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MIAA vs CA

MANILA INTERNATIONAL AIRPORT AUTHORITY vs. COURT OF APPEALS G.R. No. 155650 July 20, 2006 Facts: MIAA received Final Notices of Real Estate Tax Delinquency from the City of Paraaque for the taxable years 1992 to 2001. MIAAs real estate tax delinquency was estimated at P624 million. The City of Paraaque, through its City Treasurer, issued notices of levy and warrants of levy on the Airport Lands and Buildings. The Mayor of the City of Paraaque threatened to sell at public auction the Airport Lands and Buildings should MIAA fail to pay the real estate tax delinquency. MIAA filed with the Court of Appeals an original petition for prohibition and injunction, with prayer for preliminary injunction or temporary restraining order. The petition sought to restrain the City of Paraaque from imposing real estate tax on, levying against, and auctioning for public sale the Airport Lands and Buildings. Paranaques Contention: Section 193 of the Local Government Code expressly withdrew the tax exemption privileges of government-owned and-controlled corporations upon the effectivity of the Local Government Code. Respondents also argue that a basic rule of statutory construction is that the express mention of one person, thing, or act excludes all others. An international airport is not among the exceptions mentioned in Section 193 of the Local Government Code. Thus, respondents assert that MIAA cannot claim that the Airport Lands and Buildings are exempt from real estate tax. MIAAs contention: Airport Lands and Buildings are owned by the Republic. The government cannot tax itself. The reason for tax exemption of public property is that its taxation would not inure to any public advantage, since in such a case the tax debtor is also the tax creditor. Issue: WON Airport Lands and Buildings of MIAA are exempt from real estate tax under existing laws? Yes. Ergo, the real estate tax assessments issued by the City of Paraaque, and all proceedings taken pursuant to such assessments, are void. Held: 1. MIAA is Not a Government-Owned or Controlled Corporation MIAA is not a government-owned or controlled corporation but an instrumentality of the National Government and thus exempt from local taxation. MIAA is not a stock corporation because it has no capital stock divided into shares. MIAA has no stockholders or voting shares. MIAA is also not a non-stock corporation because it has no members. A non-stock corporation must have members. MIAA is a government instrumentality vested with corporate powers to perform efficiently its governmental functions. MIAA is like any other government instrumentality, the only difference is that MIAA is vested with corporate powers. When the law vests in a government instrumentality corporate powers, the instrumentality does not become a corporation. Unless the government instrumentality is organized as a stock or non-stock corporation, it remains a government instrumentality exercising not only governmental but also corporate powers. Thus, MIAA exercises the governmental powers of eminent domain, police authority and the levying of fees and charges. At the same time, MIAA exercises all the powers of a

MIAA vs CA
corporation under the Corporation Law, insofar as these powers are not inconsistent with the provisions of this Executive Order. 2. Airport Lands and Buildings of MIAA are Owned by the Republic a. Airport Lands and Buildings are of Public Dominion The Airport Lands and Buildings of MIAA are property of public dominion and therefore owned by the State or the Republic of the Philippines. No one can dispute that properties of public dominion mentioned in Article 420 of the Civil Code, like roads, canals, rivers, torrents, ports and bridges constructed by the State, are owned by the State. The term ports includes seaports and airport s. The MIAA Airport Lands and Buildings constitute a port constructed by the State. Under Article 420 of the Civil Code, the MIAA Airport Lands and Buildings are properties of public dominion and thus owned by the State or the Republic of the Philippines. The Airport Lands and Buildings are devoted to public use because they are used by the public for international and domestic travel and transportation. The fact that the MIAA collects terminal fees and other charges from the public does not remove the character of the Airport Lands and Buildings as properties for public use. The charging of fees to the public does not determine the character of the property whether it is of public dominion or not. Article 420 of the Civil Code defines property of public dominion as one intended for public use. The terminal fees MIAA charges to passengers, as well as the landing fees MIAA charges to airlines, constitute the bulk of the income that maintains the operations of MIAA. The collection of such fees does not change the character of MIAA as an airport for public use. Such fees are often termed users tax. This means taxing those among the public who actually use a public facility instead of taxi ng all the public including those who never use the particular public facility. b. Airport Lands and Buildings are Outside the Commerce of Man The Court has also ruled that property of public dominion, being outside the commerce of man, cannot be the subject of an auction sale. Properties of public dominion, being for public use, are not subject to levy, encumbrance or disposition through public or private sale. Any encumbrance, levy on execution or auction sale of any property of public dominion is void for being contrary to public policy. Essential public services will stop if properties of public dominion are subject to encumbrances, foreclosures and auction sale. This will happen if the City of Paraaque can foreclose and compel the auction sale of the 600-hectare runway of the MIAA for non-payment of real estate tax. c. MIAA is a Mere Trustee of the Republic MIAA is merely holding title to the Airport Lands and Buildings in trust for the Republic. Section 48, Chapter 12, Book I of the Administrative Code allows instrumentalities like MIAA to hold title to real properties owned by the Republic . n MIAAs case, its status as a mere trustee of the Airport Lands and Buildings is clearer because even its executive head cannot sign the deed of conveyance on behalf of the Republic. Only the President of the Republic can sign such deed of conveyance. d. Transfer to MIAA was Meant to Implement a Reorganization The transfer of the Airport Lands and Buildings from the Bureau of Air Transportation to MIAA was not meant to transfer beneficial ownership of these assets from the Republic to MIAA. The purpose was merely toreorganize a division in the Bureau of Air Transportation into a separate and autonomous body. The Republic remains the beneficial owner of the Airport Lands and Buildings. MIAA itself is owned solely by the Republic. No party claims any owner ship rights over MIAAs assets adverse to the Republic.

MIAA vs CA
e. Real Property Owned by the Republic is Not Taxable Sec 234 of the LGC provides that real property owned by the Republic of the Philippines or any of its political subdivisions except when the beneficial use thereof has been granted, for consideration or otherwise, to a taxable person following are exempted from payment of the real property tax. However, portions of the Airport Lands and Buildings that MIAA leases to private entities are not exempt from real estate tax. For example, the land area occupied by hangars that MIAA leases to private corporations is subject to real estate tax.

ACORD vs. Zamora

EN BANC

[G.R. No. 144256. June 8, 2005]

ALTERNATIVE CENTER FOR ORGANIZATIONAL REFORMS AND DEVELOPMENT, INC. (ACORD), BALAY MINDANAW FOUNDATION, INC. (BMFI); BARRIOS, INC.; CAMARINES SUR NGO-PO DEVELOPMENT NETWORK, INC. (CADENET); CENTER FOR PARTICIPATORY GOVERNANCE (CPAG); ENVIRONMENTAL LEGAL ASSISTANCE CENTER, INC. (ELAC); FELLOWSHIP FOR ORGANIZING ENDEAVORS (FORGE); FOUNDATION FOR LOCAL AUTONOMY AND GOOD GOVERNNANCE, INC. (FLAGG); INSTITUTE OF POLITICS AND GOVERNANCE (IPG); KAISAHAN PARA SA KAUNLARAN NG KANAYUNAN AT REPORMANG PANSAKAHAN (KAISAHAN); MANGGAGAGAWANG KABABAIHANG MITHI AY PAGLAYA (MAKALAYA); NAGA CITY PEOPLES COUNCIL (NCPC); NGO-PO COUNCIL OF CAMARINES SUR FOR COMMUNITY PARTICIPATION AND EMPOWERMENT, INC. (NPCCS); PAILIG DEVELOPMENT FOUNDATION INC. (PDFI); PHILIPPINE ECUMENICAL ACTION FOR COMMUNITY EMPOWERMENT FOUNDATION, INC. (PEACE FOUNDATION, INC.); PHILIPPINE PARTNERSHIP FOR THE DEVELOPMENT OF HUMAN RESOURCES IN RURAL AREAS (PHILDHRRA); PILIPINA, INC. (ANG KILUSAN NG KABABAIHANG PILIPINO); SENTRO NG ALTERNATIBONG LINGAP PANLIGAL (SALIGAN); URBAN LAND REFORM TASK FORCE (ULR-TF); ADELINO C. LAVADOR; PUNONG BARANGAY ISABEL MENDEZ; PUNONG BARANGAY CAROLINA ROMANOS, petitioners, vs. HON. RONALDO ZAMORA, in his capacity as Executive Secretary, HON. BENJAMIN DIOKNO, in his capacity as Secretary, Department of Budget and Management, HON. LEONOR MAGTOLISBRIONES, in her capacity as National Treasurer, and the COMMISSION ON AUDIT, respondents. DECISION
CARPIO MORALES, J.:

Pursuant to Section 22, Article VII of the Constitution[1] mandating the President to submit to Congress a budget of expenditures within thirty days before the opening of every regular session, then President Joseph Ejercito Estrada submitted the National Expenditures Program for Fiscal Year 2000. In the said Program, the President proposed an Internal Revenue Allotment (IRA) in the amount of P121,778,000,000 following the formula provided for in Section 284 of the Local Government Code of 1992,viz:

ACORD vs. Zamora

SECTION 284. Allotment of Internal Revenue Taxes. Local government units shall have a share in the national internal revenue taxes based on the collection of the third fiscal year preceding the current fiscal year as follows: (a) (b) (c) On the first year of the effectivity of this Code, thirty percent (30%); On the second year, thirty-five percent (35%); and On the third year and thereafter, forty percent (40%).

x x x (Emphasis supplied)
On February 16, 2000, the President approved House Bill No. 8374 a bill sponsored in the Senate by then Senator John H. Osmea who was the Chairman of the Committee on Finance. This bill became Republic Act No. 8760, AN ACT APPROPRIATING FUNDS FOR THE OPERATION OF THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES FROM JANUARY ONE TO DECEMBER THIRTY-ONE, TWO THOUSAND, AND FOR OTHER PURPOSES. The act, otherwise known as the General Appropriations Act (GAA) for the Year 2000, provides under the heading ALLOCATIONS TO LOCAL GOVERNMENT UNITS that the IRA for local government units shall amount to P111,778,000,000:

XXXVII. ALLOCATIONS TO LOCAL GOVERNMENT UNITS A. INTERNAL REVENUE ALLOTMENT

For apportionment of the shares of local government units in the internal revenue taxes in accordance with the purpose indicated hereunder ... P111,778,000,000 New Appropriations, by Purpose Current Operating Expenditures Maintenance and Other Personal Operating Services Expenses A. a. PURPOSE(S) Internal Revenue Allotment xxx P111,778,000,000 P111,778,000,000

Capital Outlays

Total

ACORD vs. Zamora

TOTAL NEW APPROPRIATIONS P111,778,000,000

In another part of the GAA, under the heading UNPROGRAMMED FUND, it is provided that an amount of P10,000,000,000 (P10 Billion), apart from theP111,778,000,000 mentioned above, shall be used to fund the IRA, which amount shall be released only when the original revenue targets submitted by the President to Congress can be realized based on a quarterly assessment to be conducted by certain committees which the GAA specifies, namely, the Development Budget Coordinating Committee, the Committee on Finance of the Senate, and the Committee on Appropriations of the House of Representatives.

LIV. UNPROGRAMMED FUND For fund requirements in accordance with the purposes indicated hereunder P48,681,831,000 A. PURPOSE(S) xxxx 6. Additional Operational Requirements and Projects of Agencies xxxx Special Provisions 1. Release of the Fund. The amounts herein appropriated shall be released only when the revenue collections exceed the original revenue targets submitted by the President of the Philippines to Congress pursuant to Section 22, Article VII of the Constitution or when the corresponding funding or receipts for the purpose have been realized except in the special cases covered by specific procedures in Special Provision Nos. 2, 3, 4, 5, 7, 8, 9, 13 and 14 herein: PROVIDED, That in cases of foreign-assisted projects, the existence of a perfected loan agreement shall be sufficient compliance for the issuance of a Special Allotment Release Order covering the loan proceeds: PROVIDED, FURTHER, That no amount of the Unprogrammed Fund shall be funded out of the savings generated from programmed items in this Act. xxxx 4. Additional Operational Requirements and Projects of Agencies. The appropriations for Purpose 6 Additional Operational Requirements and Projects of Agencies herein indicated shall be released only when the original revenue targets submitted by the President of the

P14,788,764,000

ACORD vs. Zamora

Philippines to Congress pursuant to Section 22, Article VII of the Constitution can be realized based on a quarterly assessment of the Development Budget Coordinating Committee, the Committee on Finance of the Senate and the Committee on Appropriations of the House of Representatives and shall be used to fund the following: xxxx Internal Revenue Allotments Maintenance and Other Operating Expenses

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

Total, IRA

P10,000,000,000 xxxx

Total x x x x (Emphasis supplied)

P14,788,764,000

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

Petitioners contend that: 1. SECTION 1, XXXVII (A) AND LIV, SPECIAL PROVISIONS 1 AND 4, OF THE YEAR 2000 GAA ARE NULL AND VOID FOR BEING UNCONSTITUTIONAL AS THEY VIOLATE THE AUTONOMY OF LOCAL GOVERNMENTS BY UNLAWFULLY REDUCING BY TEN BILLION PESOS (P10 BILLION) THE INTERNAL REVENUE ALLOTMENTS DUE TO THE LOCAL GOVERNMENTS AND WITHHOLDING THE RELEASE OF SUCH AMOUNT BY PLACING THE SAME UNDER UNPROGRAMMED FUNDS. THIS VIOLATES THE CONSTITUTIONAL MANDATE IN ART. X, SEC. 6, THAT THE LOCAL GOVERNMENT UNITS JUST SHARE IN THE NATIONAL TAXES SHALL BE

ACORD vs. Zamora

AUTOMATICALLY RELEASED TO THEM. IT ALSO VIOLATES THE LOCAL GOVERNMENT CODE, SPECIFICALLY, SECS. 18, 284, AND 286. 2. SECTION 1, XXXVII (A) AND LIV, SPECIAL PROVISIONS 1 AND 4, OF THE YEAR 2000 GAA ARE NULL AND VOID FOR BEING UNCONSTITUTIONAL AS THEY VIOLATE THE AUTONOMY OF LOCAL GOVERNMENTS BY PLACING TEN BILLION PESOS (P10 BILLION) OF THE INTERNAL REVENUE ALLOTMENTS DUE TO THE LOCAL GOVERNMENTS, EFFECTIVELY AND PRACTICALLY, WITHIN THE CONTROL OF THE CENTRAL AUTHORITIES. 3. SECTION 1, XXXVII (A) AND LIV, SPECIAL PROVISIONS 1 AND 4, OF THE YEAR 2000 GAA ARE NULL AND VOID FOR BEING UNCONSTITUTIONAL ASTHE PLACING OF P10 BILLION PESOS OF THE IRA UNDER UNPROGRAMMED FUNDS CONSTITUTES AN UNDUE DELEGATION OF LEGISLATIVE POWER TO THE RESPONDENTS. 4. SECTION 1, XXXVII (A) AND LIV, SPECIAL PROVISIONS 1 AND 4, OF THE YEAR 2000 GAA ARE NULL AND VOID FOR BEING UNCONSTITUTIONAL ASTHE PLACING OF P10 BILLION PESOS OF THE IRA UNDER UNPROGRAMMED FUNDS CONSTITUTES AN AMENDMENT OF THE LOCAL GOVERNMENT CODE OF 1991, WHICH CANNOT BE DONE IN A GENERAL APPROPRIATIONS ACT AND WHICH PURPOSE WAS NOT REFLECTED IN THE TITLE OF THE YEAR 2000 GAA. 5. THE YEAR 2000 GAAS REDUCTION OF THE IRA UNDERMINES THE FOUNDATION OF OUR LOCAL GOVERNANCE SYSTEM WHICH IS ESSENTIAL TO THE EFFICIENT OPERATION OF THE GOVERNMENT AND THE DEVELOPMENT OF THE NATION. 6. THE CONGRESS AND THE EXECUTIVE, IN PASSING AND APPROVING, RESPECTIVELY, THE YEAR 2000 GAA, AND THE RESPONDENTS, IN IMPLEMENTING THE SAID YEAR 2000 GAA, INSOFAR AS SECTION 1, XXXVII (A) AND LIV, SPECIAL PROVISIONS 1 AND 4, ARE CONCERNED, ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION AS THEY TRANSGRESSED THE CONSTITUTION AND THE LOCAL GOVERNMENT CODES PROHIBITION ON ANY INVALID REDUCTION AND WITHHOLDING OF THE LOCAL GOVERNMENTS IRA. (Underscoring supplied)
After the parties had filed their respective memoranda, a MOTION FOR INTERVENTION/MOTION TO ADMIT ATTACHED PETITION FOR INTERVENTION was filed on October 22, 2001 by the Province of Batangas, represented by then Governor Hermilando I. Mandanas. On November 6, 2001, the Province of Nueva Ecija, represented by Governor Tomas N. Joson III, likewise filed a MOTION FOR LEAVE OF COURT TO INTERVENE AND FILE PETITION -ININTERVENTION.

