereon
was overtaken by the change in leadership of the city government. By then, the new
dispensation had already discontinued using the sanitary landfill for reasons it did not
make known to respondent Lexber.
It is evident that petitioner dealt unfairly with respondent Lexber. By the mere
pretext that the subject contract was not approved nor ratified by the city council,
petitioner refused to perform its obligations under the subject contract. Verily, the
same was entered into pursuant to law or specific statutory authority, funds therefor
were initially available and allocated, and petitioner used the sanitary landfill for
several months. The present leadership cannot unilaterally decide to disregard the
subject contract to the detriment of respondent Lexber.
The mere fact that petitioner later refused to continue dumping garbage on the
sanitary landfill does not necessarily prove that it did not benefit at the expense of
respondent Lexber. Whether or not garbage was actually dumped is of no moment, for
respondent Lexbers undertaking was to make available to petitioner the landfill site
and to provide the manpower and machinery to maintain the facility.Petitioner, by
refusing to abide by its obligations as stipulated in the subject negotiated contract,
should be held liable to respondent Lexber in accordance with the terms of the subject
contract.
Petitioners refusal to abide by its commitments gave rise to an untenable situation
wherein petitioner effectively denied the existence and validity of the subject contract
even while respondent Lexber was still bound by it. This situation is inconsistent with
the principle that obligations arising from contracts have the force of law between the
contracting parties and each party is bound to fulfill what has been expressly
stipulated therein.[35] Only respondent Lexber was bound by the contract while petitioner acted as if it were
free therefrom.[36] The Court of Appeals held that:

Moreover, the contention of appellant, if sustained, will undeniably result in grave

injustice and inequity to appellate Lexber, Inc. The records will reveal that appellee
never solicited upon the City government to utilize its properties for a landfill site, as
appellee originally conceived of devoting its property to a more viable undertaking,
bamboo plantation in partnership with foreign firm. On the other hand, it was the City
government, then beset with serious garbage problem that enticed and convinced
Lexber, Inc. to offer its properties as a landfill site, with the assurance of the
opportunities contained in the tri-partite agreement. When appellee acceded to their
request, three contracts unilaterally prepared by the City government was presented to
him, the terms and conditions of which were all established and prescribed by
appellant, and appellees mere participation in the contracts perfection was simply the
affixing of his signature therein.
Clearly, the equities of the case are with appellee Lexber, Inc. Even fair dealing alone
would have required the appellant to abide by its representations, which it did in the
inception, but was later dishonored by the new administration of Mayor Mathay,
Jr. Appellee faithfully performed its undertakings set forth in the contract, upon the
appellants assurance that sufficient funds shall come from the citys statutory
contribution to the MMA. Had it not (sic) for the said assurance, Lexber, Inc. for sure,
would not have ventured into such costly business undertaking. No one in his right
frame of mind would have entered into such kind of contract and invest his fortune
unless assured of the availability of funds to compensate its financial investment.

As correctly pointed out by the court a quo, appellant having taken advantage of and
benefited from the appellee through the assailed negotiated contract shall not be
permitted to attack it on the ground that the contract did not bear the necessary
approval.[37]

Finally, we come to the issue raised by petitioner that the Court of Appeals
gravely erred in holding that the Imus case, not the Osmea case, is applicable to the
instant controversy. We note that the Court of Appeals did not discuss either case but
merely adopted the exhaustive discussion of the trial court on the matter. Before the
court a quo, herein respondent Lexber relied on the ruling of this Court in the case
of Imus Electric Company v. Municipality of Imus,[38] wherein this Court ruled:

The defendants contend that the contract in question is null and void on the ground
that the former municipal council of Imus approved it without having the necessary
funds to pay for the value of the service to be rendered by the plaintiff for a period of
ten (10) years, which amounted to P24,300, and without the provincial treasurers
previous certificate to the effect that said funds have been appropriated and were
available, in violation of the provisions of sections 606, 607 and 608 of the Regional
Administrative Code of 1917. The above-cited legal provisions read as follows:

SEC. 606. Appropriation antecedent to making of contract. No contract involving the

expenditure of public funds shall be made until there is an appropriation therefor, the
unexpended balance of which, free of other obligations, is sufficient to cover the
proposed expenditure. This provision shall not, however, be construed to prevent the
purchasing and carrying of supplies in stock, under the regulations of the Bureau of
Audits, provided that when issued such supplies shall be charged to the proper
appropriation account.

SEC. 607. Certificate showing appropriation to meet contract. Except in the case of a
contract for personal service or for supplies to be carried in stock, no contract
involving an expenditure by the Insular Government of three thousand pesos or more
shall be entered into or authorized until the Insular Auditor shall have certified to the
officer entering into such obligation that funds have been duly appropriated for such
purpose and that the amount necessary to cover the proposed contract is available for
expenditure on account thereof. When application is made to the Insular Auditor for
the certificate herein required, a copy of the proposed contract or agreement shall be
submitted to him accompanied by a statement in writing from the officer making the
application showing all obligations not yet presented for audit which have been
incurred against the appropriation to which the contract in question would be
chargeable; and such certificate, when signed by the Auditor, shall be attached to and
become a part of the proposed contract, and the sum so certified shall not thereafter be
available for expenditure for any other purpose until the Government is discharged
from the contract in question.

Except in the case of a contract for supplies to be carried in stock, no contract

involving the expenditure by any province, municipality, township, or settlement of
two thousand pesos or more shall be entered into or authorized until the treasurer of
the political division concerned shall have certified to the officer entering into such
contract that funds have been duly appropriated for such purpose and that the amount
necessary to cover the proposed contract is available for expenditure on account
thereof. Such certificate, when signed by the said treasurer, shall be attached to and
become a part of the proposed contract and the sum so certified shall not thereafter be
available for expenditure for any other purpose until the contract in question is
lawfully abrogated or discharged.

For the purpose of making the certificate hereinabove required ninety per centum of
the estimated revenues and receipts which should accrue during the current fiscal
year, but which are yet uncollected, shall be deemed to be in the treasury of the
particular branch of the Government against which the obligation in question would
create a charge.

SEC. 608. Void contract; Liability of officer. A purported contract entered into
contrary to the requirements of the next preceding section hereof shall be wholly
void, and the officer assuming to make such contract shall be liable to the
Government or other contracting party for any consequent damage to the same extent
as if the transaction had been wholly between private parties. (Underscoring ours)

The defendants contend that the additional appropriation made by the then municipal
council was inadequate on the ground that it was the duty of the latter to appropriate
funds for the whole terms of the contract and that the contract in question falls within
the prohibition of section 608 because in reality there was no appropriation for the
sum of P24,300, nor did the provincial treasurer certify that such appropriation was
made and that the funds for the same were available. (Underscoring ours)
The inconsistency of the defendants claim becomes obvious merely by taking into
consideration that the contract entered into by the parties was for the sale of electric
current at the rate of P4.50 monthly for every lamp or light of 50 watts, or the sum of
P202.50 every month. Under this agreement, the municipality of Imus was not bound,
nor is it bound, to pay the price of the electric current until the same has been
furnished, and inasmuch as the period of one month was made the basis thereof, there
is no doubt but that neither is the said municipality obliged to pay for the current
except at the end of every month.It is true that the duration of the contract was fixed at
ten (10) years, a period which was accepted by the municipality on the ground that
only under the terms of the contract and the law, the municipality was not bound to
make advanced payments and, consequently, there was no reason for it to appropriate
funds for the said public service except for a period of one month or one year, at most,
if it had sufficient funds, in order to comply with the provisions of section 2296 of the
Revised Administrative Code, which requires that municipalities should, at the
beginning of every year, make a general appropriation containing the probable
expenses which, they would have to incur. (Emphasis supplied)

Petitioner, on the other hand, argued that the above-quoted ruling is no longer
applicable, citing this Courts ruling in the more recent case of Osmea v. Commission
on Audit,[39] to wit:

The Auditing Code of the Philippines (P.D. 1445) further provides that no contract
involving the expenditure of public funds shall be entered into unless there is an
appropriation therefor and the proper accounting official of the agency concerned
shall have certified to the officer entering into the obligation that funds have been duly
appropriated for the purpose and the amount necessary to cover the proposed
contract for the current fiscal year is available for expenditure on account
thereof. Any contract entered into contrary to the foregoing requirements shall be
VOID.

Clearly then, the contract entered into by the former Mayor Duterte was void from the
very beginning since the agreed cost for the project (P8,368,920.00) was way beyond
the appropriated amount (P5,419,180.00) as certified by the City Treasurer. Hence,
the contract was properly declared void and unenforceable in COAs 2 nd Indorsement,
dated September 4, 1986. The COA declared and we agree, that:

The prohibition contained in Sec. 85 of PD 1445 (Government Auditing Code) is

explicit and mandatory. Fund availability is, as it has always been, an indispensable
prerequisite to the execution of any government contract involving the expenditure of
public funds by all government agencies at all levels. Such contracts are not to be as
final and binding unless a certification as to the funds availability is issued (Letter of
Instruction No. 767, s. 1978). Antecedent advance appropriation is thus essential to
government liability on contracts. This contract being violative of the legal
requirement aforequoted, the same contravenes Sec. 85 of PD 1445 and is null and
void by virtue of Sec. 87.

The trial court, which was affirmed by the Court of Appeals, concluded that:

The contention of defendant that the Imus case is no longer applicable in view of the
explicit provisions of PD 1445 is without merit. The prohibitions expressed in
Sections 85, 86, and 87 of PD 1445 are already embodied in the provision of Revised
Administrative Code, specifically Sections 606, 607 and 608, yet, the Supreme Court
treated the contract therein as valid and required the defendant municipality to comply
with its obligation despite the absence of prior approved appropriation at the time of
the execution of the contract. The reason is that the obligation is not payable until the
performance of the services contracted. That is the difference between the Imus case
and the Osmea case.

In the former, the obligation to be rendered is the furnishing or sale of electric current
which the defendant municipality is not bound to pay until the same has been
furnished.

While in the latter, the contract is for the construction of a modern abattoir. The
amount payable is already fixed at the time the contract was executed. Moreover,
what made the Supreme Court declare the contract entered therein as invalid is the
attainment of the finality of the findings of the Commission on Audit, which the
petitioner mayor previously invoked.

Thus, the Highest Tribunal said, and this Court quotes:

As a matter of fact, the City of Cebu relied on the above pronouncement and
interposed the same as its affirmative defense, so much so that petitioner cannot now
assert that it was void having been issued in excess of COAs jurisdiction. A party
cannot invoke the jurisdiction of a court or an administrative body to secure
affirmative relief against his opponent and after obtaining or failing to obtain such
relief, repudiate or question that same jurisdiction. It is not right for a party who has
affirmed and invoked the jurisdiction of a court in a particular matter to secure an
affirmative relief, to afterwards deny the same jurisdiction to escape a penalty.