ACORD vs. Zamora

The motions for intervention, both of which adopted the arguments of the main petition, [2] were granted by this Court.[3] Although the effectivity of the Year 2000 GAA has ceased, this Court shall nonetheless proceed to resolve the issues raised in the present case, it being impressed with public interest. The ruling of this Court in the case of The Province of Batangas v. Romulo,[4] wherein GAA provisions relating to the IRA were likewise challenged, is in point, to wit:

Granting arguendo that, as contended by the respondents, the resolution of the case had already been overtaken by supervening events as the IRA, including the LGSEF, for 1999, 2000 and 2001, had already been released and the government is now operating under a new appropriations law, still, there is compelling reason for this Court to resolve the substantive issue raised by the instant petition. Supervening events, whether intended or accidental, cannot prevent the Court from rendering a decision if there is a grave violation of the Constitution. Even in cases where supervening events had made the cases moot, the Court did not hesitate to resolve the legal or constitutional issues raised to formulate controlling principles to guide the bench, bar and public. Another reason justifying the resolution by this Court of the substantive issue now before it is the rule that courts will decide a question otherwise moot and academic if it is capable of repetition, yet evading review. For the GAAs in the coming years may contain provisos similar to those now being sought to be invalidated, and yet, the question may not be decided before another GAA is enacted. It, thus, behooves this Court to make a categorical ruling on the substantive issue now.
[5]

Passing on the arguments of all parties, bearing in mind the dictum that the court should not form a rule of constitutional law broader than is required by the precise facts to which it is applied, [6] this Court finds that only the following issues need to be resolved in the present petition: (1) whether the petition contains proper verifications and certifications against forum-shopping, (2) whether petitioners have the requisite standing to file this suit, and (3) whether the questioned provisions violate the constitutional injunction that the just share of local governments in the national taxes or the IRA shall be automatically released.

Sufficiency of Verification and Certification Against Forum-Shopping Respondents assail as improperly executed petitioners verifications and certifications against forumshopping as they merely state that the allegations of the Petition are true of our knowledge and belief instead of true and correct of our personal knowledge or based on authentic records as required under Rule 7, Section 4 of the Rules of Court.[7] Jurisprudence is on petitioners side. In Decano v. Edu,[8] this Court held:

Respondents finally raise a technical point referring to the allegedly defective verification of the petition filed in the trial court, contending that the clause in the verification statement "that I have read the contents of the said petition; and that [to] the best of my knowledge are true and correct" is insufficient since under section 6 of Rule 7, it is required that the person verifying must have read the pleading and that the allegations thereof are true of his own knowledge. We do not see any reason for rendering the said verification void. The statement to the best of my knowledge are true and correct referring to the allegations in the petition does not mean mere knowledge, information and belief. It

ACORD vs. Zamora

constitutes substantial compliance with the requirement of section 6 of Rule 7, as held in Madrigal vs. Rodas (80 Phil. 252.). At any rate, this petty technicality deserves scant consideration where the question at issue is one purely of law and there is no need of delving into the veracity of the allegations in the petition, which are not disputed at all by respondents. As we have held time and again, imperfections of form and technicalities of procedure are to be disregarded except where substantial rights would otherwise be prejudiced. (Emphasis and underscoring supplied)
Respondents go on to claim that the same verifications were signed by persons who were not authorized by the incorporated cause-oriented groups which they claim to represent, hence, the Petition should be treated as an unsigned pleading. Indeed, only duly authorized natural persons may execute verifications in behalf of juridical entities such as petitioners NGOs and peoples organizations. As this Court held in Santos v. CA, In fact, physical actions, e.g., signing and delivery of documents, may be performed on behalf of the corporate entity only by specifically authorized individuals.[9] Nonetheless, the present petition cannot be treated as an unsigned pleading. For even if the rule that representatives of corporate entities must present the requisite authorization were to be strictly applied, there would remain among the multi-group-petitioners the individuals who validly executed verifications in their own names, namely, petitioners Adelino C. Lavador, Punong Barangay Isabel Mendez, and Punong Barangay Carolina Romanos. At all events, in light of the following ruling of this Court in Shipside Inc. v. CA:[10]

. . . in Loyola, Roadway, and Uy, the Court excused non-compliance with the requirement as to the certificate of non-forum shopping. With more reason should we allow the instant petition since petitioner herein did submit a certification on non-forum shopping, failing only to show proof that the signatory was authorized to do so. That petitioner subsequently submitted a secretarys certificate attesting that Balbin was authorized to file an action on behalf of petitioner likewise mitigates this oversight. It must also be kept in mind that while the requirement of the certificate of non-forum shopping is mandatory, nonetheless the requirements must not be interpreted too literally and thus defeat the objective of preventing the undesirable practice of forum-shopping (Bernardo v. NLRC, 255 SCRA 108 [1996]). Lastly, technical rules of procedure should be used to promote, not frustrate justice. While the swift unclogging of court dockets is a laudable objective, the granting of substantial justice is an even more urgent ideal. (Underscoring supplied),
a too literal interpretation must be avoided if it defeats the objective of preventing the practice of forum shopping.

Standing Respondents assail petitioners standing in this controversy, proffering that it is the local government units each having a separate juridical entity which stand to be injured. The subsequent intervention of the provinces of Batangas and Nueva Ecija which have adopted the arguments of petitioners has, however, made the question of standing academic. [11]

ACORD vs. Zamora

Respondents, contending that petitioners have no cause of action against them as they claim to have no responsibility with respect to the mandate of the GAA provisions, proffer that the committees mentioned in the GAA provisions, namely, the Development Budget Coordinating Committee, Committee on Finance of the Senate, and Committee on Appropriations of the House of Representatives, should instead have been impleaded. Respondents position does not lie. The GAA provisions being challenged were not to be implemented solely by the committees specifically mentioned therein, for they being in the nature of appropriations provisions, they were also to be implemented by the executive branch, particularly the Department of Budget and Management (DBM) and the National Treasurer. The task of the committees related merely to the conduct of the quarterly assessment required in the provisions, and not in the actual release of the IRA which is the duty of the executive. Since the present controversy centers on the proper manner of releasing the IRA, the impleaded respondents are the proper parties to this suit. In fact in earlier petitions likewise involving the constitutionality of provisions of previous general appropriations acts which this Court granted, the therein respondent officials were the same as those in the present case, e.g., Guingona v. Carague[12] and PHILCONSA v. Enriquez.[13]

Constitutionality of the GAA Provisions Article X, Section 6 of the Constitution provides:

SECTION 6. Local government units shall have a just share, as determined by law, in the national taxes which shall be automatically released to them.
Petitioners argue that the GAA violated this constitutional mandate when it made the release of IRA contingent on whether revenue collections could meet the revenue targets originally submitted by the President, rather than making the release automatic. Respondents counterargue that the above constitutional provision is addressed not to the legislature but to the executive, hence, the same does not prevent the legislature from imposing conditions upon the release of the IRA. They cite the exchange between Commissioner (now Chief Justice) Davide and Commissioner Nolledo in the deliberations of the Constitutional Commission on the above-quoted Sec. 6, Art. X of the Constitution, to wit:

THE PRESIDENT. How about the second sentence? MR. DAVIDE. The second sentence would be a new section that would be Section 13. As modified it will read as follows: LOCAL GOVERNMENT UNITS SHALL HAVE A JUST SHARE, AS DETERMINED BY LAW, in the national taxes WHICH SHALL BE automatically PERIODICALLY released to them. MR. NOLLEDO. That will be Section 12, subsection (1) in the amendment. MR. DAVIDE. No, we will just delete that because the second would be another section so Section 12 would only be this: LOCAL GOVERNMENT UNITS SHALL HAVE A JUST SHARE, AS

ACORD vs. Zamora

DETERMINED BY LAW, in the national taxes WHICH SHALL BE automatically PERIODICALLY released to them. MR. NOLLEDO. But the word PERIODICALLY may mean possibly withholding the automatic release to them by adopting certain periods of automatic release. If we use the word automatically without PERIODICALLY, the latter may be already contemplated by automatically. So, the Committee objects to the word PERIODICALLY. MR. DAVIDE. If we do not say PERIODICALLY, it might be very, very difficult to comply with it because these are taxes collected and actually released by the national government every quarter. It is not that upon collection a portion should immediately be released. It is quarterly. Otherwise, the national government will have to remit everyday and that would be very expensive. MR. NOLLEDO. That is not hindered by the word automatically. But if we put automatically and PERIODICALLY at the same time, that means certain periods have to be observed as will be set forth by the Budget Officer thereby negating the meaning of automatically. MR. DAVIDE. On the other hand, if we do not state PERIODICALLY, it may be done every semester; it may be done at the end of the year. It is still automatic release. MR. NOLLEDO. As far as the Committee is concerned, we vigorously object to the word PERIODICALLY. MR. DAVIDE. Only the word PERIODICALLY? MR. NOLLEDO. If the Commissioner is amenable to deleting that, we will accept the amendment. MR. DAVIDE. I will agree to the deletion of the word PERIODICALLY. MR. NOLLEDO. Thank you. The Committee accepts the amendment. (Emphasis supplied)
[14]

In the above exchange of statements, it is clear that although Commissioners Davide and Nolledo held different views with regard to the proper wording of the constitutional provision, they shared a common assumption that the entity which would execute the automatic release of internal revenue was the executive department. Commissioner Davide referred to the national government as the entity that collects and remits internal revenue. Similarly, Commissioner Nolledo alluded to the Budget Officer, who is clearly under the executive branch. Respondents thus infer that the subject constitutional provision merely prevents the executive branch of the government from unilaterally withholding the IRA, but not the legislature from authorizing the executive branch to withhold the same. In the words of respondents, This essentially means that the President or any member of the Executive Department cannot unilaterally, i.e., without the backing of statute, withhold the release of the IRA.[15] Respondents position does not lie.

ACORD vs. Zamora

As the Constitution lays upon the executive the duty to automatically release the just share of local governments in the national taxes, so it enjoins the legislature not to pass laws that might prevent the executive from performing this duty. To hold that the executive branch may disregard constitutional provisions which define its duties, provided it has the backing of statute, is virtually to make the Constitution amendable by statute a proposition which is patently absurd. Moreover, there is merit in the argument of the intervenor Province of Batangas that, if indeed the framers intended to allow the enactment of statutes making the release of IRA conditional instead of automatic, then Article X, Section 6 of the Constitution would have been worded differently. Instead of reading Local government units shall have a just share, as determined by law, in the national taxes which shall be automatically released to them (italics supplied), it would have read as follows, so the Province of Batangas posits:

Local government units shall have a just share, as determined by law, in the national taxes which shall be [automatically] released to them as provided by law, or, Local government units shall have a just share in the national taxes which shall be [automatically] released to them as provided by law, or Local government units shall have a just share, as determined by law, in the national taxes which shall be automatically released to them subject to exceptions Congress may provide. (Italics supplied)
[16]

Since, under Article X, Section 6 of the Constitution, only the just share of local governments is qualified by the words as determined by law, and not the release thereof, the plain implication is that Congress is not authorized by the Constitution to hinder or impede the automatic release of the IRA. Indeed, that Article X, Section 6 of the Constitution did bind the legislative just as much as the executive branch was presumed in the ruling of this Court in the case of The Province of Batangas v. Romulo[17] which is analogous in many respects to the one at bar. In Batangas, the petitioner therein challenged the constitutionality of certain provisos of the GAAs for FY 1999, 2000, and 2001 which set up the Local Government Service Equalization Fund (LGSEF). The LGSEF was a portion of the IRA which was to be released only upon a finding of the Oversight Committee on Devolution that the LGU concerned had complied with the guidelines issued by said committee. This Court measured the challenged legislative acts against Article X, Section 6 and declared them unconstitutional a ruling which presupposes that the legislature, like the executive, is mandated by said constitutional provision to ensure that the just share of local governments in the national taxes are automatically released. Respondents, in further support of their claim that the automatic release requirement in the Constitution constrains only the executive branch and not the legislature, cite three statutory provisions whereby the legislature authorized the executive branch to withhold the IRA in certain circumstances, namely, Section 70 of the Philippine National Police Reform and Reorganization Act of 1998, [18] Section 531(e) of the Local Government Code,[19] and Section 10 of Republic Act 7924 (1995).[20] Towards the same end, respondents also cite Rule XXXII, Article 383(c) of the Rules and Regulations Implementing the Local Government Code.[21] While statutes and implementing rules are entitled to great weight in constitutional construction as indicators of contemporaneous interpretation, such interpretation is not necessarily binding or conclusive on the courts. In Taada v. Cuenco, the Court held:

ACORD vs. Zamora

As a consequence, where the meaning of a constitutional provision is clear, a contemporaneous or practical . . . executive interpretation thereof is entitled to no weight and will not be allowed to distort or in any way change its natural meaning. The reason is that the application of the doctrine of contemporaneous construction is more restricted as applied to the interpretation ofconstitutional provisions than when applied to statutory provisions, and that except as to matters committed by the constitution itself to the discretion of some other department,contemporaneous or practical construction is not necessarily binding upon the courts, even in a doubtful case . Hence, if in the judgment of the court, such construction is erroneous and its further application is not made imperative by any paramount considerations of public policy, it may be rejected. (Emphasis and underscoring supplied, citations omitted)
[22]

The validity of the legislative acts assailed in the present case should, therefore, be assessed in light of Article X, Section 6 of the Constitution. Again, in Batangas,[23] this Court interpreted the subject constitutional provision as follows:

When parsed, it would be readily seen that this provision mandates that (1) the LGUs shall have a just share in the national taxes; (2) the just share shall be determined by law; and (3) the just share shall be automatically released to the LGUs. xxx Websters Third New International Dictionary defines automatic as involunt ary either wholly or to a major extent so that any activity of the will is largely negligible; of a reflex nature; without volition; mechanical; like or suggestive of an automaton. Further, the word automatically is defined as in an automatic manner: without thought or conscious intention. Being automatic, thus, connotes something mechanical, spontaneous and perfunctory. x x x (Emphasis and underscoring supplied)
[24]

Further on, the Court held:

To the Courts mind, the entire process involving the distribution and release of the LGSEF is constitutionally impermissible. The LGSEF is part of the IRA or just share of the LGUs in the national taxes. To subject its distribution and release to the vagaries of the implementing rules and regulations, including the guidelines and mechanisms unilaterally prescribed by the Oversight Committee from time to time, as sanctioned by the assailed provisos in the GAAs of 1999, 2000 and 2001 and the OCD resolutions, makes the release not automatic, a flagrant violation of the constitutional and statutory mandate that the just share of the LGUs shall be automatically released to them. The LGUs are, thus, placed at the mercy of the Oversight Committee. Where the law, the Constitution in this case, is clear and unambiguous, it must be taken to mean exactly what it says, and courts have no choice but to see to it that the mandate is obeyed. Moreover, as correctly posited by the petitioner, the use of the word shall connotes a mandatory order. Its use in a statute denotes an imperative obligation and is inconsistent with the idea of discretion. x x x (Emphasis and underscoring supplied)
[25]

While automatic release implies that the just share of the local governments determined by law should be released to them as a matter of course, the GAA provisions, on the other hand, withhold its

ACORD vs. Zamora

release pending an event which is not even certain of occurring. To rule that the term automatic release contemplates such conditional release would be to strip the term automatic of all meaning. Additionally, to interpret the term automatic release in such a broad manner would be inconsistent with the ruling in Pimentel v. Aguirre.[26] In the said case, the executive withheld the release of the IRA pending an assessment very similar to the one provided in the GAA. This Court ruled that such withholding contravened the constitutional mandate of an automatic release, viz:

Section 4 of AO 372 cannot, however, be upheld. A basic feature of local fiscal autonomy is the automatic release of the shares of LGUs in the national internal revenue. This is mandated by no less than the Constitution. The Local Government Code specifies further that the release shall be made directly to the LGU concerned within five (5) days after every quarter of the year and shall not be subject to any lien or holdback that may be imposed by the national government for whatever purpose. As a rule, the term shall is a word of command that must be given a compulsory meaning. The provision is, therefore, imperative. Section 4 of AO 372, however, orders the withholding, effective January 1, 1998, of 10 percent of the LGUs' IRA pending the assessment and evaluation by the Development Budget Coordinating Committee of the emerging fiscal situation in the country. Such withholding clearly contravenes the Constitution and the law. x x x (Italics in the original; underscoring supplied)
[27]

There is no substantial difference between the withholding of IRA involved in Pimentel and that in the present case, except that here it is the legislature, not the executive, which has authorized the withholding of the IRA. The distinction notwithstanding, the ruling in Pimentel remains applicable. As explained above, Article X, Section 6 of the Constitution the same provision relied upon in Pimentel enjoins both the legislative and executive branches of government. Hence, as in Pimentel, under the same constitutional provision, the legislative is barred from withholding the release of the IRA. It bears stressing, however, that in light of the proviso in Section 284 of the Local Government Code which reads:

Provided, That in the event that the national government incurs an unmanageable public sector deficit, the President of the Philippines is hereby authorized, upon the recommendation of Secretary of Finance, Secretary of Interior and Local Government and Secretary of Budget and Management, and subject to consultation with the presiding officers of both Houses of Congress and the presidents of the "liga," to make the necessary adjustments in the internal revenue allotment of local government units but in no case shall the allotment be less than thirty percent (30%) of the collection of national internal revenue taxes of the third fiscal year preceding the current fiscal year: Provided, further, That in the first year of the effectivity of this Code, the local government units shall, in addition to the thirty percent (30%) internal revenue allotment which shall include the cost of devolved functions for essential public services, be entitled to receive the amount equivalent to the cost of devolved personal services. (Underscoring supplied),
the only possible exception to mandatory automatic release of the IRA is, as held in Batangas:

if the national internal revenue collections for the current fiscal year is less than 40 percent of the collections of the preceding third fiscal year, in which case what should be automatically released shall be a proportionate amount of the collections for the current fiscal year. The adjustment may

ACORD vs. Zamora

even be made on a quarterly basis depending on the actual collections of national internal revenue taxes for the quarter of the current fiscal year. x x x
[28]

A final word. This Court recognizes that the passage of the GAA provisions by Congress was motivated by the laudable intent to lower the budget deficit in line with prudent fiscal management.[29] The pronouncement in Pimentel, however, must be echoed: [T]he rule of law requires that even the best intentions must be carried out within the parameters of the Constitution and the law. Verily, laudable purposes must be carried out by legal methods.[30] WHEREFORE, the petition is GRANTED. XXXVII and LIV Special Provisions 1 and 4 of the Year 2000 GAA are hereby declared unconstitutional insofar as they set apart a portion of the IRA, in the amount of P10 Billion, as part of the UNPROGRAMMED FUND. SO ORDERED.

QC vs Bayantel
Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 162015 March 6, 2006

THE CITY GOVERNMENT OF QUEZON CITY, AND THE CITY TREASURER OF QUEZON CITY, DR. VICTOR B. ENRIGA, Petitioners, vs. BAYAN TELECOMMUNICATIONS, INC., Respondent. DECISION GARCIA,J.: Before the Court, on pure questions of law, is this petition for review on certiorari under Rule 45 of the Rules of Court to nullify and set aside the following issuances of the Regional Trial Court (RTC) of Quezon City, Branch 227, in its Civil Case No. Q-02-47292, to wit: 1) Decision1 dated June 6, 2003, declaring respondent Bayan Telecommunications, Inc. exempt from real estate taxation on its real properties located in Quezon City; and 2) Order2 dated December 30, 2003, denying petitioners motion for reconsideration. The facts: Respondent Bayan Telecommunications, Inc.3 (Bayantel) is a legislative franchise holder under Republic Act (Rep. Act) No. 32594 to establish and operate radio stations for domestic telecommunications, radiophone, broadcasting and telecasting. Of relevance to this controversy is the tax provision of Rep. Act No. 3259, embodied in Section 14 thereof, which reads: SECTION 14. (a) The grantee shall be liable to pay the same taxes on its real estate, buildings and personal property, exclusive of the franchise, as other persons or corporations are now or hereafter may be required by law to pay. (b) The grantee shall further pay to the Treasurer of the Philippines each year, within ten days after the audit and approval of the accounts as prescribed in this Act, one and one-half per centum of all gross receipts from the business transacted under this franchise by the said grantee (Emphasis supplied). On January 1, 1992, Rep. Act No. 7160, otherwise known as the "Local Government Code of 1991" (LGC), took effect. Section 232 of the Code grants local government units within the Metro Manila Area the power to levy tax on real properties, thus: SEC. 232. Power to Levy Real Property Tax. A province or city or a municipality within the Metropolitan Manila Area may levy an annual ad valorem tax on real property such as land, building, machinery and other improvements not hereinafter specifically exempted. Complementing the aforequoted provision is the second paragraph of Section 234 of the same Code which withdrew any exemption from realty tax heretofore granted to or enjoyed by all persons, natural or juridical, to wit: SEC. 234 - Exemptions from Real Property Tax. The following are exempted from payment of the real property tax: xxx xxx xxx

QC vs Bayantel Except as provided herein, any exemption from payment of real property tax previously granted to, or enjoyed by, all persons, whether natural or juridical, including government-owned-or-controlled corporations is hereby withdrawn upon effectivity of this Code (Emphasis supplied).
On July 20, 1992, barely few months after the LGC took effect, Congress enacted Rep. Act No. 7633, amending Bayantels original franchise. The amendatory law (Rep. Act No. 7633) contained the following tax provision: SEC. 11. The grantee, its successors or assigns shall be liable to pay the same taxes on their real estate, buildings and personal property, exclusive of this franchise, as other persons or corporations are now or hereafter may be required by law to pay. In addition thereto, the grantee, its successors or assigns shall pay a franchise tax equivalent to three percent (3%) of all gross receipts of the telephone or other telecommunications businesses transacted under this franchise by the grantee, its successors or assigns and the said percentage shall be in lieu of all taxes on this franchise or earnings thereof. Provided, That the grantee, its successors or assigns shall continue to be liable for income taxes payable under Title II of the National Internal Revenue Code . xxx. [Emphasis supplied] It is undisputed that within the territorial boundary of Quezon City, Bayantel owned several real properties on which it maintained various telecommunications facilities. These real properties, as hereunder described, are covered by the following tax declarations: (a) Tax Declaration Nos. D-096-04071, D-096-04074, D-096-04072 and D-096-04073 pertaining to Bayantels Head Office and Operations Center in Roosevelt St., San Francisco del Monte, Quezon City allegedly the nerve center of petitioners telecommunications franchise operations, said Operation Center housing mainly petitioners Network Operations Group and switching, transmission and related equipment; (b) Tax Declaration Nos. D-124-01013, D-124-00939, D-124-00920 and D-124-00941 covering Bayantels land, building and equipment in Maginhawa St., Barangay East Teachers Village, Quezon City which houses telecommunications facilities; and (c) Tax Declaration Nos. D-011-10809, D-011-10810, D-011-10811, and D-011-11540 referring to Bayantels Exchange Center located in Proj. 8, Brgy. Bahay Toro, Tandang Sora, Quezon City which houses the Network Operations Group and cover switching, transmission and other related equipment. In 1993, the government of Quezon City, pursuant to the taxing power vested on local government units by Section 5, Article X of the 1987 Constitution, infra, in relation to Section 232 of the LGC, supra, enacted City Ordinance No. SP91, S-93, otherwise known as the Quezon City Revenue Code (QCRC),5 imposing, under Section 5 thereof, a real property tax on all real properties in Quezon City, and, reiterating in its Section 6, the withdrawal of exemption from real property tax under Section 234 of the LGC, supra. Furthermore, much like the LGC, the QCRC, under its Section 230, withdrew tax exemption privileges in general, as follows: SEC. 230. Withdrawal of Tax Exemption Privileges. Unless otherwise provided in this Code, tax exemptions or incentives granted to, or presently enjoyed by all persons, whether natural or juridical, including government owned or controlled corporations, except local water districts, cooperatives duly registered under RA 6938, non-stock and nonprofit hospitals and educational institutions, business enterprises certified by the Board of Investments (BOI) as pioneer or non-pioneer for a period of six (6) and four (4) years, respectively, are hereby withdrawn effective upon approval of this Code (Emphasis supplied). Conformably with the Citys Revenue Code, new tax declarations for Bayantels real properties in Quezon City were issued by the City Assessor and were received by Bayantel on August 13, 1998, except one (Tax Declaration No. 12401013) which was received on July 14, 1999. Meanwhile, on March 16, 1995, Rep. Act No. 7925,6 otherwise known as the "Public Telecommunications Policy Act of the Philippines," envisaged to level the playing field among telecommunications companies, took effect. Section 23 of the Act provides: SEC. 23. Equality of Treatment in the Telecommunications Industry. Any advantage, favor, privilege, exemption, or immunity granted under existing franchises, or may hereafter be granted, shall ipso facto become part of previously

QC vs Bayantel granted telecommunications franchises and shall be accorded immediately and unconditionally to the grantees of such franchises: Provided, however, That the foregoing shall neither apply to nor affect provisions of telecommunications franchises concerning territory covered by the franchise, the life span of the franchise, or the type of service authorized by the franchise.
On January 7, 1999, Bayantel wrote the office of the City Assessor seeking the exclusion of its real properties in the city from the roll of taxable real properties. With its request having been denied, Bayantel interposed an appeal with the Local Board of Assessment Appeals (LBAA). And, evidently on its firm belief of its exempt status, Bayantel did not pay the real property taxes assessed against it by the Quezon City government. On account thereof, the Quezon City Treasurer sent out notices of delinquency for the total amount ofP43,878,208.18, followed by the issuance of several warrants of levy against Bayantels properties preparatory to thei r sale at a public auction set on July 30, 2002. Threatened with the imminent loss of its properties, Bayantel immediately withdrew its appeal with the LBAA and instead filed with the RTC of Quezon City a petition for prohibition with an urgent application for a temporary restraining order (TRO) and/or writ of preliminary injunction, thereat docketed as Civil Case No. Q-02-47292, which was raffled to Branch 227 of the court. On July 29, 2002, or in the eve of the public auction scheduled the following day, the lower court issued a TRO, followed, after due hearing, by a writ of preliminary injunction via its order of August 20, 2002. And, having heard the parties on the merits, the same court came out with its challenged Decision of June 6, 2003, the dispositive portion of which reads: WHEREFORE, premises considered, pursuant to the enabling franchise under Section 11 of Republic Act No. 7633, the real estate properties and buildings of petitioner [now, respondent Bayantel] which have been admitted to be used in the operation of petitioners franchise described in the following tax declarations are hereby DECLARED exempt from real estate taxation: (1) Tax Declaration No. D-096-04071 (2) Tax Declaration No. D-096-04074 (3) Tax Declaration No. D-124-01013 (4) Tax Declaration No. D-011-10810 (5) Tax Declaration No. D-011-10811 (6) Tax Declaration No. D-011-10809 (7) Tax Declaration No. D-124-00941 (8) Tax Declaration No. D-124-00940 (9) Tax Declaration No. D-124-00939 (10) Tax Declaration No. D-096-04072 (11) Tax Declaration No. D-096-04073 (12) Tax Declaration No. D-011-11540

QC vs Bayantel The preliminary prohibitory injunction issued in the August 20, 2002 Order of this Court is hereby made permanent. Since this is a resolution of a purely legal issue, there is no pronouncement as to costs.
SO ORDERED. Their motion for reconsideration having been denied by the court in its Order dated December 30, 2003, petitioners elevated the case directly to this Court on pure questions of law, ascribing to the lower court the following errors: I. [I]n declaring the real properties of respondent exempt from real property taxes notwithstanding the fact that the tax exemption granted to Bayantel in its original franchise had been withdrawn by the [LGC] and that the said exemption was not restored by the enactment of RA 7633. II. [In] declaring the real properties of respondent exempt from real property taxes notwithstanding the enactment of the [QCRC] which withdrew the tax exemption which may have been granted by RA 7633. III. [In] declaring the real properties of respondent exempt from real property taxes notwithstanding the vague and ambiguous grant of tax exemption provided under Section 11 of RA 7633. IV. [In] declaring the real properties of respondent exempt from real property taxes notwithstanding the fact that [it] had failed to exhaust administrative remedies in its claim for real property tax exemption. (Words in bracket added.) As we see it, the errors assigned may ultimately be reduced to two (2) basic issues, namely: 1. Whether or not Bayantels real properties in Quezon City are exempt from real property taxes under its legislative franchise; and 2. Whether or not Bayantel is required to exhaust administrative remedies before seeking judicial relief with the trial court. We shall first address the second issue, the same being procedural in nature. Petitioners argue that Bayantel had failed to avail itself of the administrative remedies provided for under the LGC, adding that the trial court erred in giving due course to Bayantels petition for prohibition. To petitioners, the appeal mechanics under the LGC constitute Bayantels plain and speedy remedy in this case. The Court does not agree. Petitions for prohibition are governed by the following provision of Rule 65 of the Rules of Court: SEC. 2. Petition for prohibition. When the proceedings of any tribunal, are without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered commanding the respondent to desist from further proceedings in the action or matter specified therein, or otherwise, granting such incidental reliefs as law and justice may require. With the reality that Bayantels real properties were already levied upon on account of its nonpayment of real estate taxes thereon, the Court agrees with Bayantel that an appeal to the LBAA is not a speedy and adequate remedy within the context of the aforequoted Section 2 of Rule 65. This is not to mention of the auction sale of said properties already scheduled on July 30, 2002. Moreover, one of the recognized exceptions to the exhaustion- of-administrative remedies rule is when, as here, only legal issues are to be resolved. In fact, the Court, cognizant of the nature of the questions presently involved, gave due course to the instant petition. As the Court has said in Ty vs. Trampe:7

QC vs Bayantel xxx. Although as a rule, administrative remedies must first be exhausted before resort to judicial action can prosper, there is a well-settled exception in cases where the controversy does not involve questions of fact but only of law. xxx.
Lest it be overlooked, an appeal to the LBAA, to be properly considered, required prior payment under protest of the amount of P43,878,208.18, a figure which, in the light of the then prevailing Asian financial crisis, may have been difficult to raise up. Given this reality, an appeal to the LBAA may not be considered as a plain, speedy and adequate remedy. It is thus understandable why Bayantel opted to withdraw its earlier appeal with the LBAA and, instead, filed its petition for prohibition with urgent application for injunctive relief in Civil Case No. Q-02-47292. The remedy availed of by Bayantel under Section 2, Rule 65 of the Rules of Court must be upheld. This brings the Court to the more weighty question of whether or not Bayantels real properties in Quezon City are, under its franchise, exempt from real property tax. The lower court resolved the issue in the affirmative, basically owing to the phrase "exclusive of this franchise" found in Section 11 of Bayantels amended franchise, Rep. Act No. 7633. To petitioners, however, the language of Section 11 of Rep. Act No. 7633 is neither clear nor unequivocal. The elaborate and extensive discussion devoted by the trial court on the meaning and import of said phrase, they add, suggests as much. It is petitioners thesis that Bayantel was in no time given any express exemption from the payment of real property tax under its amendatory franchise. There seems to be no issue as to Bayantels exemption from real estate taxes by virtue of the term "exclusive of the franchise" qualifying the phrase "same taxes on its real estate, buildings and personal property," found in Section 14, supra, of its franchise, Rep. Act No. 3259, as originally granted. The legislative intent expressed in the phrase "exclusive of this franchise" cannot be construed other than distinguishing between two (2) sets of properties, be they real or personal, owned by the franchisee, namely, (a) those actually, directly and exclusively used in its radio or telecommunications business, and (b) those properties which are not so used. It is worthy to note that the properties subject of the present controversy are only those which are admittedly falling under the first category. To the mind of the Court, Section 14 of Rep. Act No. 3259 effectively works to grant or delegate to local governments of Congress inherent power to tax the franchisees properties belonging to the second group of properties indicated above, that is, all properties which, "exclusive of this franchise," are not actually and directly used in the pursuit of its franchise. As may be recalled, the taxing power of local governments under both the 1935 and the 1973 Constitutions solely depended upon an enabling law. Absent such enabling law, local government units were without authority to impose and collect taxes on real properties within their respective territorial jurisdictions. While Section 14 of Rep. Act No. 3259 may be validly viewed as an implied delegation of power to tax, the delegation under that provision, as couched, is limited to impositions over properties of the franchisee which are not actually, directly and exclusively used in the pursuit of its franchise. Necessarily, other properties of Bayantel directly used in the pursuit of its business are beyond the pale of the delegated taxing power of local governments. In a very real sense, therefore, real properties of Bayantel, save those exclusive of its franchise, are subject to realty taxes. Ultimately, therefore, the inevitable result was that all realties which are actually, directly and exclusively used in the operation of its franchise are "exempted" from any property tax. Bayantels franchise being national in character, the "exemption" thus granted under Section 14 of Rep. Act No. 3259 applies to all its real or personal properties found anywhere within the Philippine archipelago. However, with the LGCs taking effect on January 1, 1992, Bayantels "exemption" from real estate taxes for properties of whatever kind located within the Metro Manila area was, by force of Section 234 of the Code, supra, expressly withdrawn. But, not long thereafter, however, or on July 20, 1992, Congress passed Rep. Act No. 7633 amending Bayantels original franchise. Worthy of note is that Section 11 of Rep. Act No. 7633 is a virtual reenacment of the tax provision, i.e., Section 14, supra, of Bayantels original franchise under Rep. Act No. 3259. Stated otherwise, Section 14 of Rep. Act No. 3259 which was deemed impliedly repealed by Section 234 of the LGC was expressly revived under Section 14 of Rep. Act No. 7633. In concrete terms, the realty tax exemption heretofore enjoyed by Bayantel under its original franchise, but subsequently withdrawn by force of Section 234 of the LGC, has been restored by Section 14 of Rep. Act No. 7633.