Besides, neither the petitioner nor HFCCI questioned the ruling of COA declaring the
invalidity of the abattoir contract, thereby resulting in its finality even before the civil
case was instituted. Petitioner could have brought the case to the Supreme Court on a
petition for certiorari within thirty days from receipt of a copy of the COA decision in
the manner provided by law and the Rules of Court. A decision of the Commission or
any of its Auditor not appealed within the period provided by law, shall be final and
executory.[40]

Contrary to petitioners arguments, the facts in the Osmea case are not parallel to
the facts in the instant case. While in the former the construction of an abattoir
entailed the payment in full of a fixed amount, the case at bar involved a contract for
services still to be rendered which was payable on a monthly basis, just as in
the Imus case. In the latter case, the Supreme Court did not declare the contract null
and void ab initio for the reason that appropriation for the project can be made
subsequent to the execution of the contract. Consequently, the ruling in the Imus case
is germane to the instant case.Furthermore, the trial court noted that while herein
petitioner would attack the subject contract for being fatally defective, the
Commission on Audit did not declare the said contract as null and void, unlike in
the Osmea case where the questioned contract was declared invalid by the
COA. Hence, the ruling in the Osmea case finds no application in the instant
controversy.
While the contracts were admittedly negotiated contracts, this fact was never
raised by the petitioner before the trial court, Court of Appeals, and in the instant
petition. The question of the validity of the said contracts never hinged on the fact that
there was no public bidding. What is on record is that it was Mayor Simon who
initiated the negotiations to convince respondent to allow the use of its property as a
dumpsite.
Public bidding may have been dispensed with, not only because time is of the
essence but in recognition of the reality that offering property to be used as a dumpsite
is not an attractive nor lucrative option for property owners. This reality is all the
more glaring in the current situation where Metro Manila local government units are
seemingly unable to cope with the disastrous lack of garbage dumping sites. A major
part of the problem is that no one wants to be the dumping ground of someone elses
garbage. This problem is compounded by recent events where tragedy has befallen
scavengers and residents in a Quezon City dumpsite that should have been closed
years ago. It would no longer be prophetic to say that had Quezon City used the
subject dumpsite and discontinued the use of the Payatas dumpsite way back in 1991,
tragedy therein would have been averted.
Finally, petitioners refusal to honor the contract is not only contrary to law, but
also grossly unfair to respondent Lexber. It was petitioner that first offered and later
persuaded respondent Lexber to convert the latters property into a sanitary landfill for
petitioners exclusive use. While the property could have been used for other more
lucrative and pleasant purposes, petitioner convinced respondent Lexber by its
assurances and stipulations in the contract. In turn, respondent Lexber relied on
petitioner to abide by their contract, only to be rebuffed after petitioner had already
taken initial advantage of the facilities. By virtue of the infrastructure intended for the
sanitary landfill that was erected thereon, respondent Lexber could not divert its use to
other purposes. It is but fair that respondent Lexber be compensated for the financial
losses it has incurred in accordance with the obligation of petitioner as stipulated in
the second negotiated contract.
WHEREFORE, in view of all the foregoing, the Decision of the Court of
Appeals in CA-G.R. CV No. 59541 affirming the judgment of the Regional Trial
Court of Quezon City, Branch 220 in Civil Case No. Q-94-19405 is hereby
AFFIRMED in toto. The instant petition for review is DENIED for lack of merit.
No costs.

G.R. No. 97764 August 10, 1992

LEVY D. MACASIANO, Brigadier General/PNP Superintendent, Metropolitan Traffic
Command, petitioner,
vs.
HONORABLE ROBERTO C. DIOKNO, Presiding Judge, Branch 62, Regional Trial Court of
Makati, Metro Manila, MUNICIPALITY OF PARAAQUE, METRO MANILA, PALANYAG
KILUSANG BAYAN FOR SERVICE, respondents.

MEDIALDEA, J.:

This is a petition for certiorari under Rule 65 of the Rules of Court seeking the annulment of the
decision of the Regional Trial Court of Makati, Branch 62, which granted the writ of preliminary
injunction applied for by respondents Municipality of Paraaque and Palanyag Kilusang Bayan
for Service (Palanyag for brevity) against petitioner herein.

The antecedent facts are as follows:

On June 13, 1990, the respondent municipality passed Ordinance No. 86, Series of 1990 which
authorized the closure of J. Gabriel, G.G. Cruz, Bayanihan, Lt. Garcia Extension and Opena
Streets located at Baclaran, Paraaque, Metro Manila and the establishment of a flea market
thereon. The said ordinance was approved by the municipal council pursuant to MMC
Ordinance No. 2, Series of 1979, authorizing and regulating the use of certain city and/or
municipal streets, roads and open spaces within Metropolitan Manila as sites for flea market
and/or vending areas, under certain terms and conditions.

On July 20, 1990, the Metropolitan Manila Authority approved Ordinance No. 86, s. 1990 of the
municipal council of respondent municipality subject to the following conditions:

1. That the aforenamed streets are not used for vehicular traffic, and that the
majority of the residents do not oppose the establishment of the flea
market/vending areas thereon;

2. That the 2-meter middle road to be used as flea market/vending area shall be
marked distinctly, and that the 2 meters on both sides of the road shall be used
by pedestrians;

3. That the time during which the vending area is to be used shall be clearly
designated;

4. That the use of the vending areas shall be temporary and shall be closed once
the reclaimed areas are developed and donated by the Public Estate Authority.

On June 20, 1990, the municipal council of Paraaque issued a resolution authorizing
Paraaque Mayor Walfrido N. Ferrer to enter into contract with any service cooperative for the
establishment, operation, maintenance and management of flea markets and/or vending areas.

On August 8, 1990, respondent municipality and respondent Palanyag, a service cooperative,

entered into an agreement whereby the latter shall operate, maintain and manage the flea
market in the aforementioned streets with the obligation to remit dues to the treasury of the
municipal government of Paraaque. Consequently, market stalls were put up by respondent
Palanyag on the said streets.

On September 13, 1990, petitioner Brig. Gen. Macasiano, PNP Superintendent of the
Metropolitan Traffic Command, ordered the destruction and confiscation of stalls along G.G.
Cruz and J. Gabriel St. in Baclaran. These stalls were later returned to respondent Palanyag.

On October 16, 1990, petitioner Brig. General Macasiano wrote a letter to respondent Palanyag
giving the latter ten (10) days to discontinue the flea market; otherwise, the market stalls shall
be dismantled.

Hence, on October 23, 1990, respondents municipality and Palanyag filed with the trial court a
joint petition for prohibition and mandamus with damages and prayer for preliminary injunction,
to which the petitioner filed his memorandum/opposition to the issuance of the writ of
preliminary injunction.

On October 24, 1990, the trial court issued a temporary restraining order to enjoin petitioner
from enforcing his letter-order of October 16, 1990 pending the hearing on the motion for writ of
preliminary injunction.

On December 17, 1990, the trial court issued an order upholding the validity of Ordinance No.
86 s. 1990 of the Municipality' of Paraaque and enjoining petitioner Brig. Gen. Macasiano from
enforcing his letter-order against respondent Palanyag.

Hence, this petition was filed by the petitioner thru the Office of the Solicitor General alleging
grave abuse of discretion tantamount to lack or excess of jurisdiction on the part of the trial
judge in issuing the assailed order.

The sole issue to be resolved in this case is whether or not an ordinance or resolution issued by
the municipal council of Paraaque authorizing the lease and use of public streets or
thoroughfares as sites for flea markets is valid.

The Solicitor General, in behalf of petitioner, contends that municipal roads are used for public
service and are therefore public properties; that as such, they cannot be subject to private
appropriation or private contract by any person, even by the respondent Municipality of
Paraaque. Petitioner submits that a property already dedicated to public use cannot be used
for another public purpose and that absent a clear showing that the Municipality of Paraaque
has been granted by the legislature specific authority to convert a property already in public use
to another public use, respondent municipality is, therefore, bereft of any authority to close
municipal roads for the establishment of a flea market. Petitioner also submits that assuming
that the respondent municipality is authorized to close streets, it failed to comply with the
conditions set forth by the Metropolitan Manila Authority for the approval of the ordinance
providing for the establishment of flea markets on public streets. Lastly, petitioner contends that
by allowing the municipal streets to be used by market vendors the municipal council of
respondent municipality violated its duty under the Local Government Code to promote the
general welfare of the residents of the municipality.

In upholding the legality of the disputed ordinance, the trial court ruled:
 . . . that Chanter II Section 10 of the Local Government Code is a statutory grant
of power given to local government units, the Municipality of Paraaque as such,
is empowered under that law to close its roads, streets or alley subject to
limitations stated therein (i.e., that it is in accordance with existing laws and the
provisions of this code).

xxx xxx xxx

The actuation of the respondent Brig. Gen. Levi Macasiano, though apparently
within its power is in fact an encroachment of power legally vested to the
municipality, precisely because when the municipality enacted the ordinance in
question the authority of the respondent as Police Superintendent ceases to
be operative on the ground that the streets covered by the ordinance ceases to
be a public thoroughfare. (pp. 33-34, Rollo)

We find the petition meritorious. In resolving the question of whether the disputed municipal
ordinance authorizing the flea market on the public streets is valid, it is necessary to examine
the laws in force during the time the said ordinance was enacted, namely, Batas Pambansa Blg.
337, otherwise known as Local Government Code, in connection with established principles
embodied in the Civil Code an property and settled jurisprudence on the matter.

The property of provinces, cities and municipalities is divided into property for public use and
patrimonial property (Art. 423, Civil Code). As to what consists of property for public use, Article
424 of Civil Code states:

Art. 424. Property for public use, in the provinces, cities and municipalities,
consists of the provincial roads, city streets, the squares, fountains, public
waters, promenades, and public works for public service paid for by said
provinces, cities or municipalities.

All other property possessed by any of them is patrimonial and shall be governed
by this Code, without prejudice to the provisions of special laws.

Based on the foregoing, J. Gabriel G.G. Cruz, Bayanihan, Lt. Garcia Extension and Opena
streets are local roads used for public service and are therefore considered public properties of
respondent municipality. Properties of the local government which are devoted to public service
are deemed public and are under the absolute control of Congress (Province of Zamboanga del
Norte v. City of Zamboanga, L-24440, March 28, 1968, 22 SCRA 1334). Hence, local
governments have no authority whatsoever to control or regulate the use of public properties
unless specific authority is vested upon them by Congress. One such example of this authority
given by Congress to the local governments is the power to close roads as provided in Section
10, Chapter II of the Local Government Code, which states:

Sec. 10. Closure of roads. A local government unit may likewise, through its
head acting pursuant to a resolution of its sangguniang and in accordance with
existing law and the provisions of this Code, close any barangay, municipal, city
or provincial road, street, alley, park or square. No such way or place or any part
of thereof shall be close without indemnifying any person prejudiced thereby. A
property thus withdrawn from public use may be used or conveyed for any
 purpose for which other real property belonging to the local unit concerned might
be lawfully used or conveyed. (Emphasis ours).