QC vs Bayantel The Court has taken stock of the fact that by virtue of Section 5, Article X of the 1987 Constitution,8 local governments are empowered to levy taxes. And pursuant to this constitutional empowerment, juxtaposed with Section 2329 of the LGC, the Quezon City government enacted in 1993 its local Revenue Code, imposing real property tax on all real properties found within its territorial jurisdiction. And as earlier stated, the Citys Revenue Code, just like the LGC, expressly withdrew, under Section 230 thereof, supra, all tax exemption privileges in general.
This thus raises the question of whether or not the Citys Revenue Code pursuant to which the city treasurer of Quezon City levied real property taxes against Bayantels real properties located within the City effectively withdrew the tax exemption enjoyed by Bayantel under its franchise, as amended. Bayantel answers the poser in the negative arguing that once again it is only "liable to pay the same taxes, as any other persons or corporations on all its real or personal properties, exclusive of its franchise." Bayantels posture is well-taken. While the system of local government taxation has changed with the onset of the 1987 Constitution, the power of local government units to tax is still limited. As we explained in Mactan Cebu International Airport Authority:10 The power to tax is primarily vested in the Congress; however, in our jurisdiction, it may be exercised by local legislative bodies, no longer merely be virtue of a valid delegation as before, but pursuant to direct authority conferred by Section 5, Article X of the Constitution. Under the latter, the exercise of the power may be subject to such guidelines and limitations as the Congress may provide which, however, must be consistent with the basic policy of local autonomy. (at p. 680; Emphasis supplied.) Clearly then, while a new slant on the subject of local taxation now prevails in the sense that the former doctrine of local government units delegated power to tax had been effectively modified with Article X, Section 5 of the 1987 Constitution now in place, .the basic doctrine on local taxation remains essentially the same. For as the Court stressed in Mactan, "the power to tax is [still] primarily vested in the Congress." This new perspective is best articulated by Fr. Joaquin G. Bernas, S.J., himself a Commissioner of the 1986 Constitutional Commission which crafted the 1987 Constitution, thus: What is the effect of Section 5 on the fiscal position of municipal corporations? Section 5 does not change the doctrine that municipal corporations do not possess inherent powers of taxation. What it does is to confer municipal corporations a general power to levy taxes and otherwise create sources of revenue. They no longer have to wait for a statutory grant of these powers. The power of the legislative authority relative to the fiscal powers of local governments has been reduced to the authority to impose limitations on municipal powers. Moreover, these limitations must be "consistent with the basic policy of local autonomy." The important legal effect of Section 5 is thus to reverse the principle that doubts are resolved against municipal corporations. Henceforth, in interpreting statutory provisions on municipal fiscal powers, doubts will be resolved in favor of municipal corporations. It is understood, however, that taxes imposed by local government must be for a public purpose, uniform within a locality, must not be confiscatory, and must be within the jurisdiction of the local unit to pass.11(Emphasis supplied). In net effect, the controversy presently before the Court involves, at bottom, a clash between the inherent taxing power of the legislature, which necessarily includes the power to exempt, and the local governments delegated power to tax under the aegis of the 1987 Constitution. Now to go back to the Quezon City Revenue Code which imposed real estate taxes on all real properties within the citys territory and removed exemptions theretofore "previously granted to, or presently enjoyed by all persons, whether natural or juridical .,"12 there can really be no dispute that the power of the Quezon City Government to tax is limited by Section 232 of the LGC which expressly provides that "a province or city or municipality within the Metropolitan Manila Area may levy an annual ad valorem tax on real property such as land, building, machinery, and other improvement not hereinafter specifically exempted." Under this law, the Legislature highlighted its power to thereafter exempt certain realties from the taxing power of local government units. An interpretation denying Congress such power to exempt would reduce the phrase "not hereinafter specifically exempted" as a pure jargon, without meaning whatsoever. Needless to state, such absurd situation is unacceptable.

QC vs Bayantel For sure, in Philippine Long Distance Telephone Company, Inc. (PLDT) vs. City of Davao,13 this Court has upheld the power of Congress to grant exemptions over the power of local government units to impose taxes. There, the Court wrote:
Indeed, the grant of taxing powers to local government units under the Constitution and the LGC does not affect the power of Congress to grant exemptions to certain persons, pursuant to a declared national policy. The legal effect of the constitutional grant to local governments simply means that in interpreting statutory provisions on municipal taxing powers, doubts must be resolved in favor of municipal corporations. (Emphasis supplied.) As we see it, then, the issue in this case no longer dwells on whether Congress has the power to exempt Bayantels properties from realty taxes by its enactment of Rep. Act No. 7633 which amended Bayantels original franchise. The more decisive question turns on whether Congress actually did exempt Bayantels properties at all by virtue of Section 11 of Rep. Act No. 7633. Admittedly, Rep. Act No. 7633 was enacted subsequent to the LGC. Perfectly aware that the LGC has already withdrawn Bayantels former exemption from realty taxes, Congress opted to pass Rep. Act No. 7633 using, under Section 11 thereof, exactly the same defining phrase "exclusive of this franchise" which was the basis for Bayantels exemption from realty taxes prior to the LGC. In plain language, Section 11 of Rep. Act No. 7633 states that "the grantee, its successors or assigns shall be liable to pay the same taxes on their real estate, buildings and personal property, exclusive of this franchise, as other persons or corporations are now or hereafter may be required by law to pay." The Court views this subsequent piece of legislation as an express and real intention on the part of Congress to once again remove from the LGCs delegated taxing power, all of the franchisees (Bayantels) properties that are actually, directly and exclusively used in the pursuit of its franchise. WHEREFORE, the petition is DENIED. No pronouncement as to costs. SO ORDERED.

Tan vs. Perena

EN BANC

[G.R. No. 138810. September 29, 2004]

BATANGAS CATV, INC., petitioner, vs. THE COURT OF APPEALS, THE BATANGAS CITY SANGGUNIANG PANLUNGSOD and BATANGAS CITY MAYOR, respondents. DECISION
SANDOVAL-GUTIERREZ, J.:

In the late 1940s, John Walson, an appliance dealer in Pennsylvania, suffered a decline in the sale of television (tv) sets because of poor reception of signals in his community. Troubled, he built an antenna on top of a nearby mountain. Using coaxial cable lines, he distributed the tv signals from the antenna to the homes of his customers. Walsons innovative idea improved his sales and at the same time gave birth to a new telecommunication system -- the Community Antenna Television (CATV) or Cable Television.[1] This technological breakthrough found its way in our shores and, like in its country of origin, it spawned legal controversies, especially in the field of regulation. The case at bar is just another occasion to clarify a shady area. Here, we are tasked to resolve the inquiry -- may a local government unit (LGU) regulate the subscriber rates charged by CATV operators within its territorial jurisdiction? This is a petition for review on certiorari filed by Batangas CATV, Inc. (petitioner herein) against the Sangguniang Panlungsod and the Mayor of Batangas City (respondents herein) assailing the Court of Appeals (1) Decision[2] dated February 12, 1999 and (2) Resolution [3] dated May 26, 1999, in CA-G.R. CV No. 52361.[4] The Appellate Court reversed and set aside the Judgment[5] dated October 29, 1995 of the Regional Trial Court (RTC), Branch 7, Batangas City in Civil Case No. 4254, [6]holding that neither of the respondents has the power to fix the subscriber rates of CATV operators, such being outside the scope of the LGUs power. The antecedent facts are as follows: On July 28, 1986, respondent Sangguniang Panlungsod enacted Resolution No. 210[7] granting petitioner a permit to construct, install, and operate a CATV system in Batangas City. Section 8 of the Resolution provides that petitioner is authorized to charge its subscribers the maximum rates specified therein, provided, however, that any increase of rates shall be subject to the approval of the Sangguniang Panlungsod.[8] Sometime in November 1993, petitioner increased its subscriber rates from P88.00 to P180.00 per month. As a result, respondent Mayor wrote petitioner a letter[9]threatening to cancel its permit unless it secures the approval of respondent Sangguniang Panlungsod, pursuant to Resolution No. 210. Petitioner then filed with the RTC, Branch 7, Batangas City, a petition for injunction docketed as Civil Case No. 4254. It alleged that respondent Sangguniang Panlungsod has no authority to regulate the subscriber rates charged by CATV operators because under Executive Order No. 205, the National Telecommunications Commission (NTC) has the sole authority to regulate the CATV operation in the Philippines.

Tan vs. Perena

On October 29, 1995, the trial court decided in favor of petitioner, thus:

WHEREFORE, as prayed for, the defendants, their representatives, agents, deputies or other persons acting on their behalf or under their instructions, are hereby enjoined from canceling plaintiffs permit to operate a Cable Antenna Television (CATV) system in the City of Batangas or its environs or in any manner, from interfering with the authority and power of the National Telecommunications Commission to grant franchises to operate CATV systems to qualified applicants, and the right of plaintiff in fixing its service rates which needs no prior approval of the Sangguniang Panlungsod of Batangas City. The counterclaim of the plaintiff is hereby dismissed. No pronouncement as to costs. IT IS SO ORDERED.
[10]

The trial court held that the enactment of Resolution No. 210 by respondent violates the States deregulation policy as set forth by then NTC Commissioner Jose Luis A. Alcuaz in his Memorandum dated August 25, 1989. Also, it pointed out that the sole agency of the government which can regulate CATV operation is the NTC, and that the LGUs cannot exercise regulatory power over it without appropriate legislation. Unsatisfied, respondents elevated the case to the Court of Appeals, docketed as CA-G.R. CV No. 52361. On February 12, 1999, the Appellate Court reversed and set aside the trial courts D ecision, ratiocinating as follows:

Although the Certificate of Authority to operate a Cable Antenna Television (CATV) System is granted by the National Telecommunications Commission pursuant to Executive Order No. 205, this does not preclude the Sangguniang Panlungsod from regulating the operation of the CATV in their locality under the powers vested upon it by Batas Pambansa Bilang 337, otherwise known as the Local Government Code of 1983. Section 177 (now Section 457 paragraph 3 (ii) of Republic Act 7160) provides: Section 177. Powers and Duties The Sangguniang Panlungsod shall: a) Enact such ordinances as may be necessary to carry into effect and discharge the responsibilities conferred upon it by law, and such as shall be necessary and proper to provide for health and safety, comfort and convenience, maintain peace and order, improve the morals, and promote the prosperity and general welfare of the community and the inhabitants thereof, and the protection of property therein; xxx d) Regulate, fix the license fee for, and tax any business or profession being carried on and exercised within the territorial jurisdiction of the city, except travel agencies, tourist guides, tourist transports, hotels, resorts, de luxe restaurants, and tourist inns of international standards which shall remain under the licensing and regulatory power of the Ministry of

Tan vs. Perena

Tourism which shall exercise such authority without infringement on the taxing and regulatory powers of the city government; Under cover of the General Welfare Clause as provided in this section, Local Government Units can perform just about any power that will benefit their constituencies. Thus, local government units can exercise powers that are: (1) expressly granted; (2) necessarily implied from the power that is expressly granted; (3) necessary, appropriate or incidental for its efficient and effective governance; and (4) essential to the promotion of the general welfare of their inhabitants. (Pimentel, The Local Government Code of 1991, p. 46) Verily, the regulation of businesses in the locality is expressly provided in the Local Government Code. The fixing of service rates is lawful under the General Welfare Clause. Resolution No. 210 granting appellee a permit to construct, install and operate a community antenna television (CATV) system in Batangas City as quoted earlier in this decision, authorized the grantee to impose charges which cannot be increased except upon approval of the Sangguniang Bayan. It further provided that in case of violation by the grantee of the terms and conditions/requirements specifically provided therein, the City shall have the right to withdraw the franchise. Appellee increased the service rates from EIGHTY EIGHT PESOS (P88.00) to ONE HUNDRED EIGHTY PESOS (P180.00) (Records, p. 25) without the approval of appellant. Such act breached Resolution No. 210 which gives appellant the right to withdraw the permit granted to appellee.
[11]

Petitioner filed a motion for reconsideration but was denied. [12] Hence, the instant petition for review on certiorari anchored on the following assignments of error:
I

THE COURT OF APPEALS ERRED IN HOLDING THAT THE GENERAL WELFARE CLAUSE OF THE LOCAL GOVERNMENT CODE AUTHORIZES RESPONDENT SANGGUNIANG PANLUNGSOD TO EXERCISE THE REGULATORY FUNCTION SOLELY LODGED WITH THE NATIONAL TELECOMMUNICATIONS COMMISSION UNDER EXECUTIVE ORDER NO. 205, INCLUDING THE AUTHORITY TO FIX AND/OR APPROVE THE SERVICE RATES OF CATV OPERATORS; AND
II

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

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

Tan vs. Perena

Respondents counter that the Appellate Court did not commit any reversible error in rendering the assailed Decision. First, Resolution No. 210 was enacted pursuant to Section 177(c) and (d) of Batas Pambansa Bilang 337, the Local Government Code of 1983, which authorizes LGUs to regulate businesses. The term businesses necessarily includes the CATV industry. And second, Resolution No. 210 is in the nature of a contract between petitioner and respondents, it being a grant to the former of a franchise to operate a CATV system. To hold that E.O. No. 205 amended its terms would violate the constitutional prohibition against impairment of contracts.[14] The petition is impressed with merit. Earlier, we posed the question -- may a local government unit (LGU) regulate the subscriber rates charged by CATV operators within its territorial jurisdiction? A review of pertinent laws and jurisprudence yields a negative answer. President Ferdinand E. Marcos was the first one to place the CATV industry under the regulatory power of the national government.[15] On June 11, 1978, he issuedPresidential Decree (P.D.) No. 1512[16] establishing a monopoly of the industry by granting Sining Makulay, Inc., an exclusive franchise to operate CATV system in any place within the Philippines. Accordingly, it terminated all franchises, permits or certificates for the operation of CATV system previously granted by local governments or by any instrumentality or agency of the national government. [17] Likewise, it prescribed the subscriber rates to be charged by Sining Makulay, Inc.to its customers.[18] On July 21, 1979, President Marcos issued Letter of Instruction (LOI) No. 894 vesting upon the Chairman of the Board of Communications direct supervision over the operations of Sining Makulay, Inc. Three days after, he issued E.O. No. 546[19] integrating the Board of Communications[20] and the Telecommunications Control Bureau[21] to form a single entity to be known as the National Telecommunications Commission. Two of its assigned functions are:

a. Issue Certificate of Public Convenience for the operation of communications utilities and services, radio communications systems, wire or wireless telephone or telegraph systems, radio and television broadcasting system and other similar public utilities; b. Establish, prescribe and regulate areas of operation of particular operators of public service communications; and determine and prescribe charges or rates pertinent to the operation of such public utility facilities and services except in cases where charges or rates are established by international bodies or associations of which the Philippines is a participating member or by bodies recognized by the Philippine Government as the proper arbiter of such charges or rates;
Although Sining Makulay Inc.s exclusive franchise had a life term of 25 years, it was cut short by the advent of the 1986 Revolution. Upon President Corazon C. Aquinos assumption of power, she issued E.O. No. 205[22] opening the CATV industry to all citizens of the Philippines. It mandated the NTC to grant Certificates of Authority to CATV operators and to issue the necessary implementing rules and regulations. On September 9, 1997, President Fidel V. Ramos issued E.O. No. 436[23] prescribing policy guidelines to govern CATV operation in the Philippines. Cast in more definitive terms, it restated the NTCs regulatory powers over CATV operations, thus:

SECTION 2. The regulation and supervision of the cable television industry in the Philippines shall remain vested solely with the National Telecommunications Commission (NTC).

Tan vs. Perena

SECTION 3. Only persons, associations, partnerships, corporations or cooperatives, granted a Provisional Authority or Certificate of Authority by the Commission may install, operate and maintain a cable television system or render cable television service within a service area.
Clearly, it has been more than two decades now since our national government, through the NTC, assumed regulatory power over the CATV industry. Changes in the political arena did not alter the trend. Instead, subsequent presidential issuances further reinforced the NTCs power. Significantly, President Marcos and President Aquino, in the exercise of their legislative power, issued P.D. No. 1512, E.O. No. 546 and E.O. No. 205. Hence, they have the force and effect of statutes or laws passed by Congress.[24] That the regulatory power stays with the NTC is also clear from President Ramos E.O. No. 436 mandating that the regulation and supervision of the CATV industry shall remain vest ed solely in the NTC. Blacks Law Dictionary defines sole as without another or others.[25] The logical conclusion, therefore, is that in light of the above laws and E.O. No. 436, the NTC exercises regulatory power over CATV operators to the exclusion of other bodies. But, lest we be misunderstood, nothing herein should be interpreted as to strip LGUs of their general power to prescribe regulations under the general welfare clause of the Local Government Code. It must be emphasized that when E.O. No. 436 decrees that the regulatory power shall be vested solely in the NTC, it pertains to the regulatory power over those matters which are peculiarly within the NTCs competence, such as, the: (1) determination of rates, (2) issuance of certificates of authority, (3)establishment of areas of operation, (4) examination and assessment of the legal, technical and financial qualifications of applicant operators, (5) granting of permits for the use of frequencies, (6) regulation of ownership and operation, (7) adjudication of issues arising from its functions, and (8) other similar matters.[26] Within these areas, the NTC reigns supreme as it possesses the exclusive power to regulate -- a power comprising varied acts, such as to fix, establish, or control; to adjust by rule, method or established mode; to direct by rule or restriction; or to subject to governing principles or laws.[27] Coincidentally, respondents justify their exercise of regulatory power over petitioners CATV operation under the general welfare clause of the Local Government Code of 1983. The Court of Appeals sustained their stance. There is no dispute that respondent Sangguniang Panlungsod, like other local legislative bodies, has been empowered to enact ordinances and approve resolutions under the general welfare clause of B.P. Blg. 337, the Local Government Code of 1983. That it continues to posses such power is clear under the new law, R.A. No. 7160 (the Local Government Code of 1991). Section 16 thereof provides:

SECTION 16. General Welfare. Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall ensure and support, among others, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant, scientific and technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants.
In addition, Section 458 of the same Code specifically mandates:

Tan vs. Perena

SECTION 458. Powers, Duties, Functions and Compensation. (a) The Sangguniang Panlungsod, as the legislative body of the city, shall enact ordinances, approve resolutions and appropriate funds for the general welfare of the city and its inhabitants pursuant to Section 16 of this Code and in the proper exercise of the corporate powers of the city as provided for under Section 22 of this Code, x x x:
The general welfare clause is the delegation in statutory form of the police power of the State to LGUs.[28] Through this, LGUs may prescribe regulations to protect the lives, health, and property of their constituents and maintain peace and order within their respective territorial jurisdictions. Accordingly, we have upheld enactments providing, for instance, the regulation of gambling, [29] the occupation of rig drivers,[30] the installation and operation of pinball machines,[31] the maintenance and operation of cockpits,[32] the exhumation and transfer of corpses from public burial grounds, [33] and the operation of hotels, motels, and lodging houses[34] as valid exercises by local legislatures of the police power under the general welfare clause. Like any other enterprise, CATV operation maybe regulated by LGUs under the general welfare clause. This is primarily because the CATV system commits the indiscretion of crossing public properties. (It uses public properties in order to reach subscribers.) The physical realities of constructing CATV system the use of public streets, rights of ways, the founding of structures, and the parceling of large regions allow an LGU a certain degree of regulation over CATV operators.[35] This is the same regulation that it exercises over all private enterprises within its territory. But, while we recognize the LGUs power under the general welfare clause, we cannot sustain Resolution No. 210. We are convinced that respondents strayed from the well recognized limits of its power. The flaws in Resolution No. 210 are: (1) it violates the mandate of existing laws and (2) it violates the States deregulation policy over the CATV industry.
I.

Resolution No. 210 is an enactment of an LGU acting only as agent of the national legislature. Necessarily, its act must reflect and conform to the will of its principal. To test its validity, we must apply the particular requisites of a valid ordinance as laid down by the accepted principles governing municipal corporations. [36] Speaking for the Court in the leading case of United States vs. Abendan,[37] Justice Moreland said: An ordinance enacted by virtue of the general welfare clause is valid, unless it contravenes the fundamental law of the Philippine Islands, or an Act of the Philippine Legislature, or unless it is against public policy, or is unreasonable, oppressive, partial, discriminating, or in derogation of common right. In De la Cruz vs. Paraz,[38] we laid the general rule that ordinances passed by virtue of the implied power found in the general welfare clause must be reasonable, consonant with the general powers and purposes of the corporation, and not inconsistent with the laws or policy of the State. The apparent defect in Resolution No. 210 is that it contravenes E.O. No. 205 and E.O. No. 436 insofar as it permits respondent Sangguniang Panlungsod to usurp a power exclusively vested in the NTC, i.e., the power to fix the subscriber rates charged by CATV operators. As earlier discussed, the fixing of subscriber rates is definitely one of the matters within the NTCs exclusive domain. In this regard, it is appropriate to stress that where the state legislature has made provision for the regulation of conduct, it has manifested its intention that the subject matter shall be fully covered by the statute, and that a municipality, under its general powers, cannot regulate the same conduct. [39] In Keller vs. State,[40] it was held that:Where there is no express power in the charter of a municipality authorizing it to adopt ordinances regulating certain matters which are specifically covered by a general statute, a municipal ordinance, insofar as it attempts to regulate the subject which is

Tan vs. Perena

completely covered by a general statute of the legislature, may be rendered invalid. x x x Where the subject is of statewide concern, and the legislature has appropriated the field and declared the rule, its declaration is binding throughout the State. A reason advanced for this view is that such ordinances are in excess of the powers granted to the municipal corporation. [41] Since E.O. No. 205, a general law, mandates that the regulation of CATV operations shall be exercised by the NTC, an LGU cannot enact an ordinance or approve a resolution in violation of the said law. It is a fundamental principle that municipal ordinances are inferior in status and subordinate to the laws of the state. An ordinance in conflict with a state law of general character and statewide application is universally held to be invalid.[42] The principle is frequently expressed in the declaration that municipal authorities, under a general grant of power, cannot adopt ordinances which infringe the spirit of a state law or repugnant to the general policy of the state.[43] In every power to pass ordinances given to a municipality, there is an implied restriction that the ordinances shall be consistent with the general law.[44] In the language of Justice Isagani Cruz (ret.), this Court, inMagtajas vs. Pryce Properties Corp., Inc.,[45] ruled that:

The rationale of the requirement that the ordinances should not contravene a statute is obvious. Municipal governments are only agents of the national government. Local councils exercise only delegated legislative powers conferred on them by Congress as the national lawmaking body. The delegate cannot be superior to the principal or exercise powers higher than those of the latter. It is a heresy to suggest that the local government units can undo the acts of Congress, from which they have derived their power in the first place, and negate by mere ordinance the mandate of the statute. Municipal corporations owe their origin to, and derive their po wers and rights wholly from the legislature. It breathes into them the breath of life, without which they cannot exist. As it creates, so it may destroy. As it may destroy, it may abridge and control. Unless there is some constitutional limitation on the right, the legislature might, by a single act, and if we can suppose it capable of so great a folly and so great a wrong, sweep from existence all of the municipal corporations in the State, and the corporation could not prevent it. We know of no limitation on the right so far as to the corporation themselves are concerned. They are, so to phrase it, the mere tenants at will of the legislature. This basic relationship between the national legislature and the local government units has not been enfeebled by the new provisions in the Constitution strengthening the policy of local autonomy. Without meaning to detract from that policy, we here confirm that Congress retains control of the local government units although in significantly reduced degree now than under our previous Constitutions. The power to create still includes the power to destroy. The power to grant still includes the power to withhold or recall. True, there are certain notable innovations in the Constitution, like the direct conferment on the local government units of the power to tax, which cannot now be withdrawn by mere statute. By and large, however, the national legislature is still the principal of the local government units, which cannot defy its will or modify or violate it.
Respondents have an ingenious retort against the above disquisition. Their theory is that the regulatory power of the LGUs is granted by R.A. No. 7160 (the Local Government Code of 1991), a handiwork of the national lawmaking authority. They contend that R.A. No. 7160 repealed E.O. No. 205 (issued by President Aquino). Respondents argument espouses a bad precedent. To say that LGUs

Tan vs. Perena

exercise the same regulatory power over matters which are peculiarly within the NTCs competence is to promote a scenario of LGUs and the NTC locked in constant clash over the appropriate regulatory measure on the same subject matter. LGUs must recognize that technical matters concerning CATV operation are within the exclusive regulatory power of the NTC. At any rate, we find no basis to conclude that R.A. No. 7160 repealed E.O. No. 205, either expressly or impliedly. It is noteworthy that R.A. No. 7160 repealing clause, which painstakingly mentions the specific laws or the parts thereof which are repealed, does not include E.O. No. 205, thus:

SECTION 534. Repealing Clause. (a) Batas Pambansa Blg. 337, otherwise known as the Local Government Code." Executive Order No. 112 (1987), and Executive Order No. 319 (1988) are hereby repealed. (b) Presidential Decree Nos. 684, 1191, 1508 and such other decrees, orders, instructions, memoranda and issuances related to or concerning the barangay are hereby repealed. (c) The provisions of Sections 2, 3, and 4 of Republic Act No. 1939 regarding hospital fund; Section 3, a (3) and b (2) of Republic Act. No. 5447 regarding the Special Education Fund; Presidential Decree No. 144 as amended by Presidential Decree Nos. 559 and 1741; Presidential Decree No. 231 as amended; Presidential Decree No. 436 as amended by Presidential Decree No. 558; and Presidential Decree Nos. 381, 436, 464, 477, 526, 632, 752, and 1136 are hereby repealed and rendered of no force and effect. (d) Presidential Decree No. 1594 is hereby repealed insofar as it governs locally-funded projects.

(e) The following provisions are hereby repealed or amended insofar as they are inconsistent with the provisions of this Code: Sections 2, 16, and 29 of Presidential Decree No. 704; Section 12 of Presidential Decree No. 87, as amended; Sections 52, 53, 66, 67, 68, 69, 70, 71, 72, 73, and 74 of Presidential Decree No. 463, as amended; and Section 16 of Presidential Decree No. 972, as amended, and (f) All general and special laws, acts, city charters, decrees, executive orders, proclamations and administrative regulations, or part or parts thereof which are inconsistent with any of the provisions of this Code are hereby repealed or modified accordingly.
Neither is there an indication that E.O. No. 205 was impliedly repealed by R.A. No. 7160. It is a settled rule that implied repeals are not lightly presumed in the absence of a clear and unmistakable showing of such intentions. In Mecano vs. Commission on Audit,[46] we ruled:

Repeal by implication proceeds on the premise that where a statute of later date clearly reveals an intention on the part of the legislature to abrogate a prior act on the subject, that intention must be given effect. Hence, before there can be a repeal, there must be a clear showing on the part of the lawmaker that the intent in enacting the new law was to abrogate the old one. The intention to repeal must be clear and manifest; otherwise, at least, as a general rule, the later act is to be construed as a continuation of, and not a substitute for, the first act and will continue so far as the two acts are the same from the time of the first enactment.

Tan vs. Perena

As previously stated, E.O. No. 436 (issued by President Ramos) vests upon the NTC the power to regulate the CATV operation in this country. So also Memorandum Circular No. 8-9-95, the Implementing Rules and Regulations of R.A. No. 7925 (the Public Telecommunications Policy Act of the Philippines). This shows that the NTCs regulatory power over CATV operation is continuously recognized. It is a canon of legal hermeneutics that instead of pitting one statute against another in an inevitably destructive confrontation, courts must exert every effort to reconcile them, remembering that both laws deserve a becoming respect as the handiwork of coordinate branches of the government. [47] On the assumption of a conflict between E.O. No. 205 and R.A. No. 7160, the proper action is not to uphold one and annul the other but to give effect to both by harmonizing them if possible. This recourse finds application here. Thus, we hold that the NTC, under E.O. No. 205, has exclusive jurisdiction over matters affecting CATV operation, including specifically the fixing of subscriber rates, but nothing herein precludes LGUs from exercising its general power, under R.A. No. 7160, to prescribe regulations to promote the health, morals, peace, education, good order or safety and general welfare of their constituents. In effect, both laws become equally effective and mutually complementary. The grant of regulatory power to the NTC is easily understandable. CATV system is not a mere local concern. The complexities that characterize this new technology demand that it be regulated by a specialized agency. This is particularly true in the area of rate-fixing. Rate fixing involves a series of technical operations.[48] Consequently, on the hands of the regulatory body lies the ample discretion in the choice of such rational processes as might be appropriate to the solution of its highly complicated and technical problems. Considering that the CATV industry is so technical a field, we believe that the NTC, a specialized agency, is in a better position than the LGU, to regulate it. Notably, in United States vs. Southwestern Cable Co.,[49] the US Supreme Court affirmed the Federal Communications Commissions (FCCs) jurisdiction over CATV operation. The Court held that the FCCs authority over cable systems assures the preservation of the local broadcast service and an equitable distribution of broadcast services among the various regions of the country.
II.

Resolution No. 210 violated the States deregulation policy. Deregulation is the reduction of government regulation of business to permit freer markets and competition.[50] Oftentimes, the State, through its regulatory agencies, carries out a policy of deregulation to attain certain objectives or to address certain problems. In the field of telecommunications, it is recognized that many areas in the Philippines are still unserved or underserved. Thus, to encourage private sectors to venture in this field and be partners of the government in stimulating the growth and development of telecommunications, the State promoted the policy of deregulation. In the United States, the country where CATV originated, the Congress observed, when it adopted the Telecommunications Act of 1996, that there was a need to provide a pro-competitive, deregulatory national policy framework designed to accelerate rapidly private sector deployment of advanced telecommunications and information technologies and services to all Americans by opening all telecommunications markets to competition. The FCC has adopted regulations to implement the requirements of the 1996 Act and the intent of the Congress. Our country follows the same policy. The fifth Whereas Clause of E.O. No. 436 states:

WHEREAS, professionalism and self-regulation among existing operators, through a nationally recognized cable television operators association, have enhanced the growth of the cable television industry and must therefore be maintained along with minimal reasonable government regulations;

Tan vs. Perena

This policy reaffirms the NTCs mandate set forth in the Memorandum dated August 25, 1989 of Commissioner Jose Luis A. Alcuaz, to wit:

In line with the purpose and objective of MC 4-08-88, Cable Television System or Community Antenna Television (CATV) is made part of the broadcast media to promote the orderly growth of the Cable Television Industry it being in its developing stage. Being part of the Broadcast Media, the service rates of CATV are likewise considered deregulated in accordance with MC 06-2-81 dated 25 February 1981, the implementing guidelines for the authorization and operation of Radio and Television Broadcasting stations/systems. Further, the Commission will issue Provisional Authority to existing CATV operators to authorize their operations for a period of ninety (90) days until such time that the Commission can issue the regular Certificate of Authority.
When the State declared a policy of deregulation, the LGUs are bound to follow. To rule otherwise is to render the States policy ineffective. Being mere creatures of the State, LGUs cannot defeat national policies through enactments of contrary measures. Verily, in the case at bar, petitioner may increase its subscriber rates without respondents approval. At this juncture, it bears emphasizing that municipal corporations are bodies politic and corporate, created not only as local units of local self-government, but as governmental agencies of the state.[51] The legislature, by establishing a municipal corporation, does not divest the State of any of its sovereignty; absolve itself from its right and duty to administer the public affairs of the entire state; or divest itself of any power over the inhabitants of the district which it possesses before the charter was granted. [52] Respondents likewise argue that E.O. No. 205 violates the constitutional prohibition against impairment of contracts, Resolution No. 210 of Batangas CitySangguniang Panlungsod being a grant of franchise to petitioner. We are not convinced. There is no law specifically authorizing the LGUs to grant franchises to operate CATV system. Whatever authority the LGUs had before, the same had been withdrawn when President Marcos issued P.D. No. 1512 terminating all franchises, permits or certificates for the operation of CATV system previously granted by local governments. Today, pursuant to Section 3 of E.O. No. 436, only persons, associations, partnerships, corporations or cooperatives granted a Provisional Authority or Certificate of Authority by the NTC may install, operate and maintain a cable television system or render cable television service within a service area. It is clear that in the absence of constitutional or legislative authorization, municipalities have no power to grant franchises.[53] Consequently, the protection of the constitutional provision as to impairment of the obligation of a contract does not extend to privileges, franchises and grants given by a municipality in excess of its powers, or ultra vires.[54] One last word. The devolution of powers to the LGUs, pursuant to the Constitutional mandate of ensuring their autonomy, has bred jurisdictional tension between said LGUs and the State. LGUs must be reminded that they merely form part of the whole. Thus, when the Drafters of the 1987 Constitution enunciated the policy of ensuring the autonomy of local governments, [55] it was never their intention to create an imperium in imperio and install an intra-sovereign political subdivision independent of a single sovereign state.