However, the aforestated legal provision which gives authority to local government units to close
roads and other similar public places should be read and interpreted in accordance with basic
principles already established by law. These basic principles have the effect of limiting such
authority of the province, city or municipality to close a public street or thoroughfare. Article 424
of the Civil Code lays down the basic principle that properties of public dominion devoted to
public use and made available to the public in general are outside the commerce of man and
cannot be disposed of or leased by the local government unit to private persons. Aside from the
requirement of due process which should be complied with before closing a road, street or park,
the closure should be for the sole purpose of withdrawing the road or other public property from
public use when circumstances show that such property is no longer intended or necessary for
public use or public service. When it is already withdrawn from public use, the property then
becomes patrimonial property of the local government unit concerned (Article 422, Civil Code;
Cebu Oxygen, etc. et al. v. Bercilles, et al., G.R. No. L-40474, August 29, 1975, 66 SCRA 481).
It is only then that the respondent municipality can "use or convey them for any purpose for
which other real property belonging to the local unit concerned might be lawfully used or
conveyed" in accordance with the last sentence of Section 10, Chapter II of Blg. 337, known as
Local Government Code. In one case, the City Council of Cebu, through a resolution, declared
the terminal road of M. Borces Street, Mabolo, Cebu City as an abandoned road, the same not
being included in the City Development Plan. Thereafter, the City Council passes another
resolution authorizing the sale of the said abandoned road through public bidding. We held
therein that the City of Cebu is empowered to close a city street and to vacate or withdraw the
same from public use. Such withdrawn portion becomes patrimonial property which can be the
object of an ordinary contract (Cebu Oxygen and Acetylene Co., Inc. v. Bercilles, et al., G.R. No.
L-40474, August 29, 1975, 66 SCRA 481). However, those roads and streets which are
available to the public in general and ordinarily used for vehicular traffic are still considered
public property devoted to public use. In such case, the local government has no power to use it
for another purpose or to dispose of or lease it to private persons. This limitation on the authority
of the local government over public properties has been discussed and settled by this Court en
banc in "Francisco V. Dacanay, petitioner v. Mayor Macaria Asistio, Jr., et al., respondents, G.R.
No. 93654, May 6, 1992." This Court ruled:

There is no doubt that the disputed areas from which the private respondents'
market stalls are sought to be evicted are public streets, as found by the trial
court in Civil Case No. C-12921. A public street is property for public use hence
outside the commerce of man (Arts. 420, 424, Civil Code). Being outside the
commerce of man, it may not be the subject of lease or others contract
(Villanueva, et al. v. Castaeda and Macalino, 15 SCRA 142 citing the
Municipality of Cavite v. Rojas, 30 SCRA 602; Espiritu v. Municipal Council of
Pozorrubio, 102 Phil. 869; And Muyot v. De la Fuente, 48 O.G. 4860).

As the stallholders pay fees to the City Government for the right to occupy
portions of the public street, the City Government, contrary to law, has been
leasing portions of the streets to them. Such leases or licenses are null and void
for being contrary to law. The right of the public to use the city streets may not be
bargained away through contract. The interests of a few should not prevail over
the good of the greater number in the community whose health, peace, safety,
 good order and general welfare, the respondent city officials are under legal
obligation to protect.

The Executive Order issued by acting Mayor Robles authorizing the use of
Heroes del '96 Street as a vending area for stallholders who were granted
licenses by the city government contravenes the general law that reserves city
streets and roads for public use. Mayor Robles' Executive Order may not infringe
upon the vested right of the public to use city streets for the purpose they were
intended to serve: i.e., as arteries of travel for vehicles and pedestrians.

Even assuming, in gratia argumenti, that respondent municipality has the authority to pass the
disputed ordinance, the same cannot be validly implemented because it cannot be considered
approved by the Metropolitan Manila Authority due to non-compliance by respondent
municipality of the conditions imposed by the former for the approval of the ordinance, to wit:

1. That the aforenamed streets are not used for vehicular traffic, and that the
majority of the residents do(es) not oppose the establishment of the flea
market/vending areas thereon;

2. That the 2-meter middle road to be used as flea market/vending area shall be
marked distinctly, and that the 2 meters on both sides of the road shall be used
by pedestrians;

3. That the time during which the vending area is to be used shall be clearly
designated;

4. That the use of the vending areas shall be temporary and shall be closed once
the reclaimed areas are developed and donated by the Public Estate Authority.
(p. 38, Rollo)

Respondent municipality has not shown any iota of proof that it has complied with the foregoing
conditions precedent to the approval of the ordinance. The allegations of respondent
municipality that the closed streets were not used for vehicular traffic and that the majority of the
residents do not oppose the establishment of a flea market on said streets are unsupported by
any evidence that will show that this first condition has been met. Likewise, the designation by
respondents of a time schedule during which the flea market shall operate is absent.

Further, it is of public notice that the streets along Baclaran area are congested with people,
houses and traffic brought about by the proliferation of vendors occupying the streets. To
license and allow the establishment of a flea market along J. Gabriel, G.G. Cruz, Bayanihan, Lt.
Garcia Extension and Opena streets in Baclaran would not help in solving the problem of
congestion. We take note of the other observations of the Solicitor General when he said:

. . . There have been many instances of emergencies and fires where

ambulances and fire engines, instead of using the roads for a more direct access
to the fire area, have to maneuver and look for other streets which are not
occupied by stalls and vendors thereby losing valuable time which could,
otherwise, have been spent in saving properties and lives.
 Along G.G. Cruz Street is a hospital, the St. Rita Hospital. However, its
ambulances and the people rushing their patients to the hospital cannot pass
through G.G. Cruz because of the stalls and the vendors. One can only imagine
the tragedy of losing a life just because of a few seconds delay brought about by
the inaccessibility of the streets leading to the hospital.

The children, too, suffer. In view of the occupancy of the roads by stalls and
vendors, normal transportation flow is disrupted and school children have to get
off at a distance still far from their schools and walk, rain or shine.

Indeed one can only imagine the garbage and litter left by vendors on the streets
at the end of the day. Needless to say, these cause further pollution, sickness
and deterioration of health of the residents therein. (pp. 21-22, Rollo)

Respondents do not refute the truth of the foregoing findings and observations of petitioners.
Instead, respondents want this Court to focus its attention solely on the argument that the use of
public spaces for the establishment of a flea market is well within the powers granted by law to a
local government which should not be interfered with by the courts.

Verily, the powers of a local government unit are not absolute. They are subject to limitations
laid down by toe Constitution and the laws such as our Civil Code. Moreover, the exercise of
such powers should be subservient to paramount considerations of health and well-being of the
members of the community. Every local government unit has the sworn obligation to enact
measures that will enhance the public health, safety and convenience, maintain peace and
order, and promote the general prosperity of the inhabitants of the local units. Based on this
objective, the local government should refrain from acting towards that which might prejudice or
adversely affect the general welfare.

As what we have said in the Dacanay case, the general public have a legal right to demand the
demolition of the illegally constructed stalls in public roads and streets and the officials of
respondent municipality have the corresponding duty arising from public office to clear the city
streets and restore them to their specific public purpose.

The instant case as well as the Dacanay case, involves an ordinance which is void and illegal
for lack of basis and authority in laws applicable during its time. However, at this point, We find it
worthy to note that Batas Pambansa Blg. 337, known as Local Government Lode, has already
been repealed by Republic Act No. 7160 known as Local Government Code of 1991 which took
effect on January 1, 1992. Section 5(d) of the new Code provides that rights and obligations
existing on the date of effectivity of the new Code and arising out of contracts or any other
source of prestation involving a local government unit shall be governed by the original terms
and conditions of the said contracts or the law in force at the time such rights were vested.

ACCORDINGLY, the petition is GRANTED and the decision of the respondent Regional Trial
Court dated December 17, 1990 which granted the writ of preliminary injunction enjoining
petitioner as PNP Superintendent, Metropolitan Traffic Command from enforcing the demolition
of market stalls along J. Gabriel, G.G. Cruz, Bayanihan, Lt. Garcia Extension and Opena streets
is hereby RESERVED and SET ASIDE.

SO ORDERED.
RODOLFO G. NAVARRO, VICTOR F. G.R. No. 180050
BERNAL, and
RENE O. MEDINA, Present:
Petitioners, CORONA, C.J.,
CARPIO,
- versus - CARPIO MORALES,
VELASCO, JR.,
EXECUTIVE SECRETARY EDUARDO NACHURA,
ERMITA, representing the President of the LEONARDO-DE CASTRO,
Philippines; Senate of the Philippines, BRION,
represented by the SENATE PRESIDENT; PERALTA,
House of Representatives, represented by BERSAMIN,
the HOUSE SPEAKER; GOVERNOR DEL CASTILLO,
ROBERT ACE S. BARBERS, representing ABAD,
the mother province of Surigao del Norte; VILLARAMA, JR.,
GOVERNOR GERALDINE ECLEO PEREZ,
VILLAROMAN, representing the new MENDOZA, and
Province of Dinagat Islands, SERENO, JJ.
Respondents,

CONGRESSMAN FRANCISCO T.
MATUGAS, HON. SOL T. MATUGAS,
HON. ARTURO CARLOS A. EGAY, JR.,
HON. SIMEON VICENTE G.
CASTRENCE, HON. MAMERTO D.
GALANIDA, HON. MARGARITO M.
LONGOS, and HON. CESAR M.
BAGUNDOL,
Intervenors.

Promulgated:

April 12, 2011

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

RESOLUTION

NACHURA, J.:

For consideration of the Court is the Urgent Motion to Recall Entry of Judgment dated October
20, 2010 filed by Movant-Intervenors[1] dated and filed on October 29, 2010, praying that the Court (a)
recall the entry of judgment, and (b) resolve their motion for reconsideration of the July 20, 2010
Resolution.

To provide a clear perspective of the instant motion, we present hereunder a brief background of
the relevant antecedents

On October 2, 2006, the President of the Republic approved into law Republic Act (R.A.) No.
9355 (An Act Creating the Province of Dinagat Islands).[2] On December 3, 2006, the Commission on
Elections (COMELEC) conducted the mandatory plebiscite for the ratification of the creation of the
province under the Local Government Code (LGC).[3] The plebiscite yielded 69,943 affirmative votes and
63,502 negative votes.[4] With the approval of the people from both the mother province of Surigao del
Norte and the Province of Dinagat Islands (Dinagat), the President appointed the interim set of provincial
officials who took their oath of office on January 26, 2007. Later, during the May 14, 2007 synchronized
elections, the Dinagatnons elected their new set of provincial officials who assumed office on July 1,
2007.[5]

On November 10, 2006, petitioners Rodolfo G. Navarro, Victor F. Bernal and Rene O. Medina,
former political leaders of Surigao del Norte, filed before this Court a petition for certiorari and
prohibition (G.R. No. 175158) challenging the constitutionality of R.A. No. 9355. [6] The Court dismissed
the petition on technical grounds. Their motion for reconsideration was also denied.[7]

Undaunted, petitioners, as taxpayers and residents of the Province of Surigao del Norte, filed
another petition for certiorari[8] seeking to nullify R.A. No. 9355 for being unconstitutional. They alleged
that the creation of Dinagat as a new province, if uncorrected, would perpetuate an illegal act of Congress,
and would unjustly deprive the people of Surigao del Norte of a large chunk of the provincial territory,
Internal Revenue Allocation (IRA), and rich resources from the area. They pointed out that when the law
was passed, Dinagat had a land area of 802.12 square kilometers only and a population of only 106,951,
failing to comply with Section 10, Article X of the Constitution and of Section 461 of the LGC, on both
counts, viz.

Constitution, Article X Local Government

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

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

LGC, Title IV, Chapter I

Section 461. Requisites for Creation. (a) A province may be created if it has an
average annual income, as certified by the Department of Finance, of not less than
Twenty million pesos (P20,000,000.00) based on 1991 constant prices and either of the
following requisites:

(i) a continuous territory of at least two thousand (2,000) square

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

Provided, That, the creation thereof shall not reduce the land area, population,
and income of the original unit or units at the time of said creation to less than the
minimum requirements prescribed herein.

(b) The territory need not be contiguous if it comprises two (2) or more
islands or is separated by a chartered city or cities which do not contribute to the
income of the province.

(c) The average annual income shall include the income accruing to the general
fund, exclusive of special funds, trust funds, transfers, and non-recurring income.
(Emphasis supplied.)
 On February 10, 2010, the Court rendered its 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 and Regulations Implementing the LGC (LGC-IRR), stating
that, [t]he land
area requirement shall not apply where the proposed province is composed of one (1) or more islands for
being beyond the ambit of Article 461 of the LGC, inasmuch as such exemption is not expressly provided
in the law.[11]
The Republic, represented by the Office of the Solicitor General, and Dinagat filed their
respective motions for reconsideration of the Decision. In its Resolution[12] dated May 12, 2010,[13] the
Court denied the said motions.[14]

Unperturbed, the Republic and Dinagat both filed their respective motions for leave of court to
admit their second motions for reconsideration, accompanied by their second motions for
reconsideration. These motions were eventually noted without action by this Court in its June 29,
2010 Resolution.[15]

Meanwhile, the movants-intervenors filed on June 18, 2010 a Motion for Leave to Intervene and
to File and to Admit Intervenors Motion for Reconsideration of the Resolution dated May 12, 2010. They
alleged that the COMELEC issued Resolution No. 8790, relevant to this case, which provides

RESOLUTION NO. 8790

WHEREAS, Dinagat Islands, consisting of seven (7) municipalities, were previously

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

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

WHEREAS, the Supreme Court in G.R. No. 180050 entitled Rodolfo Navarro, et al., vs.
Executive Secretary Eduardo Ermita, as representative of the President of
the Philippines, et al. rendered a Decision, dated 10 February 2010, declaring Republic
Act No. 9355 unconstitutional for failure to comply with the criteria for the creation of a
province prescribed in Sec. 461 of the Local Government Code in relation to Sec. 10,
Art. X, of the 1987 Constitution;

WHEREAS, respondents intend to file Motion[s] for Reconsideration on the above

decision of the Supreme Court;

WHEREAS, the electoral data relative to the: (1) position for Member, House of
Representatives representing the lone congressional district of Dinagat Islands, (2)
names of the candidates for the aforementioned position, (3) position for Governor,
Dinagat Islands, (4) names of the candidates for the said position, (5) position of the
Vice Governor, (6) the names of the candidates for the said position, (7) positions for the
ten (10) Sangguniang Panlalawigan Members and, [8] all the names of the candidates for
Sangguniang Panlalawigan Members, have already been configured into the system and
can no longer be revised within the remaining period before the elections on May 10,
2010.

NOW, THEREFORE, with the current system configuration, and depending on whether
the Decision of the Supreme Court in Navarro vs. Ermita is reconsidered or not, the
Commission RESOLVED, as it hereby RESOLVES, to declare that:

a. If the Decision is reversed, there will be no problem since the current

system configuration is in line with the reconsidered Decision, meaning that
the Province of Dinagat Islands and the Province of Surigao del
Norte remain as two (2) separate provinces;
b. If the Decision becomes final and executory before the election, the
Province of Dinagat Islands will revert to its previous status as part of the
First Legislative District, Surigao del Norte.

But because of the current system configuration, the ballots for the Province
of Dinagat Islands will, for the positions of Member, House of
Representatives, Governor, Vice Governor and Members, Sangguniang
Panlalawigan, bear only the names of the candidates for the said positions.

Conversely, the ballots for the First Legislative District of Surigao del Norte,
will, for the position of Governor, Vice Governor, Member, House of
Representatives, First District of Surigao del Norte and Members,
Sangguniang Panlalawigan, show only candidates for the said
position. Likewise, the whole Province of Surigao del Norte, will, for the
position of Governor and Vice Governor, bear only the names of the
candidates for the said position[s].

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

c. If the Decision becomes final and executory after the election, the
Province of Dinagat Islands will revert to its previous status as part of the
First Legislative District of Surigao del Norte. The result of the election will
have to be nullified for the same reasons given in Item b above. A special
election for Governor, Vice Governor, Member, House of Representatives,
First Legislative District of Surigao del Norte, and Members, Sangguniang
Panlalawigan, First District, Surigao del Norte (with Dinagat Islands) will
have to be conducted.
xxxx

SO ORDERED.

They further alleged that, because they are the duly elected officials of Surigao del Norte whose
positions will be affected by the nullification of the election results in the event that the May 12, 2010
Resolution is not reversed, they have a legal interest in the instant case and would be directly affected by
the declaration of nullity of R.A. No. 9355.Simply put, movants-intervenors election to their respective
offices would necessarily be annulled since Dinagat Islands will revert to its previous status as part of the
First Legislative District of Surigao del Norte and a special election will have to be conducted for
governor, vice governor, and House of Representatives member and Sangguniang Panlalawigan member
for the First Legislative District of Surigao del Norte. Moreover, as residents of Surigao del Norte and as
public servants representing the interests of their constituents, they have a clear and strong interest in the
outcome of this case inasmuch as the reversion of Dinagat as part of the First Legislative District of
Surigao del Norte will affect the latter province such that: (1) the whole administrative set-up of the
province will have to be restructured; (2) the services of many employees will have to be terminated; (3)
contracts will have to be invalidated; and (4) projects and other developments will have to be
discontinued. In addition, they claim that their rights cannot be adequately pursued and protected in any
other proceeding since their rights would be foreclosed if the May 12, 2010 Resolution would attain
finality.

In their motion for reconsideration of the May 12, 2010 Resolution, movants-intervenors raised three (3)
main arguments to challenge the above Resolution, namely: (1) that the passage of R.A. No. 9355
operates as an act of Congress amending Section 461 of the LGC; (2) that the exemption from territorial
contiguity, when the intended province consists of two or more islands, includes the exemption from the
application of the minimum land area requirement; and (3) that the Operative Fact Doctrine is applicable
in the instant case.

In the Resolution dated July 20, 2010,[16] the Court denied the Motion for Leave to Intervene and
to File and to Admit Intervenors Motion for Reconsideration of the Resolution dated May 12, 2010 on the
ground that the allowance or disallowance of a motion to intervene is addressed to the sound discretion of
the Court, and that the appropriate time to file the said motion was before and not after the resolution of
this case.

On September 7, 2010, movants-intervenors filed a Motion for Reconsideration of the July 20, 2010
Resolution, citing several rulings[17] of the Court, allowing intervention as an exception to Section 2, Rule
19 of the Rules of Court that it should be filed at any time before the rendition of judgment. They alleged
that, prior to the May 10, 2010 elections, their legal interest in this case was not yet existent. They averred
that prior to the May 10, 2010 elections, they were unaware of the proceedings in this case. Even for the
sake of argument that they had notice of the pendency of the case, they pointed out that prior to the said
elections, Sol T. Matugas was a simple resident of Surigao del Norte, Arturo Carlos A. Egay, Jr. was a
member of the Sangguniang Panlalawigan of the Second District of Surigao del Norte, and Mamerto D.
Galanida was the Municipal Mayor of Socorro, Surigao del Norte, and that, pursuant to COMELEC
Resolution No. 8790, it was only after they were elected as Governor of Surigao del Norte, Vice
Governor of Surigao del Norte and Sangguniang Panlalawigan Member of the First District of Surigao del
Norte, respectively, that they became possessed with legal interest in this controversy.

On October 5, 2010, the Court issued an order for Entry of Judgment, stating that the decision in this case
had become final and executory on May 18, 2010. Hence, the above motion.

At the outset, it must be clarified that this Resolution delves solely on the instant Urgent Motion to Recall
Entry of Judgment of movants-intervenors, not on the second motions for reconsideration of the original
parties, and neither on Dinagats Urgent Omnibus Motion, which our

esteemed colleague, Mr. Justice Arturo D. Brion considers as Dinagats third motion for
reconsideration. Inasmuch as the motions for leave to admit their respective motions for reconsideration
of the May 12, 2010 Resolution and the aforesaid motions for reconsideration were already noted without
action by the Court, there is no reason to treat Dinagats Urgent Omnibus Motion differently. In relation to
this, the Urgent Motion to Recall Entry of Judgment of movants-intervenors could not be considered as a
second motion for reconsideration to warrant the application of Section 3, Rule 15 of the Internal Rules of
the Supreme Court.[18] It should be noted that this motion prays for the recall of the entry of judgment and
for the resolution of their motion for reconsideration of the July 20, 2010 Resolution which remained
unresolved. The denial of their motion for leave to intervene and to admit motion for reconsideration of
the May 12, 2010 Resolution did not rule on the merits of the motion for reconsideration of the May 12,
2010 Resolution, but only on the timeliness of the intended intervention. Their motion for reconsideration
of this denial elaborated on movants-intervenors interest in this case which existed only after judgment
had been rendered. As such, their motion for intervention and their motion for reconsideration of the May
12, 2010 Resolution merely stand as an initial reconsideration of the said resolution.

With due deference to Mr. Justice Brion, there appears nothing in the records to support the claim
that this was a ploy of respondents legal tactician to reopen the case despite an entry of judgment. To be
sure, it is actually COMELEC Resolution No. 8790 that set this controversy into motion anew. To
reiterate, the pertinent portion of the Resolution reads:

c. If the Decision becomes final and executory after the election, the Province of
Dinagat Islands will revert to its previous status as part of the First Legislative
District of Surigao del Norte. The result of the election will have to be nullified for
the same reasons given in Item b above. A special election for Governor, Vice
Governor, Member, House of Representatives, First Legislative District of Surigao
del Norte, and Members, Sangguniang Panlalawigan, First District, Surigao del
Norte (with Dinagat Islands) will have to be conducted. (Emphasis supplied.)

Indeed, COMELEC Resolution No. 8790 spawned the peculiar circumstance of proper party
interest for movants-intervenors only with the specter of the decision in the main case becoming final and
executory. More importantly, if the intervention be not entertained, the movants-intervenors would be left
with no other remedy as regards to the impending nullification of their election to their respective
positions. Thus, to the Courts mind, there is an imperative to grant the Urgent Motion to Recall Entry of
Judgment by movants-intervenors.

It should be remembered that this case was initiated upon the filing of the petition
for certiorari way back on October 30, 2007. At that time, movants-intervenors had nothing at stake in
the outcome of this case. While it may be argued that their interest in this case should have commenced
upon the issuance of COMELEC Resolution No. 8790, it is obvious that their interest in this case then
was more imaginary than real. This is because COMELEC Resolution No. 8790 provides that should the
decision in this case attain finality prior to the May 10, 2010 elections, the election of the local
government officials stated therein would only have to be postponed. Given such a scenario, movants-
intervenors would not have suffered any injury or adverse effect with respect to the reversion of Dinagat
as part of Surigao del Norte since they would simply have remained candidates for the respective
positions they have vied for and to which they have been elected.