Tan vs. Perena

WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of Appeals dated February 12, 1999 as well as its Resolution dated May 26, 1999 in CA-G.R. CV No. 52461, are hereby REVERSED. The RTC Decision in Civil Case No. 4254 is AFFIRMED. No pronouncement as to costs. SO ORDERED.

Bantangas CATV vs. C.A.


BATANGAS CATV, INC. vs. THE COURT OF APPEALS, THE BATANGAS CITY SANGGUNIANG PANLUNGSOD and BATANGAS CITY MAYOR [G.R. No. 138810. September 29, 2004] FACTS: On July 28, 1986, respondent Sangguniang Panlungsod enacted Resolution No. 210 granting petitioner a permit to construct, install, and operate a CATV system in Batangas City. Section 8 of the Resolution provides that petitioner is authorized to charge its subscribers the maximum rates specified t herein, provided, however, that any increase of rates shall be subject to the approval of the Sangguniang Panlungsod. Sometime in November 1993, petitioner increased its subscriber rates from P88.00 to P180.00 per month. As a result, respondent Mayor wrote petitioner a letter threatening to cancel its permit unless it secures the approval of respondent Sangguniang Panlungsod, pursuant to Resolution No. 210. Petitioner then filed with the RTC, Branch 7, Batangas City, a petition for injunction alleging that respondent Sangguniang Panlungsod has no authority to regulate the subscriber rates charged by CATV operators because under Executive Order No. 205, the National Telecommunications Commission (NTC) has the sole authority to regulate the CATV operation in the Philippines. ISSUE : may a local government unit (LGU) regulate the subscriber rates charged by CATV operators within its territorial jurisdiction? HELD: No. xxx The logical conclusion, therefore, is that in light of the above laws and E.O. No. 436, the NTC exercises regulatory power over CATV operators to the exclusion of other bodies. xxx Like any other enterprise, CATV operation maybe regulated by LGUs under the general welfare clause. This is primarily because the CATV system commits the indiscretion of crossing public properties. (It uses public properties in order to reach subscribers.) The physical realities of constructing CATV system the use of public streets, rights of ways, the founding of structures, and the parceling of large regions allow an LGU a certain degree of regulation over CATV operators. xxx But, while we recognize the LGUs power under the general welfare clause, we cannot sustain Resolution No. 210. We are convinced that respondents strayed from the well recognized limits of its power. The flaws in Resolution No. 210 are: (1) it violates the mandate of existing laws and (2) it violates the States deregulation policy over the CATV industry. LGUs must recognize that technical matters concerning CATV operation are within the exclusive regulatory power of the NTC.

Tan vs. Perena


Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 149743 February 18, 2005

LEONARDO TAN, ROBERT UY and LAMBERTO TE, petitioners, vs. SOCORRO Y. PEREA, Respondent. DECISION TINGA, J.: The resolution of the present petition effectively settles the question of how many cockpits may be allowed to operate in a city or municipality. There are two competing values of high order that come to fore in this casethe traditional power of the national government to enact police power measures, on one hand, and the vague principle of local autonomy now enshrined in the Constitution on the other. The facts are simple, but may be best appreciated taking into account the legal milieu which frames them. In 1974, Presidential Decree (P.D.) No. 449, otherwise known as the Cockfighting Law of 1974, was enacted. Section 5(b) of the Decree provided for limits on the number of cockpits that may be established in cities and municipalities in the following manner: Section 5. Cockpits and Cockfighting in General. (b) Establishment of Cockpits. Only one cockpit shall be allowed in each city or municipality, except that in cities or municipalities with a population of over one hundred thousand, two cockpits may be established, maintained and operated. With the enactment of the Local Government Code of 1991,1 the municipal sangguniang bayan were empowered, "[a]ny law to the contrary notwithstanding," to "authorize and license the establishment, operation and maintenance of cockpits, and regulate cockfighting and commercial breeding of gamecocks."2 In 1993, the Sangguniang Bayan of the municipality of Daanbantayan,3 Cebu Province, enacted Municipal Ordinance No. 6 (Ordinance No. 6), Series of 1993, which served as the Revised Omnibus Ordinance prescribing and promulgating the rules and regulations governing cockpit operations in Daanbantayan.4 Section 5 thereof, relative to the number of cockpits allowed in the municipality, stated: Section 5. There shall be allowed to operate in the Municipality of Daanbantayan, Province of Cebu, not more than its equal number of cockpits based upon the population provided for in PD 449, provided however, that this specific section can be amended for purposes of establishing additional cockpits, if the Municipal population so warrants.5 Shortly thereafter, the Sangguniang Bayan passed an amendatory ordinance, Municipal Ordinance No. 7 (Ordinance No. 7), Series of 1993, which amended the aforequoted Section 5 to now read as follows: Section 5. Establishment of Cockpit. There shall be allowed to operate in the Municipality of Daanbantayan, Province of Cebu, not more than three (3) cockpits.6

Tan vs. Perena On 8 November 1995, petitioner Leonardo Tan (Tan) applied with the Municipal Gamefowl Commission for the issuance of a permit/license to establish and operate a cockpit in Sitio Combado, Bagay, in Daanbantayan. At the time of his application, there was already another cockpit in operation in Daanbantayan, operated by respondent Socorro Y. Perea (Perea), who was the duly franchised and licensed cockpit operator in the municipality since the 1970s. Pereas franchise, per records, was valid until 2002.7
The Municipal Gamefowl Commission favorably recommended to the mayor of Daanbantayan, petitioner Lamberto Te (Te), that a permit be issued to Tan. On 20 January 1996, Te issued a mayors permit allowing Tan "to establish/operate/conduct" the business of a cockpit in Combado, Bagay, Daanbantayan, Cebu for the period from 20 January 1996 to 31 December 1996.8 This act of the mayor served as cause for Perea to file a Complaint for damages with a prayer for injunction against Tan, Te, and Roberto Uy, the latter allegedly an agent of Tan.9 Perea alleged that there was no lawful basis for the establishment of a second cockpit. She claimed that Tan conducted his cockpit fights not in Combado, but in Malingin, at a site less than five kilometers away from her own cockpit. She insisted that the unlawful operation of Tans cockpit has caused injury to her own legitimate business, and demanded damages of at least Ten Thousand Pesos (P10,000.00) per month as actual damages, One Hundred Fifty Thousand Pesos (P150,000.00) as moral damages, and Fifty Thousand Pesos (P50,000.00) as exemplary damages. Perea also prayed that the permit issued by Te in favor of Tan be declared as null and void, and that a permanent writ of injunction be issued against Te and Tan preventing Tan from conducting cockfights within the municipality and Te from issuing any authority for Tan to pursue such activity.10 The case was heard by the Regional Trial Court (RTC),11 Branch 61 of Bogo, Cebu, which initially granted a writ of preliminary injunction.12 During trial, herein petitioners asserted that under the Local Government Code of 1991, the sangguniang bayan of each municipality now had the power and authority to grant franchises and enact ordinances authorizing the establishment, licensing, operation and maintenance of cockpits.13 By virtue of such authority, the Sangguniang Bayan of Daanbantayan promulgated Ordinance Nos. 6 and 7. On the other hand, Perea claimed that the amendment authorizing the operation of not more than three (3) cockpits in Daanbantayan violated Section 5(b) of the Cockfighting Law of 1974, which allowed for only one cockpit in a municipality with a population as Daanbantayan.14 In a Decision dated 10 March 1997, the RTC dismissed the complaint. The court observed that Section 5 of Ordinance No. 6, prior to its amendment, was by specific provision, an implementation of the Cockfighting Law.15Yet according to the RTC, questions could be raised as to the efficacy of the subsequent amendment under Ordinance No. 7, since under the old Section 5, an amendment allowing additional cockpits could be had only "if the municipal population so warrants."16 While the RTC seemed to doubt whether this condition had actually been fulfilled, it nonetheless declared that since the case was only for damages, "the [RTC] cannot grant more relief than that prayed for."17 It ruled that there was no evidence, testimonial or documentary, to show that plaintiff had actually suffered damages. Neither was there evidence that Te, by issuing the permit to Tan, had acted in bad faith, since such issuance was pursuant to municipal ordinances that nonetheless remained in force.18 Finally, the RTC noted that the assailed permit had expired on 31 December 1996, and there was no showing that it had been renewed.19 Perea filed a Motion for Reconsideration which was denied in an Order dated 24 February 1998. In this Order, the RTC categorically stated that Ordinance Nos. 6 and 7 were "valid and legal for all intents and purpose[s]."20The RTC also noted that the Sangguniang Bayan had also promulgated Resolution No. 78-96, conferring on Tan a franchise to operate a cockpit for a period of ten (10) years from February 1996 to 2006.21 This Resolution was likewise affirmed as valid by the RTC. The RTC noted that while the ordinances seemed to be in conflict with the Cockfighting Law, any doubt in interpretation should be resolved in favor of the grant of more power to the local government unit, following the principles of devolution under the Local Government Code.22 The Decision and Order of the RTC were assailed by Perea on an appeal with the Court of Appeals which on 21 May 2001, rendered the Decision now assailed.23 The perspective from which the Court of Appeals viewed the issue was markedly different from that adopted by the RTC. Its analysis of the Local Government Code, particularly Section 447(a)(3)(V), was that the provision vesting unto the sangguniang bayan the power to authorize and license the establishment of cockpits did not do away with the Cockfighting Law, as these two laws are not necessarily inconsistent with each other. What the provision of the Local Government Code did, according to the Court of Appeals, was to transfer to the sangguniang bayan powers that were previously conferred on the Municipal Gamefowl Commission.24

Tan vs. Perena Given these premises, the appellate court declared as follows:
Ordinance No. 7 should [be] held invalid for allowing, in unconditional terms, the operation of "not more than three cockpits in Daan Bantayan" (sic), clearly dispensing with the standard set forth in PD 449. However, this issue appears to have been mooted by the expiration of the Mayors Permit granted to the defendant which has not been renewed.25 As to the question of damages, the Court of Appeals agreed with the findings of the RTC that Perea was not entitled to damages. Thus, it affirmed the previous ruling denying the claim for damages. However, the Court of Appeals modified the RTCs Decision in that it now ordered that Tan be enjoined from operating a cockpit and conducting any cockfights within Daanbantayan.26 Thus, the present Petition for Review on Certiorari. Petitioners present two legal questions for determination: whether the Local Government Code has rendered inoperative the Cockfighting Law; and whether the validity of a municipal ordinance may be determined in an action for damages which does not even contain a prayer to declare the ordinance invalid.27 As the denial of the prayer for damages by the lower court is not put in issue before this Court, it shall not be passed upon on review. The first question raised is particularly interesting, and any definitive resolution on that point would have obvious ramifications not only to Daanbantayan, but all other municipalities and cities. However, we must first determine the proper scope of judicial inquiry that we could engage in, given the nature of the initiatory complaint and the rulings rendered thereupon, the exact point raised in the second question. Petitioners claim that the Court of Appeals, in declaring Ordinance No. 7 as invalid, embarked on an unwarranted collateral attack on the validity of a municipal ordinance.28 Pereas complaint, which was for damages with preliminary injunction, did not pray for the nullity of Ordinance No. 7. The Municipality of Daanbantayan as a local government unit was not made a party to the case, nor did any legal counsel on its behalf enter any appearance. Neither was the Office of the Solicitor General given any notice of the case.29 These concerns are not trivial.30 Yet, we must point out that the Court of Appeals did not expressly nullify Ordinance No. 7, or any ordinance for that matter. What the appellate court did was to say that Ordinance No. 7"should therefore be held invalid" for being in violation of the Cockfighting Law.31 In the next breath though, the Court of Appeals backtracked, saying that "this issue appears to have been mooted by the expiration of the Mayors Permit granted" to Tan.32 But our curiosity is aroused by the dispositive portion of the assailed Decision, wherein the Court of Appeals enjoined Tan "from operating a cockpit and conducting any cockfights within" Daanbantayan.33 Absent the invalidity of Ordinance No. 7, there would be no basis for this injunction. After all, any future operation of a cockpit by Tan in Daanbantayan, assuming all other requisites are complied with, would be validly authorized should Ordinance No. 7 subsist. So it seems, for all intents and purposes, that the Court of Appeals did deem Ordinance No. 7 a nullity. Through such resort, did the appellate court in effect allow a collateral attack on the validity of an ordinance through an action for damages, as the petitioners argue? The initiatory Complaint filed by Perea deserves close scrutiny. Immediately, it can be seen that it is not only an action for damages, but also one for injunction. An action for injunction will require judicial determination whether there exists a right in esse which is to be protected, and if there is an act constituting a violation of such right against which injunction is sought. At the same time, the mere fact of injury alone does not give rise to a right to recover damages. To warrant the recovery of damages, there must be both a right of action for a legal wrong inflicted by the defendant, and damage resulting to the plaintiff therefrom. In other words, in order that the law will give redress for an act causing damage, there must be damnum et injuriathat act must be not only hurtful, but wrongful.34 Indubitably, the determination of whether injunction or damages avail in this case requires the ascertainment of whether a second cockpit may be legally allowed in Daanbantayan. If this is permissible, Perea would not be entitled either to injunctive relief or damages.

Tan vs. Perena Moreover, an examination of the specific allegations in the Complaint reveals that Perea therein puts into question the legal basis for allowing Tan to operate another cockpit in Daanbantayan. She asserted that "there is no lawful basis for the establishment of a second cockpit considering the small population of [Daanbantayan],"35 a claim which alludes to Section 5(b) of the Cockfighting Law which prohibits the establishment of a second cockpit in municipalities of less than ten thousand (10,000) in population. Perea likewise assails the validity of the permit issued to Tan and prays for its annulment, and also seeks that Te be enjoined from issuing any special permit not only to Tan, but also to "any other person outside of a duly licensed cockpit in Daanbantayan, Cebu."36
It would have been preferable had Perea expressly sought the annulment of Ordinance No. 7. Yet it is apparent from her Complaint that she sufficiently alleges that there is no legal basis for the establishment of a second cockpit. More importantly, the petitioners themselves raised the valid effect of Ordinance No. 7 at the heart of their defense against the complaint, as adverted to in their Answer.37 The averment in the Answer that Ordinance No. 7 is valid can be considered as an affirmative defense, as it is the allegation of a new matter which, while hypothetically admitting the material allegations in the complaint, would nevertheless bar recovery.38 Clearly then, the validity of Ordinance No. 7 became a justiciable matter for the RTC, and indeed Perea squarely raised the argument during trial that said ordinance violated the Cockfighting Law.39
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Moreover, the assailed rulings of the RTC, its Decision and subsequent Order denying Pereas Motion for Reconsideration, both discuss the validity of Ordinance No. 7. In the Decision, the RTC evaded making a categorical ruling on the ordinances validity because the case was "only for damages, [thus the RTC could] not grant more relief than that prayed for." This reasoning is unjustified, considering that Perea also prayed for an injunction, as well as for the annulment of Tans permit. The resolution of these two questions could very well hinge on the validity of Ordinance No. 7. Still, in the Order denying Pereas Motion for Reconsideration, the RTC felt less inhibited and promptly declared as valid not only Ordinance No. 7, but also Resolution No. 78-96 of the Sangguniang Bayan dated 23 February 1996, which conferred on Tan a franchise to operate a cockpit from 1996 to 2006.40 In the Order, the RTC ruled that while Ordinance No. 7 was in apparent conflict with the Cockfighting Law, the ordinance was justified under Section 447(a)(3)(v) of the Local Government Code. This express affirmation of the validity of Ordinance No. 7 by the RTC was the first assigned error in Pereas appeal to the Court of Appeals.41 In their Appellees Brief before the appellate court, the petitioners likewise argued that Ordinance No. 7 was valid and that the Cockfighting Law was repealed by the Local Government Code.42 On the basis of these arguments, the Court of Appeals rendered its assailed Decision, including its ruling that the Section 5(b) of the Cockfighting Law remains in effect notwithstanding the enactment of the Local Government Code. Indubitably, the question on the validity of Ordinance No. 7 in view of the continuing efficacy of Section 5(b) of the Cockfighting Law is one that has been fully litigated in the courts below. We are comfortable with reviewing that question in the case at bar and make dispositions proceeding from that key legal question. This is militated by the realization that in order to resolve the question whether injunction should be imposed against the petitioners, there must be first a determination whether Tan may be allowed to operate a second cockpit in Daanbantayan. Thus, the conflict between Section 5(b) of the Cockfighting Law and Ordinance No. 7 now ripens for adjudication. In arguing that Section 5(b) of the Cockfighting Law has been repealed, petitioners cite the following provisions of Section 447(a)(3)(v) of the Local Government Code: Section 447. Powers, Duties, Functions and Compensation. (a) The sangguniang bayan, as the legislative body of the municipality, shall enact ordinances, approve resolutions and appropriate funds for the general welfare of the municipality and its inhabitants pursuant to Section 16 of this Code and in the proper exercise of the corporate powers of the municipality as provided for under Section 22 of this Code, and shall: .... (3) Subject to the provisions of Book II of this Code, grant franchises, enact ordinances authorizing the issuance of permits or licenses, or enact ordinances levying taxes, fees and charges upon such conditions and for such purposes