For a party to have locus standi, one must allege such a personal stake in the outcome of the controversy
as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so
largely depends for illumination of difficult constitutional questions. Because constitutional cases are
often public actions in which the relief sought is likely to affect other persons, a preliminary question
frequently arises as to this interest in the constitutional question raised.[19]

It cannot be denied that movants-intervenors will suffer direct injury in the event their Urgent Motion to
Recall Entry of Judgment dated October 29, 2010 is denied and their Motion for Leave to Intervene and
to File and to Admit Intervenors Motion for Reconsideration of the Resolution dated May 12, 2010 is
denied with finality. Indeed, they have sufficiently shown that they have a personal and substantial
interest in the case, such that if the May 12, 2010 Resolution be not reconsidered, their election to their
respective positions during the May 10, 2010 polls and its concomitant effects would all be nullified and
be put to naught. Given their unique circumstances, movants-intervenors should not be left without any
remedy before this Court simply because their interest in this case became manifest only after the case
had already been decided. The consequences of such a decision would definitely work to their
disadvantage, nay, to their utmost prejudice, without even them being parties to the dispute. Such decision
would also violate their right to due process, a right that cries out for protection. Thus, it is imperative that
the movants-intervenors be heard on the merits of their cause. We are not only a court of law, but also of
justice and equity, such that our position and the dire repercussions of this controversy should be weighed
on the scales of justice, rather than dismissed on account of mootness.

The moot and academic principle is not a magical formula that can automatically dissuade the courts from
resolving a case. Courts will decide cases, otherwise moot and academic, if: (1) there is a grave violation
of the Constitution; (2) there is an exceptional character of the situation and the paramount public interest
is involved; (3) the constitutional issue raised requires formation of controlling principles to guide the
bench, the bar, and the public; and (4) the case is capable of repetition yet evading review.[20]The second
exception attends this case.

This Court had taken a liberal attitude in the case of David v. Macapagal-Arroyo,[21] where technicalities
of procedure on locus standi were brushed aside, because the constitutional issues raised were of
paramount public interest or of transcendental importance deserving the attention of the Court. Along
parallel lines, the motion for intervention should be given due course since movants-intervenors have
shown their substantial legal interest in the outcome of this case, even much more than petitioners
themselves, and because of the novelty, gravity, and weight of the issues involved.

Undeniably, the motion for intervention and the motion for reconsideration of the May 12, 2010
Resolution of movants-intervenors is akin to the right to appeal the judgment of a case, which, though
merely a statutory right that must comply with the requirements of the rules, is an essential part of our
judicial system, such that courts should proceed with caution not to deprive a party of the right to question
the judgment and its effects, and ensure that every party-litigant, including those who would be directly
affected, would have the amplest opportunity for the proper and just disposition of their cause, freed from
the constraints of technicalities.[22]

Verily, the Court had, on several occasions, sanctioned the recall entries of judgment in light of attendant
extraordinary circumstances.[23] The power to suspend or even disregard rules of procedure can be so
pervasive and compelling as to alter even that which this Court itself had already declared final. [24] In this
case, the compelling concern is not only to afford the movants-intervenors the right to be heard since they
would be adversely affected by the judgment in this case despite not being original parties thereto, but
also to arrive at the correct interpretation of the provisions of the LGC with respect to the creation of local
government units. In this manner, the thrust of the Constitution with respect to local autonomy and of the
LGC with respect to decentralization and the attainment of national goals, as hereafter elucidated, will
effectively be realized.
On the merits of the motion for intervention, after taking a long and intent look, the Court finds
that the first and second arguments raised by movants-intervenors deserve affirmative consideration.

It must be borne in mind that the central policy considerations in the creation of local government units
are economic viability, efficient administration, and capability to deliver basic services to their
constituents. The criteria prescribed by the LGC, i.e., income, population and land area, are all designed
to accomplish these results. In this light, Congress, in its collective wisdom, has debated on the relative
weight of each of these three criteria, placing emphasis on which of them should enjoy preferential
consideration.

Without doubt, the primordial criterion in the creation of local government units, particularly of a
province, is economic viability. This is the clear intent of the framers of the LGC. In this connection, the
following excerpts from congressional debates are quoted hereunder
HON. ALFELOR. Income is mandatory. We can even have this doubled because we
thought

CHAIRMAN CUENCO. In other words, the primordial consideration here is the

economic viability of the new local government unit, the new province?

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 never be able to become a province because nobody wants to go to your
place. Why? Because you never have any reason for economic viability.

xxxx

CHAIRMAN PIMENTEL. Okay, what about land area?

HON. LUMAUIG. 1,500 square kilometers

HON. ANGARA. Walang problema yon, in fact thats not very critical, yong land area
because

CHAIRMAN PIMENTEL. Okay, ya, our, the Senate version is 3.5, 3,500 square meters,
ah, square kilometers.

HON. LAGUDA. Ne, Ne. A province is constituted for the purpose of administrative
efficiency and delivery of basic services.
CHAIRMAN PIMENTEL. Right.

HON. LAGUDA. Actually, when you come down to it, when government was instituted,
there is only one central government and then everybody falls under that. But it was later
on subdivided into provinces for purposes of administrative efficiency.

CHAIRMAN PIMENTEL. Okay.

 HON. LAGUDA. Now, what were seeing now is that the administrative efficiency is no
longer there precisely because the land areas that we are giving to our governors is so
wide that no one man can possibly administer all of the complex machineries that are
needed.

Secondly, when you say delivery of basic services, as pointed out by Cong. Alfelor,
there are sections of the province which have never been visited by public officials,
precisely because they dont have the time nor the energy anymore to do that because its
so wide. Now, by compressing the land area and by reducing the population requirement,
we are, in effect, trying to follow the basic policy of why we are creating provinces,
which is to deliver basic services and to make it more efficient in administration.

CHAIRMAN PIMENTEL. Yeah, thats correct, but on the assumption that the province
is able to do it without being a burden to the national government. Thats the assumption.

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

(c) The governor or city mayor may prepare a consolidation plan for barangays, based on
the criteria prescribed in this Section, within his territorial jurisdiction. The plan shall be
submitted to the sangguniang panlalawigan or sangguniang panlungsod concerned for
appropriate action. In the case of municipalities within the Metropolitan Manila area and
other metropolitan political subdivisions, the barangay consolidation plan can be
prepared and approved by the sangguniang bayan concerned.

LGC-IRR: ARTICLE 14. Barangays. (a) Creation of barangays by the sangguniang

panlalawigan shall require prior recommendation of the sangguniang bayan.
(b) New barangays in the municipalities within MMA shall be created only by Act of
Congress, subject to the limitations and requirements prescribed in this Article.

(c) Notwithstanding the population requirement, a barangay may be created in the

indigenous cultural communities by Act of Congress upon recommendation of the LGU
or LGUs where the cultural community is located.

(d) A barangay shall not be created unless the following requisites are present:

(1) Population which shall not be less than two thousand (2,000) inhabitants, except in
municipalities and cities within MMA and other metropolitan political subdivisions
as may be created by law, or in highly-urbanized cities where such territory shall
have a population of at least five thousand (5,000) inhabitants, as certified by the
NSO. The creation of a barangay shall not reduce the population of the original
barangay or barangays to less than the prescribed minimum/
(2) Land Area which must be contiguous, unless comprised by two (2) or more
islands. The territorial jurisdiction of a barangay sought to be created shall be
properly identified by metes and bounds or by more or less permanent natural
boundaries.

Municipality:

LGC: SEC. 442. Requisites for Creation. (a) A municipality may be created if it has an
average annual income, as certified by the provincial treasurer, or at least Two million
five hundred thousand pesos (P2,500,000.00) for the last two (2) consecutive years based
on the 1991 constant prices; a population of at least twenty-five thousand (25,000)
inhabitants as certified by the National Statistics Office; and a contiguous
territory of at least fifty (50) square kilometers as certified by the Lands
Management Bureau: Provided, That the creation thereof shall not reduce the land area,
population or income of the original municipality or municipalities at the time of said
creation to less than the minimum requirements prescribed herein.

(b) The territorial jurisdiction of a newly-created municipality shall be properly

identified by metes and bounds. The requirement on land area shall not apply where
the municipality proposed to be created is composed of one (1) or more islands. The
territory need not be contiguous if it comprises two (2) or more islands.

(c) The average annual income shall include the income accruing to the general fund of
the municipality concerned, exclusive of special funds, transfers and non-recurring
income.

(d) Municipalities existing as of the date of effectivity of this Code shall continue to exist
and operate as such. Existing municipal districts organized pursuant to presidential
issuances or executive orders and which have their respective set of elective municipal
officials holding office at the time of the effectivity of this Code shall henceforth be
considered regular municipalities.

LGC-IRR: ARTICLE 13. Municipalities. (a) Requisites for Creation A municipality

shall not be created unless the following requisites are present:
(i) Income An average annual income of not less than Two Million Five
Hundred Thousand Pesos (P2,500,000.00), for the immediately preceding two
(2) consecutive years based on 1991 constant prices, as certified by the
provincial treasurer. The average annual income shall include the income
accruing to the general fund, exclusive of special funds, special accounts,
transfers, and nonrecurring income;
(ii) Population which shall not be less than twenty five thousand (25,000)
inhabitants, as certified by NSO; and

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

The creation of a new municipality shall not reduce the land area, population, and
income of the original LGU or LGUs at the time of said creation to less than the
prescribed minimum requirements. All expenses incidental to the creation shall be borne
by the petitioners.

City:

LGC: SEC. 450. Requisites for Creation. (a) A municipality or a cluster of barangays
may be converted into a component city if it has an average annual income, as certified
by the Department of Finance, of at least Twenty million pesos (P20,000,000.00) for the
last two (2) consecutive years based on 1991 constant prices, and if it has either of the
following requisities:

(i) a contiguous territory of at least one hundred (100) square kilometers, as

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

(b) The territorial jurisdiction of a newly-created city shall be properly identified by

metes and bounds. The requirement on land area shall not apply where the city
proposed to be created is composed of one (1) or more islands. The territory need not
be contiguous if it comprises two (2) or more islands.

(c) The average annual income shall include the income accruing to the general fund,
exclusive of special funds, transfers, and non-recurring income.

LGC-IRR: ARTICLE 11. Cities. (a) Requisites for creation A city shall not be created
unless the following requisites on income and either population or land area are present:
(1) Income An average annual income of not less than Twenty Million Pesos
(P20,000,000.00), for the immediately preceding two (2) consecutive years based on
1991 constant prices, as certified by DOF. The average annual income shall include
the income accruing to the general fund, exclusive of special funds, special accounts,
transfers, and nonrecurring income; and
(2) Population or land area Population which shall not be less than one hundred fifty
thousand (150,000) inhabitants, as certified by the NSO; or land area which must be
contiguous with an area of at least one hundred (100) square kilometers, as certified
by LMB. The territory need not be contiguous if it comprises two (2) or more islands
or is separated by a chartered city or cities which do not contribute to the income of
the province. The land area requirement shall not apply where the proposed city
is composed of one (1) or more islands. The territorial jurisdiction of a city sought
to be created shall be properly identified by metes and bounds.

The creation of a new city shall not reduce the land area, population, and income of the
original LGU or LGUs at the time of said creation to less than the prescribed minimum
requirements.All expenses incidental to the creation shall be borne by the petitioners.