Tan vs. Perena intended to promote the general welfare of the inhabitants of the municipality, and pursuant to this legislative authority shall:
.... (v) Any law to the contrary notwithstanding, authorize and license the establishment, operation, and maintenance of cockpits, and regulate cockfighting and commercial breeding of gamecocks; Provided, that existing rights should not be prejudiced; For the petitioners, Section 447(a)(3)(v) sufficiently repeals Section 5(b) of the Cockfighting Law, vesting as it does on LGUs the power and authority to issue franchises and regulate the operation and establishment of cockpits in their respective municipalities, any law to the contrary notwithstanding. However, while the Local Government Code expressly repealed several laws, the Cockfighting Law was not among them. Section 534(f) of the Local Government Code declares that all general and special laws or decrees inconsistent with the Code are hereby repealed or modified accordingly, but such clause is not an express repealing clause because it fails to identify or designate the acts that are intended to be repealed.43 It is a cardinal rule in statutory construction that implied repeals are disfavored and will not be so declared unless the intent of the legislators is manifest.44 As laws are presumed to be passed with deliberation and with knowledge of all existing ones on the subject, it is logical to conclude that in passing a statute it is not intended to interfere with or abrogate a former law relating to the same subject matter, unless the repugnancy between the two is not only irreconcilable but also clear and convincing as a result of the language used, or unless the latter Act fully embraces the subject matter of the earlier.45 Is the one-cockpit-per-municipality rule under the Cockfighting Law clearly and convincingly irreconcilable with Section 447(a)(3)(v) of the Local Government Code? The clear import of Section 447(a)(3)(v) is that it is the sangguniang bayan which is empowered to authorize and license the establishment, operation and maintenance of cockpits, and regulate cockfighting and commercial breeding of gamecocks, notwithstanding any law to the contrary. The necessity of the qualifying phrase "any law to the contrary notwithstanding" can be discerned by examining the history of laws pertaining to the authorization of cockpit operation in this country. Cockfighting, or sabong in the local parlance, has a long and storied tradition in our culture and was prevalent even during the Spanish occupation. When the newly-arrived Americans proceeded to organize a governmental structure in the Philippines, they recognized cockfighting as an activity that needed to be regulated, and it was deemed that it was the local municipal council that was best suited to oversee such regulation. Hence, under Section 40 of Act No. 82, the general act for the organization of municipal governments promulgated in 1901, the municipal council was empowered "to license, tax or close cockpits". This power of the municipal council to authorize or license cockpits was repeatedly recognized even after the establishment of the present Republic in 1946.46 Such authority granted unto the municipal councils to license the operation of cockpits was generally unqualified by restrictions.47 The Revised Administrative Code did impose restrictions on what days cockfights could be held.48 However, in the 1970s, the desire for stricter licensing requirements of cockpits started to see legislative fruit. The Cockfighting Law of 1974 enacted several of these restrictions. Apart from the one-cockpit-per-municipality rule, other restrictions were imposed, such as the limitation of ownership of cockpits to Filipino citizens.49 More importantly, under Section 6 of the Cockfighting Law, it was the city or municipal mayor who was authorized to issue licenses for the operation and maintenance of cockpits, subject to the approval of the Chief of Constabulary or his authorized representatives.50 Thus, the sole discretion to authorize the operation of cockpits was removed from the local government unit since the approval of the Chief of Constabulary was now required. P.D. No. 1802 reestablished the Philippine Gamefowl Commission51 and imposed further structure in the regulation of cockfighting. Under Section 4 thereof, city and municipal mayors with the concurrence of their respective sangguniang panglunsod or sangguniang bayan, were given the authority to license and regulate cockfighting, under the supervision of the City Mayor or the Provincial Governor. However, Section 4 of P.D. No. 1802 was subsequently amended, removing the supervision exercised by the mayor or governor and substituting in their stead the Philippine Gamefowl Commission. The amended provision ordained:

Tan vs. Perena Sec. 4. City and Municipal Mayors with the concurrence of their respective "Sanggunians" shall have the authority to license and regulate regular cockfighting pursuant to the rules and regulations promulgated by the Commission and subject to its review and supervision.
The Court, on a few occasions prior to the enactment of the Local Government Code in 1991, had opportunity to expound on Section 4 as amended. A discussion of these cases will provide a better understanding of the qualifier "any law to the contrary notwithstanding" provided in Section 447(a)(3)(v). In Philippine Gamefowl Commission v. Intermediate Appellate Court,52 the Court, through Justice Cruz, asserted that the conferment of the power to license and regulate municipal cockpits in municipal authorities is in line with the policy of local autonomy embodied in the Constitution.53 The Court affirmed the annulment of a resolution of the Philippine Gamefowl Commission which ordered the revocation of a permit issued by a municipal mayor for the operation of a cockpit and the issuance of a new permit to a different applicant. According to the Court, the Philippine Gamefowl Commission did not possess the power to issue cockpit licenses, as this was vested by Section 4 of P.D. No. 1802, as amended, to the municipal mayor with the concurrence of the sanggunian. It emphasized that the Philippine Gamefowl Commission only had review and supervision powers, as distinguished from control, over ordinary cockpits.54 The Court also noted that the regulation of cockpits was vested in municipal officials, subject only to the guidelines laid down by the Philippine Gamefowl Commission.55 The Court conceded that "[if] at all, the power to review includes the power to disapprove; but it does not carry the authority to substitute ones own preferences for that chosen by the subordinate in the exercise of its sound discretion." The twin pronouncements that it is the municipal authorities who are empowered to issue cockpit licenses and that the powers of the Philippine Gamefowl Commission were limited to review and supervision were affirmed in Deang v. Intermediate Appellate Court,56 Municipality of Malolos v. Libangang Malolos Inc.57 and Adlawan v. Intermediate Appellate Court.58 But notably in Cootauco v. Court of Appeals,59 the Court especially noted thatPhilippine Gamefowl Commission did indicate that the Commissions "power of review includes the power to disapprove."60 Interestingly, Justice Cruz, the writer of Philippine Gamefowl Commission, qualified his concurrence in Cootauco "subject to the reservations made in [Philippine Gamefowl Commission] regarding the review powers of the PGC over cockpit licenses issued by city and municipal mayors."61
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These cases reiterate what has been the traditional prerogative of municipal officials to control the issuances of licenses for the operation of cockpits. Nevertheless, the newly-introduced role of the Philippine Gamefowl Commission vis--vis the operation of cockpits had caused some degree of controversy, as shown by the cases above cited. Then, the Local Government Code of 1991 was enacted. There is no more forceful authority on this landmark legislation than Senator Aquilino Pimentel, Jr., its principal author. In his annotations to the Local Government Code, he makes the following remarks relating to Section 447(a)(3)(v): 12. Licensing power. In connection with the power to grant licenses lodged with it, the Sangguniang Bayan may now regulate not only businesses but also occupations, professions or callings that do not require government examinations within its jurisdiction. It may also authorize and license the establishment, operation and maintenance of cockpits, regulate cockfighting, and the commercial breeding of gamecocks. Existing rights however, may not be prejudiced. The power to license cockpits and permits for cockfighting has been removed completely from the Gamefowl Commission.
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Thus, that part of the ruling of the Supreme Court in the case of Municipality of Malolos v. Libangang Malolos, Inc. et al., which held that "the regulation of cockpits is vested in the municipal councils guidelines laid down by the Philippine Gamefowl Commission" is no longer controlling. Under [Section 447(a)(3)(v)], the power of the Sanggunian concerned is no longer subject to the supervision of the Gamefowl Commission.62 The above observations may be faulted somewhat in the sense that they fail to acknowledge the Courts consistent position that the licensing power over cockpits belongs exclusively to the municipal authorities and not the Philippine Gamefowl Commission. Yet these views of Senator Pimentel evince the apparent confusion regarding the role of the Philippine Gamefowl Commission as indicated in the cases previously cited, and accordingly bring the phrase Section 447(a)(3)(v) used in "any law to the contrary notwithstanding" into its proper light. The qualifier serves notice, in case it

Tan vs. Perena was still doubtful, that it is the sanggunian bayan concerned alone which has the power to authorize and license the establishment, operation and maintenance of cockpits, and regulate cockfighting and commercial breeding of gamecocks within its territorial jurisdiction.
Given the historical perspective, it becomes evident why the legislature found the need to use the phrase "any law to the contrary notwithstanding" in Section 447(a)(3)(v). However, does the phrase similarly allow the Sangguniang Bayan to authorize more cockpits than allowed under Section 5(d) of the Cockfighting Law? Certainly, applying the test of implied repeal, these two provisions can stand together. While the sanggunian retains the power to authorize and license the establishment, operation, and maintenance of cockpits, its discretion is limited in that it cannot authorize more than one cockpit per city or municipality, unless such cities or municipalities have a population of over one hundred thousand, in which case two cockpits may be established. Considering that Section 447(a)(3)(v) speaks essentially of the identity of the wielder of the power of control and supervision over cockpit operation, it is not inconsistent with previous enactments that impose restrictions on how such power may be exercised. In short, there is no dichotomy between affirming the power and subjecting it to limitations at the same time. Perhaps more essential than the fact that the two controverted provisions are not inconsistent when put together, the Court recognizes that Section 5(d) of the Cockfighting Law arises from a valid exercise of police power by the national government. Of course, local governments are similarly empowered under Section 16 of the Local Government Code. The national government ought to be attuned to the sensitivities of devolution and strive to be sparing in usurping the prerogatives of local governments to regulate the general welfare of their constituents.
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We do not doubt, however, the ability of the national government to implement police power measures that affect the subjects of municipal government, especially if the subject of regulation is a condition of universal character irrespective of territorial jurisdictions. Cockfighting is one such condition. It is a traditionally regulated activity, due to the attendant gambling involved63 or maybe even the fact that it essentially consists of two birds killing each other for public amusement. Laws have been enacted restricting the days when cockfights could be held,64 and legislation has even been emphatic that cockfights could not be held on holidays celebrating national honor such as Independence Day65 and Rizal Day.66 The Whereas clauses of the Cockfighting Law emphasize that cockfighting "should neither be exploited as an object of commercialism or business enterprise, nor made a tool of uncontrolled gambling, but more as a vehicle for the preservation and perpetuation of native Filipino heritage and thereby enhance our national identity."67 The obvious thrust of our laws designating when cockfights could be held is to limit cockfighting and imposing the one-cockpit-permunicipality rule is in line with that aim. Cockfighting is a valid matter of police power regulation, as it is a form of gambling essentially antagonistic to the aims of enhancing national productivity and self-reliance.68Limitation on the number of cockpits in a given municipality is a reasonably necessary means for the accomplishment of the purpose of controlling cockfighting, for clearly more cockpits equals more cockfights. If we construe Section 447(a)(3)(v) as vesting an unlimited discretion to the sanggunian to control all aspects of cockpits and cockfighting in their respective jurisdiction, this could lead to the prospect of daily cockfights in municipalities, a certain distraction in the daily routine of life in a municipality. This certainly goes against the grain of the legislation earlier discussed. If the arguments of the petitioners were adopted, the national government would be effectively barred from imposing any future regulatory enactments pertaining to cockpits and cockfighting unless it were to repeal Section 447(a)(3)(v). A municipal ordinance must not contravene the Constitution or any statute, otherwise it is void.69 Ordinance No. 7 unmistakably contravenes the Cockfighting Law in allowing three cockpits in Daanbantayan. Thus, no rights can be asserted by the petitioners arising from the Ordinance. We find the grant of injunction as ordered by the appellate court to be well-taken. WHEREFORE, the petition is DENIED. Costs against petitioners. SO ORDERED.

Disomangcop vs. Datumanong

EN BANC

[G.R. No. 149848. November 25, 2004]

ARSADI M. DISOMANGCOP and RAMIR M. DIMALOTANG, petitioners, vs. THE SECRETARY OF THE DEPARTMENT OF PUBLIC WORKS AND HIGHWAYS SIMEON A. DATUMANONG and THE SECRETARY OF BUDGET and MANAGEMENT EMILIA T. BONCODIN, respondents. DECISION
TINGA, J.:

At stake in the present case is the fate of regional autonomy for Muslim Mindanao which is the epoch-making, Constitution-based project for achieving national unity in diversity. Challenged in the instant petition for certiorari, prohibition and mandamus with prayer for a temporary restraining order and/or writ of preliminary injunction [1] (Petition) are the constitutionality and validity of Republic Act No. 8999 (R.A. 8999),[2] entitled An Act Establishing An Engineering District in the First District of the Province of Lanao del Sur and Appropriating Funds Therefor, and Department of Public Works and Highways (DPWH) Department Order No. 119 (D.O. 119)[3] on the subject, Creation of Marawi Sub-District Engineering Office. The Background The uncontested legal and factual antecedents of the case follow. For the first time in its history after three Constitutions, the Philippines ordained the establishment of regional autonomy with the adoption of the 1987 Constitution. Sections 1 [4] and 15, Article X mandate the creation of autonomous regions in Muslim Mindanao and in the Cordilleras. Section 15 specifically provides that [t]here shall be created autonomous regions in Muslim Mindanao and in the Cordilleras consisting of provinces, cities, municipalities, and geographical areas sharing common and distinctive historical and cultural heritage, economic and social structures, and other relevant characteristics within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines. To effectuate this mandate, the Charter devotes a number of provisions under Article X.[5] Pursuant to the constitutional mandate, Republic Act No. 6734 (R.A. 6734), entitled An Act Providing for An Organic Act for the Autonomous Region in Muslim Mindanao , was enacted and signed into law on 1 August 1989. The law called for the holding of a plebiscite in the provinces of Basilan, Cotabato, Davao del Sur, Lanao del Norte, Lanao del Sur, Maguindanao, Palawan, South Cotabato, Sultan Kudarat, Sulu, Tawi-Tawi, Zamboanga del Norte, and Zamboanga del Sur, and the cities of Cotabato, Dapitan, Dipolog, General Santos, Iligan, Marawi, Pagadian, Puerto Princesa and Zamboanga.[6] In the ensuing plebiscite held on 19 November 1989, only four (4) provinces voted for the creation of an autonomous region, namely: Lanao del Sur, Maguindanao, Sulu and Tawi-Tawi. These provinces became the Autonomous Region in Muslim Mindanao (ARMM). [7] The law contains elaborate provisions on the powers of the Regional Government and the areas of jurisdiction which are reserved for the National Government.[8]

Disomangcop vs. Datumanong

In accordance with R.A. 6734, then President Corazon C. Aquino issued on 12 October 1990, Executive Order No. 426 (E.O. 426), entitled Placing the Control and Supervision of the Offices of the Department of Public Works and Highways within the Autonomous Region in Muslim Mindanao under the Autonomous Regional Government, and for other purposes . Sections 1 to 3[9] of the Executive Order are its operative provisions. ARMM was formally organized on 6 November 1990. President Corazon C. Aquino flew to Cotabato, the seat of the Regional Government, for the inauguration. At that point, she had already signed seven (7) Executive Orders devolving to ARMM the powers of seven (7) cabinet departments, namely: (1) local government; (2) labor and employment; (3) science and technology; (4) public works and highways; (5) social welfare and development; (6) tourism; and (7) environment and national resources. [10] Nearly nine (9) years later, on 20 May 1999, then Department of Public Works and Highways (DPWH) Secretary Gregorio R. Vigilar issued D.O. 119 which reads, thus:

Subject: Creation of Marawi Sub-District Engineering Office Pursuant to Sections 6 and 25 of Executive Order No. 124 dated 30 January 1987, there is hereby created a DPWH Marawi Sub-District Engineering Office which shall have jurisdiction over all national infrastructure projects and facilities under the DPWH within Marawi City and the province of Lanao del Sur. The headquarters of the Marawi Sub-District Engineering Office shall be at the former quarters of the Marawi City Engineering Office. Personnel of the above-mentioned Sub-District Engineering Office shall be made up of employees of the National Government Section of the former Marawi City Engineering Office who are now assigned with the Iligan City Sub-District Engineering Office as may be determined by the DPWH Region XII Regional Director. (Emphasis supplied)
Almost two (2) years later, on 17 January 2001, then President Joseph E. Estrada approved and signed into law R.A. 8999. The text of the law reads:

AN ACT ESTABLISHING AN ENGINEERING DISTRICT IN THE FIRST DISTRICT OF THE PROVINCE OF LANAO DEL SUR AND APPROPRIATING FUNDS THEREFOR Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled: SECTION 1. The City of Marawi and the municipalities comprising the First District of the Province of Lanao del Sur are hereby constituted into an engineering district to be known as the First Engineering District of the Province of Lanao del Sur. SEC. 2. The office of the engineering district hereby created shall be established in Marawi City, Province of Lanao del Sur. SEC. 3. The amount necessary to carry out the provisions of this Act shall be included in the General Appropriations Act of the year following its enactment into law. Thereafter, such sums as may be necessary for the maintenance and continued operation of the engineering district office shall be included in the annual General Appropriations Act.