Provinces:

LGC: SEC. 461. Requisites for Creation. (a) A province may be created if it has an
average annual income, as certified by the Department of Finance, of not less than
Twenty million pesos (P20,000,000.00) based on 1991 prices and either of the following
requisites:

(i) a contiguous territory of at least two thousand (2,000) square kilometers, as

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

Provided, That the creation thereof shall not reduce the land area, population, and
income of the original unit or units at the time of said creation to less than the minimum
requirements prescribed herein.

(b) The territory need not be contiguous if it comprises two (2) or more islands or is
separated by a chartered city or cities which do not contribute to the income of the
province.

(c) The average annual income shall include the income accruing to the general fund,
exclusive of special funds, trust funds, transfers, and non-recurring income.

LGC-IRR: ARTICLE 9. Provinces. (a) Requisites for creation A province shall not be
created unless the following requisites on income and either population or land area are
present:

(1) Income An average annual income of not less than Twenty Million pesos
(P20,000,000.00) for the immediately preceding two (2) consecutive years based on
1991 constant prices, as certified by DOF. The average annual income shall include
 the income accruing to the general fund, exclusive of special funds, special accounts,
transfers, and non-recurring income; and
(2) Population or land area Population which shall not be less than two hundred fifty
thousand (250,000) inhabitants, as certified by NSO; or land area which must be
contiguous with an area of at least two thousand (2,000) square kilometers, as
certified by LMB. The territory need not be contiguous if it comprises two (2) or
more islands or is separated by a chartered city or cities which do not contribute to
the income of the province. The land area requirement shall not apply where the
proposed province is composed of one (1) or more islands. The territorial
jurisdiction of a province sought to be created shall be properly identified by metes
and bounds.

The creation of a new province shall not reduce the land area, population, and income of
the original LGU or LGUs at the time of said creation to less than the prescribed
minimum requirements. All expenses incidental to the creation shall be borne by the
petitioners. (Emphasis supplied.)

It bears scrupulous notice that from the above cited provisions, with respect to the creation of barangays,
land area is not a requisite indicator of viability. However, with respect to the creation of municipalities,
component cities, and provinces, the three (3) indicators of viability and projected capacity to provide
services, i.e., income, population, and land area, are provided for.

But it must be pointed out that when the local government unit to be created consists of one (1) or more
islands, it is exempt from the land area requirement as expressly provided in Section 442 and Section 450
of the LGC if the local government unit to be created is a municipality or a component city,
respectively. This exemption is absent in the enumeration of the requisites for the creation of a province
under Section 461 of the LGC, although it is expressly stated under Article 9(2) of the LGC-IRR.

There appears neither rhyme nor reason why this exemption should apply to cities and municipalities, but
not to provinces. In fact, considering the physical configuration of the Philippine archipelago, there is a
greater likelihood that islands or group of islands would form part of the land area of a newly-created
province than in most cities or municipalities. It is, therefore, logical to infer that the genuine legislative
policy decision was expressed in Section 442 (for municipalities) and Section 450 (for component cities)
of the LGC, but was inadvertently omitted in Section 461 (for provinces). Thus, when the exemption was
expressly provided in Article 9(2) of the LGC-IRR, the inclusion was intended to correct the
congressional oversight in Section 461 of the LGC and to reflect the true legislative intent. It would, then,
be in order for the Court to uphold the validity of Article 9(2) of the LGC-IRR.
This interpretation finds merit when we consider the basic policy considerations underpinning the
principle of local autonomy.
Section 2 of the LGC, of which paragraph (a) is pertinent to this case, provides

Sec. 2. Declaration of Policy. (a) It is hereby declared the policy of the State that
the territorial and political subdivisions of the State shall enjoy genuine and meaningful
local autonomy to enable them to attain their fullest development as self-reliant
communities and make them more effective partners in the attainment of national
goals. Toward this end, the State shall provide for a more responsive and accountable
local government structure instituted through a system of decentralization whereby local
government units shall be given more powers, authority, responsibilities, and
resources. The process of decentralization shall proceed from the national government to
the local government units.

This declaration of policy is echoed in Article 3(a) of the LGC-IRR[26] and in the Whereas clauses of
Administrative Order No. 270,[27] which read

WHEREAS, Section 25, Article II of the Constitution mandates that the State shall
ensure the autonomy of local governments;

WHEREAS, pursuant to this declared policy, Republic Act No. 7160, otherwise known
as the Local Government Code of 1991, affirms, among others, that the territorial and
political subdivisions of the State shall enjoy genuine and meaningful local autonomy to
enable them to attain their fullest development as self-reliant communities and make
them more effective partners in the attainment of national goals;

WHEREAS, Section 533 of the Local Government Code of 1991 requires the President
to convene an Oversight Committee for the purpose of formulating and issuing the
appropriate rules and regulations necessary for the efficient and effective implementation
of all the provisions of the said Code; and

WHEREAS, the Oversight Committee, after due deliberations and consultations with all
the concerned sectors of society and consideration of the operative principles of local
autonomy as provided in the Local Government Code of 1991, has completed the
formulation of the implementing rules and regulations; x x x

Consistent with the declared policy to provide local government units genuine and meaningful local
autonomy, contiguity and minimum land area requirements for prospective local government units should
be liberally construed in order to achieve the desired results. The strict interpretation adopted by the
February 10, 2010 Decision could prove to be counter-productive, if not outright absurd, awkward, and
impractical. Picture an intended province that consists of several municipalities and component cities
which, in themselves, also consist of islands. The component cities and municipalities which consist of
islands are exempt from the minimum land area requirement, pursuant to Sections 450 and 442,
respectively, of the LGC. Yet, the province would be made to comply with the minimum land area
criterion of 2,000 square kilometers, even if it consists of several islands. This would mean that Congress
has opted to assign a distinctive preference to create a province with contiguous land area over one
composed of islands and negate the greater imperative of development of self-reliant communities, rural
progress, and the delivery of basic services to the constituency. This preferential option would prove more
difficult and burdensome if the 2,000-square-kilometer territory of a province is scattered because the
islands are separated by bodies of water, as compared to one with a contiguous land mass.

Moreover, such a very restrictive construction could trench on the equal protection clause, as it actually
defeats the purpose of local autonomy and decentralization as enshrined in the Constitution. Hence, the
land area requirement should be read together with territorial contiguity.

Another look at the transcript of the deliberations of Congress should prove enlightening:

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

to his

CHAIRMAN LINA. Okay.

HON. CHIONGBIAN. At the outset, Chairman Lina, we would like to apprise the
distinguished Senator about the action taken by the House, on House Bill No. 7166. This
was passed about two years ago and has been pending in the Senate for
consideration. This is a bill that I am not the only one involved, including our
distinguished Chairman here. But then we did want to sponsor the bill, being the
Chairman then of the Local Government.

So, I took the cudgels for the rest of the Congressmen, who were more or less interested
in the creation of the new provinces, because of the vastness of the areas that were
involved.

At any rate, this bill was passed by the House unanimously without any objection. And as
I have said a while ago, that this has been pending in the Senate for the last two
years. And Sen. Pimentel himself was just in South Cotabato and he delivered a speech
that he will support this bill, and he says, that he will incorporate this in the Local
Government Code, which I have in writing from him. I showed you the letter that he
wrote, and naturally, we in the House got hold of the Senate version. It becomes an
impossibility for the whole Philippines to create a new province, and that is quite the
concern of the respective Congressmen.

Now, insofar as the constitutional provision is concerned, there is nothing to stop the
mother province from voting against the bill, if a province is going to be created.

So, we are talking about devolution of powers here. Why is the province not willing to
create another province, when it can be justified. Even Speaker Mitra says, what will
happen to Palawan?We wont have one million people there, and if you look at Palawan,
there will be about three or four provinces that will comprise that island. So, the
development will be hampered.

Now, I would like to read into the record the letter of Sen. Pimentel, dated November 2,
1989. This was practically about a year after 7166 was approved by the House, House
Bill 7166.

On November 2, 1989, the Senator wrote me:

Dear Congressman Chiongbian:

We are in receipt of your letter of 17 October. Please be informed that

your House No. 7166 was incorporated in the proposed Local Government Code,
Senate Bill No. 155, which is pending for second reading.

Thank you and warm regards.

Very truly yours,

That is the very context of the letter of the Senator, and we are quite surprised that the
Senate has adopted another position.

So, we would like because this is a unanimously approved bill in the House, thats the
only bill that is involving the present Local Government Code that we are practically
considering; and this will be a slap on the House, if we do not approve it, as approved by
the lower House. This can be [an] irritant in the approval of the Conference Committee
Report. And I just want to manifest that insofar as the creation of the province, not only
in my province, but the other provinces. That the mother province will participate in the
plebiscite, they can defeat the province, lets say, on the basis of the result, the province
cannot be created if they lose in the plebiscite, and I dont see why, we should put this
stringent conditions to the private people of the devolution that they are seeking.

So, Mr. Senator, I think we should consider the situation seriously, because, this is an
approved version of the House, and I will not be the one to raise up and question the
Conference Committee Report, but the rest of the House that are interested in this
bill. And they have been approaching the Speaker about this. So, the Speaker reminded
me to make sure that it takes the cudgel of the House approved version.

So, thats all what I can say, Mr. Senator, and I dont believe that it is not, because its the
wish of the House, but because the mother province will participate anyhow, you vote
them down; and that is provided for in the Constitution. As a matter of fact, I have seen
the amendment with regards to the creation of the city to be urbanized, subject to the
plebiscite. And why should we not allow that to happen in the provinces! In other words,
we dont want the people who wants to create a new province, as if they are left in the
devolution of powers, when they feel that they are far away from civilization.
Now, I am not talking about other provinces, because I am unaware, not aware of their
situation. But the province of South Cotabato has a very unique geographical territorial
conglomerations.One side is in the other side of the Bay, of Sarangani Bay. The capital
town is in the North; while these other municipalities are in the East and in the West. And
if they have to travel from the last town in the eastern part of the province, it is about one
hundred forty kilometers to the capital town. And from the West side, it is the same
distance. And from the North side, it is about one hundred kilometers. So that is the
problem there. And besides, they have enough resources and I feel that, not because I am
interested in the province, I am after their welfare in the future. Who am I to dictate on
those people? I have no interest but then I am looking at the future development of these
areas.

As a matter of fact, if I am in politics, its incidental; I do not need to be there, but I can
foresee what the creation of a new province will bring to these people. It will bring them
prosperity; it will bring them more income, and it will encourage even foreign
investors. Like the PAP now, they are concentrating in South Cotabato, especially in the
City of
General Santos and the neighboring municipalities, and they are quite interested and even
the AID people are asking me, What is holding the creation of a new province when
practically you need it? Its not 20 or 30 kilometers from the capital town; its about 140
kilometers. And imagine those people have to travel that far and our road is not like
Metropolitan Manila. That is as far as from here to Tarlac. And there are municipalities
there that are just one municipality is bigger than the province of La Union. They have
the income. Of course, they dont have the population because thats a part of the land of
promise and people from Luzon are migrating everyday because they feel that there are
more opportunities here.

So, by creating the new provinces, not only in my case, in the other cases, it will enhance
the development of the Philippines, not because I am interested in my province. Well, as
far as I am concerned, you know, I am in the twilight years of my life to serve and I
would like to serve my people well. No personal or political interest here. I hope the
distinguished Chairman of the Committee will appreciate the House Bill 7166, which the
House has already approved because we dont want them to throw the Conference
Committee Report after we have worked that the house Bill has been, you know, drawn
over board and not even considered by the Senate. And on top of that, we are considering
a bill that has not yet been passed. So I hope the Senator will take that into account.

Thank you for giving me this time to explain.

CHAIRMAN LINA. Thank you very much, Congressman James. We will look into the
legislative history of the Senate version on this matter of creation of provinces. I am sure
there was an amendment. As I said, Ill look into it. Maybe the House version was
incorporated in toto, but maybe during the discussion, their amendments were introduced
and, therefore, Senator Pimentel could not hold on to the original version and as a result
new criteria were introduced.

But because of the manifestation that you just made, we will definitely, when we reach a
book, Title IV, on the matter of provinces, we will look at it sympathetically from your
end so that the objective that you want [to] achieve can be realized. So we will look at it
with sympathy. We will review our position on the matter, how we arrived at the Senate
version and we will adopt an open mind definitely when we come into it.

CHAIRMAN ALFELOR. Kanino yan?

CHAIRMAN LINA. Book III.

CHAIRMAN ALFELOR. Title?

CHAIRMAN LINA. Title IV.

CHAIRMAN ALFELOR. I have been pondering on the case of James, especially on

economic stimulation of a certain area. Like our case, because I put myself on our
province, our province is quite very big. Its composed of four (4) congressional districts
and I feel it should be five now. But during the Batasan time, four of us talked and
conversed proposing to divide the province into two.

There are areas then, when since time immemorial, very few governors ever tread on
those areas. That is, maybe youre acquainted with the Bondoc Peninsula of Quezon,
fronting that is 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]

The matters raised during the said Bicameral Conference Committee meeting clearly show the manifest
intention of Congress to promote development in the previously underdeveloped and uninhabited land
areas by allowing them to directly share in the allocation of funds under the
national budget. It should be remembered that, under Sections 284 and 285
of the LGC, the IRA is given back to local governments, and the sharing is based on land area,
population, and local revenue.[30]

Elementary is the principle that, if the literal application of the law results in absurdity, impossibility, or
injustice, then courts may resort to extrinsic aids of statutory construction, such as the legislative history
of the law,[31] or may consider the implementing rules and regulations and pertinent executive issuances in
the nature of executive and/or legislative construction. Pursuant to this principle, Article 9(2) of the LGC-
IRR should be deemed incorporated in the basic law, the LGC.

It is well to remember that the LGC-IRR was formulated by the Oversight Committee consisting
of members of both the Executive and Legislative departments, pursuant to Section 533[32] of the
LGC. As Section 533 provides, the Oversight Committee shall formulate and issue the appropriate rules
and regulations necessary for the efficient and effective implementation of any and all provisions of
this Code, thereby ensuring compliance with the principles of local autonomy as defined under the
Constitution. It was also mandated by the Constitution that a local government code shall be enacted by
Congress, to wit

Section 3. The Congress shall enact a local government code which shall provide
for a more responsive and accountable local government structure instituted
through a system of decentralization with effective mechanisms of recall, initiative,
and referendum, allocate among the different local government units their powers,
responsibilities, and resources, and provide for the qualifications, election, appointment
and removal, term, salaries, powers and functions and duties of local officials, and all
other matters relating to the organization and operation of the local units. (Emphasis
supplied.)

These State policies are the very reason for the enactment of the LGC, with the view to attain
decentralization and countryside development. Congress saw that the old LGC, Batas Pambansa Bilang
337, had to be replaced with a new law, now the LGC of 1991, which is more dynamic and cognizant of
the needs of the Philippines as an archipelagic country. This accounts for the exemption from the land
area requirement of local government units composed of one or more islands, as expressly stated under
Sections 442 and 450 of the LGC, with respect to the creation of municipalities and cities, but
inadvertently omitted from Section 461 with respect to the creation of provinces.Hence, the void or
missing detail was filled in by the Oversight Committee in the LGC-IRR.
 With three (3) members each from both the Senate and the House of Representatives, particularly
the chairpersons of their respective Committees on Local Government, it cannot be gainsaid that the
inclusion by the Oversight Committee of the exemption from the land area requirement with respect to the
creation of provinces consisting of one (1) or more islands was intended by Congress, but unfortunately
not expressly stated in Section 461 of the LGC, and this intent was echoed through an express provision
in the LGC-IRR. To be sure, the Oversight Committee did not just arbitrarily and whimsically insert such
an exemption in Article 9(2) of the LGC-IRR. The Oversight Committee evidently conducted due
deliberation and consultations with all the concerned sectors of society and considered the operative
principles of local autonomy as provided in the LGC when the IRR was formulated.[33] Undoubtedly, this
amounts not only to an executive construction, entitled to great weight and respect from this Court, [34] but
to legislative construction as well, especially with the inclusion of representatives from the four leagues of
local government units as members of the Oversight Committee.

With the formulation of the LGC-IRR, which amounted to both executive and legislative
construction of the LGC, the many details to implement the LGC had already been put in place, which
Congress understood to be impractical and not too urgent to immediately translate into direct amendments
to the LGC. But Congress, recognizing the capacity and viability of Dinagat to become a full-fledged
province, enacted R.A. No. 9355, following the exemption from the land area requirement, which, with
respect to the creation of provinces, can only be found as an express provision in the LGC-IRR. In effect,
pursuant to its plenary legislative powers, Congress breathed flesh and blood into that exemption in
Article 9(2) of the LGC-IRR and transformed it into law when it enacted R.A. No. 9355 creating the
Island Province of Dinagat.

Further, the bill that eventually became R.A. No. 9355 was filed and favorably voted upon in both
Chambers of Congress. Such acts of both Chambers of Congress definitively show the clear legislative
intent to incorporate into the LGC that exemption from the land area requirement, with respect to the
creation of a province when it consists of one or more islands, as expressly provided only in the LGC-
IRR. Thereby, and by necessity, the LGC was amended by way of the enactment of R.A. No. 9355.

What is more, the land area, while considered as an indicator of viability of a local government
unit, is not conclusive in showing that Dinagat cannot become a province, taking into account its average
annual income of P82,696,433.23 at the time of its creation, as certified by the Bureau of Local
Government Finance, which is four times more than the minimum requirement of P20,000,000.00 for the
creation of a province. The delivery of basic services to its constituents has been proven possible and
sustainable.Rather than looking at the results of the plebiscite and the May 10, 2010 elections as mere fait
accompli circumstances which cannot operate in favor of Dinagats existence as a province, they must be
seen from the perspective that Dinagat is ready and capable of becoming a province. This Court should
not be instrumental in stunting such capacity. As we have held in League of Cities of the Philippines v.
Commission on Elections[35]
Ratio legis est anima. The spirit rather than the letter of the law. A statute must
be read according to its spirit or intent, for what is within the spirit is within the statute
although it is not within its letter, and that which is within the letter but not within the
spirit is not within the statute. Put a bit differently, that which is within the intent of the
lawmaker is as much within the statute as if within the letter, and that which is within the
letter of the statute is not within the statute unless within the intent of the
lawmakers. Withal, courts ought not to interpret and should not accept an interpretation
that would defeat the intent of the law and its legislators.
So as it is exhorted to pass on a challenge against the validity of an act of Congress, a co-
equal branch of government, it behooves the Court to have at once one principle in mind:
the presumption of constitutionality of statutes. This presumption finds its roots in the tri-
partite system of government and the corollary separation of powers, which enjoins the
three great departments of the government to accord a becoming courtesy for each others
acts, and not to interfere inordinately with the exercise by one of its official
functions. Towards this end, courts ought to reject assaults against the validity of statutes,
barring of course their clear unconstitutionality. To doubt is to sustain, the theory in
context being that the law is the product of earnest studies by Congress to ensure that no
constitutional prescription or concept is infringed. Consequently, before a law duly
challenged is nullified, an unequivocal breach of, or a clear conflict with, the
Constitution, not merely a doubtful or argumentative one, must be demonstrated in such a
manner as to leave no doubt in the mind of the Court.

WHEREFORE, the Court resolved to:

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

2. RECONSIDER and SET ASIDE the July 20, 2010 Resolution, and GRANT the Motion for
Leave to Intervene and to File and to Admit Intervenors Motion for Reconsideration of the Resolution
dated July 20, 2010;

3. GRANT the Intervenors Motion for Reconsideration of the Resolution dated May 12, 2010.
The May 12, 2010 Resolution is RECONSIDERED and SET ASIDE. The provision in Article 9(2) of
the Rules and Regulations Implementing the Local Government Code of 1991 stating, The land area
requirement shall not apply where the proposed province is composed of one (1) or more islands, is
declared VALID. Accordingly, Republic Act No. 9355 (An Act Creating the Province of Dinagat Islands)
is declared as VALID and CONSTITUTIONAL, and the proclamation of the Province of Dinagat
Islands and the election of the officials thereof are declared VALID; and

4. The petition is DISMISSED.

No pronouncement as to costs.
 [G.R. No. 135087. March 14, 2000]

HEIRS OF ALBERTO SUGUITAN, petitioner, vs. CITY OF

MANDALUYONG, respondent. frnaics

DECISION

GONZAGA_REYES, J.:

In this petition for review on certiorari under Rule 45, petitioners[1] pray for the reversal of the
Order dated July 28, 1998 issued by Branch 155 of the Regional Trial Court of Pasig in SCA No.
875 entitled "City of Mandaluyong v. Alberto S. Suguitan, the dispositive portion of which reads
as follows:

WHEREFORE, in view of the foregoing, the instant Motion to Dismiss is hereby

DENIED and an ORDER OF CONDEMNATION is hereby issued declaring that
the plaintiff, City of Mandaluyong, has a lawful right to take the subject parcel of
land together with existing improvements thereon more specifically covered by
Transfer Certificate Of Title No. 56264 of the Registry of Deeds for Metro Manila
District II for the public use or purpose as stated in the Complaint, upon payment
of just compensation.

Accordingly, in order to ascertain the just compensation, the parties are hereby
directed to submit to the Court within fifteen (15) days from notice hereof, a list of
independent appraisers from which the Court t will select three (3) to be
appointed as Commissioners, pursuant to Section 5, Rule 67, Rules of Court.

SO ORDERED.[2]ella

It is undisputed by the parties that on October 13, 1994, the Sangguniang Panlungsod of
Mandaluyong City issued Resolution No. 396, S-1994[3] authorizing then Mayor Benjamin S.
Abalos to institute expropriation proceedings over the property of Alberto Sugui located at Boni
Avenue and Sto. Rosario streets in Mandaluyong City with an area of 414 square meters and
more particularly described under Transfer Certificate of Title No. 56264 of the Registry of
Deeds of Metro Manila District II. The intended purpose of the expropriation was the expansion
of the Mandaluyong Medical Center.

Mayor Benjamin Abalos wrote Alberto Suguitan a letter dated January 20, 1995 offering to buy
his property, but Suguitan refused to sell.[4] Consequently, on March 13, 1995, the city of
Mandaluyong filed a complaint[5] for expropriation with the Regional Trial Court of Pasig. The
case was docketed as SCA No. 875. novero

Suguitan filed a motion to dismiss[6] the complaint based on the following grounds -(1) the power
of eminent domain is not being exercised in accordance with law; (2) there is no public
necessity to warrant expropriation of subject property; (3) the City of Mandaluyong seeks to
expropriate the said property without payment of just compensation; (4) the City of
Mandaluyong has no budget and appropriation for the payment of the property being
expropriated; and (5) expropriation of Suguitan' s property is but a ploy of Mayor Benjamin
Abalos to acquire the same for his personal use. Respondent filed its comment and opposition
to the motion. On October 24, 1995, the trial court denied Suguitan's motion to dismiss.[7]

On November 14, 1995, acting upon a motion filed by the respondent, the trial court issued an
order allowing the City of Mandaluyong to take immediate possession of Suguitan's property
upon the deposit of P621,000 representing 15% of the fair market value of the subject property
based upon the current tax declaration of such property. On December 15, 1995, the City of
Mandaluyong assumed possession of the subject property by virtue of a writ of possession
issued by the trial court on December 14, 1995.[8] On July 28, 1998, the court granted the
assailed order of expropriation.

Petitioner assert that the city of Mandaluyong may only exercise its delegated power of eminent
domain by means of an ordinance as required by section 19 of Republic Act (RA) No.
7160,[9] and not by means of a mere resolution.[10] Respondent contends, however, that it validly
and legally exercised its power of eminent domain; that pursuant to article 36, Rule VI of the
Implementing Rules and Regulations (IRR) of RA 7160, a resolution is a sufficient antecedent
for the filing of expropriation proceedings with the Regional Trial Court. Respondent's position,
which was upheld by the trial court, was explained, thus:[11]

...in the exercise of the respondent City of Mandaluyong's power of eminent

domain, a "resolution" empowering the City Mayor to initiate such expropriation
proceedings and thereafter when the court has already determine[d] with
certainty the amount of just compensation to be paid for the property
expropriated, then follows an Ordinance of the Sanggunian Panlungosd
appropriating funds for the payment of the expropriated property. Admittedly, title
to the property expropriated shall pass from the owner to the expropriator only
upon full payment of the just compensation.[12] novero

Petitioners refute respondent's contention that only a resolution is necessary upon the initiation
of expropriation proceedings and that an ordinance is required only in order to appropriate the
funds for the payment of just compensation, explaining that the resolution mentioned in article
36 of the IRR is for purposes of granting administrative authority to the local chief executive to
file the expropriation case in court and to represent the local government unit in such case, but
does not dispense with the necessity of an ordinance for the exercise of the power of eminent
domain under section 19 of the Code.[13]

The petition is imbued with merit.

Eminent domain is the right or power of a sovereign state to appropriate private property to
particular uses to promote public welfare.[14] It is an indispensable attribute of sovereignty; a
power grounded in the primary duty of government to serve the common need and advance the
general welfare.[15] Thus, the right of eminent domain appertains to every independent
government without the necessity for constitutional recognition.[16] The provisions found in
modern constitutions of civilized countries relating to the taking of property for the public use do
not by implication grant the power to the government, but limit a power which would otherwise
be without limit.[17] Thus, our own Constitution provides that "[p]rivate property shall not be taken
for public use without just compensation."[18] Furthermore, the due process and equal protection
clauses[19] act as additional safeguards against the arbitrary exercise of this governmental
power.

Since the exercise of the power of eminent domain affects an individual's right to private
property, a constitutionally-protected right necessary for the preservation and enhancement of
personal dignity and intimately connected with the rights to life and liberty,[20] the need for its
circumspect operation cannot be overemphasized. In City of Manila vs. Chinese Community of
Manila we said:[21]

The exercise of the right of eminent domain, whether directly by the State, or by
its authorized agents, is necessarily in derogation of private rights, and the rule in
that case is that the authority must be strictly construed. No species of property is
held by individuals with greater tenacity, and none is guarded by the constitution
and the laws more sedulously, than the right to the freehold of inhabitants. When
the legislature interferes with that right, and, for greater public purposes,
appropriates the land of an individual without his consent, the plain meaning of
the law should not be enlarged by doubt[ful] interpretation. (Bensley vs.
Mountainlake Water Co., 13 Cal., 306 and cases cited [73 Am. Dec. 576].)

The statutory power of taking property from the owner without his consent is one
of the most delicate exercise of governmental authority. It is to be watched with
jealous scrutiny. Important as the power may be to the government, the inviolable
sanctity which all free constitutions attach to the right of property of the citizens,
constrains the strict observance of the substantial provisions of the law which
are prescribed as modes of the exercise of the power, and to protect it from
abuse. ...(Dillon on Municipal Corporations [5th Ed.], sec. 1040, and cases cited;
Tenorio vs. Manila Railroad Co., 22 Phil., 411.)

The power of eminent domain is essentially legislative in nature. It is firmly settled, however,
that such power may be validly delegated to local government units, other public entities and
public utilities, although the scope of this delegated legislative power is necessarily narrower
than that of the delegating authority and may only be exercised in strict compliance with the
terms of the delegating law.[22] micks

The basis for the exercise of the power of eminent domain by local government units is section
19 of RA 7160 which provides that:

A local government unit may, through its chief executive and acting pursuant to
an ordinance, exercise the power of eminent domain for public use, purpose, or
welfare for the benefits of the poor and the landless, upon payment of just
compensation, pursuant to the provisions of the Constitution and pertinent
laws; Provided, however, That the power of eminent domain may not be
exercised unless a valid and definite offer has been previously made to the
owner, and such offer was not accepted; Provided, further, That the local
 government unit may immediately take possession of the property upon the filing
of the expropriation proceedings and upon making a deposit with the proper court
of at least fifteen percent (15%) of the fair market value of the property based on
the current tax declaration of the property to be expropriated; Provided,
finally, That the amount to be paid for the expropriated property shall be
determined by the proper court, based on the fair market value at the time of the
taking of the property.

Despite the existence of this legislative grant in favor of local governments, it is still the duty of
the courts to determine whether the power of eminent domain is being exercised in accordance
with the delegating law.[23] In fact, the courts have adopted a more censorious attitude in
resolving questions involving the proper exercise of this delegated power by local bodies, as
compared to instances when it is directly exercised by the national legislature.[24]

The courts have the obligation to determine whether the following requisites have been
complied with by the local government unit concerned:

1. An ordinance is enacted by the local legislative council authorizing the local

chief executive, in behalf of the local government unit, to exercise the power of
eminent domain or pursue expropriation proceedings over a particular private
property .calr

2. The power of eminent domain is exercised for public use, purpose or welfare,
or for the benefit of the poor and the landless.

3. There is payment of just compensation, as required under Section 9, Article III

of the Constitution, and other pertinent laws.

4. A valid and definite offer has been previously made to the owner of the
property sought to be expropriated, but said offer was not accepted.[25]

In the present case, the City of Mandaluyong seeks to exercise the power of eminent domain
over petitioners' property by means of a resolution, in contravention of the first requisite. The
law in this case is clear and free from ambiguity. Section 19 of the Code requires an ordinance,
not a resolution, for the exercise of the power of eminent domain. We reiterate our ruling
in Municipality of Paraaque v. V.M. Realty Corporation[26] regarding the distinction between an
ordinance and a resolution. In that 1998 case we held that:miso

We are not convinced by petitioner's insistence that the terms "resolution" and
"ordinance" are synonymous. A municipal ordinance is different from a
resolution. An ordinance is a law, but a resolution is merely a declaration of the
sentiment or opinion of a lawmaking body on a specific matter. An ordinance
possesses a general and permanent character, but a resolution is temporary in
nature. Additionally, the two are enacted differently -a third reading is necessary
for an ordinance, but not for a resolution, unless decided otherwise by a majority
of all the Sanggunian members.

We cannot uphold respondent's contention that an ordinance is needed only to appropriate

funds after the court has determined the amount of just compensation. An examination of the
applicable law will show that an ordinance is necessary to authorize the filing of a complaint with
the proper court since, beginning at this point, the power of eminent domain is already being
exercised.

Rule 67 of the 1997 Revised Rules of Court reveals that expropriation proceedings are
comprised of two stages:

(1) the first is concerned with the determination of the authority of the plaintiff to
exercise the power of eminent domain and the propriety of its exercise in the
context of the facts involved in the suit; it ends with an order, if not in a dismissal
of the action, of condemnation declaring that the plaintiff has a lawful right to take
the property sought to be condemned, for the public use or purpose described in
the complaint, upon the payment of just compensation to be determined as of the
date of the filing of the complaint;

(2) the second phase is concerned with the determination by the court of the just
compensation for the property sought to be taken; this is done by the court with
the assistance of not more than three (3) commissioners.[27]

Clearly, although the determination and award of just compensation to the defendant is
indispensable to the transfer of ownership in favor of the plaintiff, it is but the last stage of the
expropriation proceedings, which cannot be arrived at without an initial finding by the court that
the plaintiff has a lawful right to take the property sought to be expropriated, for the public use or
purpose described in the complaint. An order of condemnation or dismissal at this stage would
be final, resolving the question of whether or not the plaintiff has properly and legally exercised
its power of eminent domain.

Also, it is noted that as soon as the complaint is filed the plaintiff shall already have the right to
enter upon the possession of the real property involved upon depositing with the court at least
fifteen percent (15%) of the fair market value of the property based on the current tax
declaration of the property to be expropriated.[28] Therefore, an ordinance promulgated by the
local legislative body authorizing its local chief executive to exercise the power of eminent
domain is necessary prior to the filing by the latter of the complaint with the proper court, and
not only after the court has determined the amount of just compensation to which the defendant
is entitled.basra

Neither is respondent's position improved by its reliance upon Article 36 (a), Rule VI of the IRR
which provides that:

If the LGU fails to acquire a private property for public use, purpose, or welfare
through purchase, LGU may expropriate said property through a resolution of the
sanggunian authorizing its chief executive to initiate expropriation proceedings.

The Court has already discussed this inconsistency between the Code and the IRR, which is
more apparent than real, in Municipality of Paraaque vs. V.M. Realty Corporation,[29] which we
quote hereunder:

Petitioner relies on Article 36, Rule VI of the Implementing Rules, which requires
only a resolution to authorize an LGU to exercise eminent domain. This is clearly
misplaced, because Section 19 of RA 7160, the law itself, surely prevails over
said rule which merely seeks to implement it. It is axiomatic that the clear letter of
 the law is controlling and cannot be amended by a mere administrative rule
issued for its implementation. Besides, what the discrepancy seems to indicate is
a mere oversight in the wording of the implementing rules, since Article 32, Rule
VI thereof, also requires that, in exercising the power of eminent domain, the
chief executive of the LGU must act pursuant to an ordinance.

Therefore, while we remain conscious of the constitutional policy of promoting local autonomy,
we cannot grant judicial sanction to a local government unit's exercise of its delegated power of
eminent domain in contravention of the very law giving it such power.

It should be noted, however, that our ruling in this case will not preclude the City of
Mandaluyong from enacting the necessary ordinance and thereafter reinstituting expropriation
proceedings, for so long as it has complied with all other legal requirements.[30]

WHEREFORE, the petition is hereby GRANTED. The July 28, 1998 decision of Branch 155 of
the Regional Trial Court of Pasig in SCA No. 875 is hereby REVERSED and SET ASIDE.akin

SO ORDERED