Disomangcop vs. Datumanong

SEC. 4. This Act shall take effect upon its approval. (Emphasis supplied)
Congress later passed Republic Act No. 9054 (R.A. 9054), entitled An Act to Strengthen and Expand the Organic Act for the Autonomous Region in Muslim Mindanao, Amending for the Purpose Republic Act No. 6734, entitled An Act Providing for the Autonomous Region in Muslim Mindanao, as Amended. Like its forerunner, R.A. 9054 contains detailed provisions on the powers of the Regional Government and the retained areas of governance of the National Government. [11] R.A. 9054 lapsed into law[12] on 31 March 2001. It was ratified in a plebiscite held on 14 August 2001. The province of Basilan and the City of Marawi also voted to join ARMM on the same date. R.A. 6734 and R.A. 9054 are collectively referred to as the ARMM Organic Acts. On 23 July 2001, petitioners Arsadi M. Disomangcop (Disomangcop) and Ramir M. Dimalotang (Dimalotang) addressed a petition to then DPWH Secretary Simeon A. Datumanong, seeking the revocation of D.O. 119 and the non-implementation of R.A. 8999. No action, however, was taken on the petition.[13] Consequently, petitioners Disomangcop and Dimalotang filed the instant petition, in their capacity as Officer-in-Charge and District Engineer/Engineer II, respectively, of the First Engineering District of the Department of Public Works and Highways, Autonomous Region in Muslim Mindanao (DPWH-ARMM) in Lanao del Sur. Petitioners seek the following principal reliefs: (1) to annul and set aside D.O. 119; (2) to prohibit respondent DPWH Secretary from implementing D.O. 119 and R.A. 8999 and releasing funds for public works projects intended for Lanao del Sur and Marawi City to the Marawi Sub-District Engineering Office and other administrative regions of DPWH; and (3) to compel the Secretary of the Department of Budget and Management (DBM) to release all funds for public works projects intended for Marawi City and the First District of Lanao del Sur to the DPWH-ARMM First Engineering District in Lanao del Sur only; and to compel respondent DPWH Secretary to let the DPWH-ARMM First Engineering District in Lanao del Sur implement all public works projects within its jurisdictional area.[14] The petition includes an urgent application for the issuance of a temporary restraining order (TRO) and, after hearing, a writ of preliminary injunction, to enjoin respondent DBM Secretary from releasing funds for public works projects in Lanao del Sur to entities other than the DPWH-ARMM First Engineering District in Lanao del Sur, and also to restrain the DPWH Secretary from allowing others besides the DPWH-ARMM First Engineering District in Lanao del Sur to implement public works projects in Lanao del Sur.[15] To support their petition, petitioners allege that D.O. 119 was issued with grave abuse of discretion and that it violates the constitutional autonomy of the ARMM. They point out that the challenged Department Order has tasked the Marawi Sub-District Engineering Office with functions that have already been devolved to the DPWH-ARMM First Engineering District in Lanao del Sur.[16] Petitioners also contend that R.A. 8999 is a piece of legislation that was not intelligently and thoroughly studied, and that the explanatory note to House Bill No. 995 (H.B. 995) from which the law originated is questionable. Petitioners assert as well that prior to the sponsorship of the law, no public hearing nor consultation with the DPWH-ARMM was made. The House Committee on Public Works and Highways (Committee) failed to invite a single official from the affected agency. Finally, petitioners argue that the law was skillfully timed for signature by former President Joseph E. Estrada during the pendency of the impeachment proceedings.[17] In its resolution of 8 October 2001, the Court required respondents to file their comment.[18] In compliance, respondents DPWH Secretary and DBM Secretary, through the Solicitor General, filed on 7 January 2002, their Comment.

Disomangcop vs. Datumanong

In their Comment,[19] respondents, through the Office of the Solicitor General, maintain the validity of D.O. 119, arguing that it was issued in accordance with Executive Order No. 124 (E.O. 124).[20] In defense of the constitutionality of R.A. 8999, they submit that the powers of the autonomous regions did not diminish the legislative power of Congress.[21] Respondents also contend that the petitioners have no locus standi or legal standing to assail the constitutionality of the law and the department order. They note that petitioners have no personal stake in the outcome of the controversy. [22] Asserting their locus standi, petitioners in their Memorandum[23] point out that they will suffer actual injury as a result of the enactments complained of.[24] Jurisdictional Considerations First, the jurisdictional predicates. The 1987 Constitution is explicit in defining the scope of judicial power. It establishes the authority of the courts to determine in an appropriate action the validity of acts of the political departments. It speaks of judicial prerogative in terms of duty.[25] Jurisprudence has laid down the following requisites for the exercise of judicial power: First, there must be before the Court an actual case calling for the exercise of judicial review. Second, the question before the Court must be ripe for adjudication. Third, the person challenging the validity of the act must have standing to challenge. Fourth, the question of constitutionality must have been raised at the earliest opportunity. Fifth, the issue of constitutionality must be the very lis mota of the case.[26] In seeking to nullify acts of the legislature and the executive department on the ground that they contravene the Constitution, the petition no doubt raises a justiciable controversy. As held in Taada v. Angara,[27] where an action of the legislative branch is seriously alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute. But in deciding to take jurisdiction over this petition questioning acts of the political departments of government, the Court will not review the wisdom, merits, or propriety thereof, but will strike them down only on either of two grounds: (1) unconstitutionality or illegality and (2) grave abuse of discretion. [28] For an abuse to be grave, the power must be exercised in an arbitrary or despotic manner by reason of passion or personal hostility. The abuse of discretion must be patent and gross as to amount to an evasion of a positive duty, or a virtual refusal to perform the duty enjoined or to act in contemplation of law. There is grave abuse of discretion when respondent acts in a capricious or whimsical manner in the exercise of its judgment as to be equivalent to lack of jurisdiction.[29] The challenge to the legal standing of petitioners cannot succeed. Legal standing or locus standi is defined as a personal and substantial interest in the case such that the party has sustained or will sustain direct injury as a result of the governmental act that is being challenged. The term interest means a material interest, an interest in issue affected by the decree, as distinguished from a mere interest in the question involved, or a mere incidental interest.[30] A party challenging the constitutionality of a law, act, or statute must show not only that the law is invalid, but also that he has sustained or is in immediate, or imminent danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers thereby in some indefinite way. He must show that he has been, or is about to be, denied some right or privilege to which he is lawfully entitled, or that he is about to be subjected to some burdens or penalties by reason of the statute complained of.[31] But following the new trend, this Court is inclined to take cognizance of a suit although it does not satisfy the requirement of legal standing when paramount interests are involved. In several cases, the Court has adopted a liberal stance on the locus standi of a petitioner where the petitioner is able to craft an issue of transcendental significance to the people.[32]

Disomangcop vs. Datumanong

In the instant case, petitioner Disomangcop holds the position of Engineer IV. When he filed this petition, he was the Officer-in-Charge, Office of the District Engineer of the First Engineering District of DPWH-ARMM, Lanao del Sur. On the other hand, petitioner Dimalotang is an Engineer II and President of the rank and file employees also of the First Engineering District of DPWH-ARMM in Lanao del Sur. Both are charged with the duty and responsibility of supervising and implementing all public works projects to be undertaken and being undertaken in Lanao del Sur which is the area of their jurisdiction.[33] It is thus not far-fetched that the creation of the Marawi Sub-District Engineering Office under D.O. 119 and the creation of and appropriation of funds to the First Engineering District of Lanao del Sur as directed under R.A. 8999 will affect the powers, functions and responsibilities of the petitioners and the DPWH-ARMM. As the two offices have apparently been endowed with functions almost identical to those of DPWH-ARMM First Engineering District in Lanao del Sur, it is likely that petitioners are in imminent danger of being eased out of their duties and, not remotely, even their jobs. Their material and substantial interests will definitely be prejudiced by the enforcement of D.O. 119 and R.A. 8999. Such injury is direct and immediate. Thus, they can legitimately challenge the validity of the enactments subject of the instant case. Points of Contention In the petition before us, petitioners contend that R.A. 8999 and D.O. 119 are unconstitutional and were issued with grave abuse of discretion. We agree in part. Republic Act No. 8999 At the outset, let it be made clear that it is not necessary to declare R.A. No. 8999 unconstitutional for the adjudication of this case. The accepted rule is that the Court will not resolve a constitutional question unless it is the lis mota of the case, or if the case can be disposed of or settled on other grounds.[34] The plain truth is the challenged law never became operative and was superseded or repealed by a subsequent enactment. The ARMM Organic Acts are deemed a part of the regional autonomy scheme. While they are classified as statutes, the Organic Acts are more than ordinary statutes because they enjoy affirmation by a plebiscite.[35] Hence, the provisions thereof cannot be amended by an ordinary statute, such as R.A. 8999 in this case. The amendatory law has to be submitted to a plebiscite. We quote excerpts of the deliberations of the Constitutional Commission:

FR. BERNAS. Yes, that is the reason I am bringing this up. This thing involves some rather farreaching consequences also in relation to the issue raised by Commissioner Romulo with respect to federalism. Are we, in effect, creating new categories of laws? Generally, we have statutes and constitutional provisions. Is this organic act equivalent to a constitutional provision? If it is going to be equivalent to a constitutional provision, it would seem to me that the formulation of the provisions of the organic act will have to be done by the legislature, acting as a constituent assembly, and therefore, subject to the provisions of the Article on Amendments. That is the point that I am trying to bring up. In effect, if we opt for federalism, it would really involve an act of the National Assembly or Congress acting as a constituent assembly and present amendments to this Constitution, and the end product itself would be a constitutional provision which would only be amendable according to the processes indicated in the Constitution.

Disomangcop vs. Datumanong

MR. OPLE. Madam President, may I express my personal opinion in this respect. I think to require Congress to act as a constituent body before enacting an organic act would be to raise an autonomous region to the same level as the sovereign people of the whole country. And I think the powers of the Congress should be quite sufficient in enacting a law, even if it is now exalted to the level of an organic act for the purpose of providing a basic law for an autonomous region without having to transform itself into a constituent assembly. We are dealing still with one subordinate subdivision of the State even if it is now vested with certain autonomous powers on which its own legislature can pass laws. FR. BERNAS. So the questions I have raised so far with respect to this organic act are: What segment of the population will participate in the plebiscite? In what capacity would the legislature be acting when it passes this? Will it be a constituent assembly or merely a legislative body? What is the nature, therefore, of this organic act in relation to ordinary statutes and the Constitution? Finally, if we are going to amend this organic act, what process will be followed? MR. NOLLEDO. May I answer that, please, in the light of what is now appearing in our report. First, only the people who are residing in the units composing the regions should be allowed to participate in the plebiscite. Second, the organic act has the character of a charter passed by the Congress, not as a constituent assembly, but as an ordinary legislature and, therefore, the organic act will still be subject to amendments in the ordinary legislative process as now constituted, unless the Gentlemen has another purpose. FR. BERNAS. But with plebiscite again. MR. NOLLEDO. Those who will participate in the plebiscite are those who are directly affected, the inhabitants of the units constitutive of the region. (Emphasis supplied)
[36]

Although R.A. 9054 was enacted later, it reaffirmed the imperativeness of the plebiscite requirement.[37] In fact, R.A. 9054 itself, being the second or later ARMM Organic Act, was subjected to and ratified in a plebiscite. The first ARMM Organic Act, R.A. 6074, as implemented by E.O. 426, devolved the functions of the DPWH in the ARMM which includes Lanao del Sur (minus Marawi City at the time) [38] to the Regional Government. By creating an office with previously devolved functions, R.A. 8999, in essence, sought to amend R.A. 6074. The amendatory law should therefore first obtain the approval of the people of the ARMM before it could validly take effect. Absent compliance with this requirement, R.A. 8999 has not even become operative. From another perspective, R.A. 8999 was repealed and superseded by R.A. 9054. Where a statute of later date clearly reveals an intention on the part of the legislature to abrogate a prior act on the subject, that intention must be given effect. Of course, the intention to repeal must be clear and manifest. [39] Implied repeal by irreconcilable inconsistency takes place when the two statutes cover the same subject matter; they are clearly inconsistent and incompatible with each other that they cannot be reconciled or harmonized; and both cannot be given effect, that is, that one law cannot be enforced without nullifying the other.[40]

Disomangcop vs. Datumanong

The Court has also held that statutes should be construed in light of the objective to be achieved and the evil or mischief to be suppressed, and they should be given such construction as will advance the object, suppress the mischief and secure the benefits intended. [41] R.A. 9054 is anchored on the 1987 Constitution. It advances the constitutional grant of autonomy by detailing the powers of the ARG covering, among others, Lanao del Sur and Marawi City, one of which is its jurisdiction over regional urban and rural planning. R.A. 8999, however, ventures to reestablish the National Governments jurisdiction over infrastructure programs in Lanao del Sur. R.A. 8999 is patently inconsistent with R.A. 9054, and it destroys the latter laws objective. Clearly, R.A. 8999 is antagonistic to and cannot be reconciled with both ARMM Organic Acts, R.A. 6734 and R.A. 9054. The kernel of the antagonism and disharmony lies in the regional autonomy which the ARMM Organic Acts ordain pursuant to the Constitution. On the other hand, R.A. 8999 contravenes true decentralization which is the essence of regional autonomy. Regional Autonomy Under R.A. 6734 and R.A. 9054 The 1987 Constitution mandates regional autonomy to give a bold and unequivocal answer to the cry for a meaningful, effective and forceful autonomy.[42] According to Commissioner Jose Nolledo, Chairman of the Committee which drafted the provisions, it is an indictment against the status quo of a unitary system that, to my mind, has ineluctably tied the hands of progress in our country . . . our varying regional characteristics are factors to capitalize on to attain national strength through decentralization.[43] The idea behind the Constitutional provisions for autonomous regions is to allow the separate development of peoples with distinctive cultures and traditions.[44] These cultures, as a matter of right, must be allowed to flourish.[45] Autonomy, as a national policy, recognizes the wholeness of the Philippine society in its ethnolinguistic, cultural, and even religious diversities. It strives to free Philippine society of the strain and wastage caused by the assimilationist approach.[46] Policies emanating from the legislature are invariably assimilationist in character despite channels being open for minority representation. As a result, democracy becomes an irony to the minority group.[47] Several commissioners echoed the pervasive sentiment in the plenary sessions in their own inimitable way. Thus, Commissioner Blas Ople referred to the recognition that the Muslim Mindanao and the Cordilleras do not belong to the dominant national community as the justification for conferring on them a measure of legal self -sufficiency, meaning self-government, so that they will flourish politically, economically and culturally, with the hope that after achieving parity with the rest of the country they would give up their own autonomous region in favor of joining the national mainstream.[48] For his part, the Muslim delegate, Commissioner Ahmad Alonto, spoke of the diversity of cultures as the framework for nation-building.[49] Finally, excerpts of the poignant plea of Commissioner Ponciano Bennagen deserve to be quoted verbatim:

. . . They see regional autonomy as the answer to their centuries of struggle against oppression and exploitation. For so long, their names and identities have been debased. Their ancestral lands have been ransacked for their treasures, for their wealth. Their cultures have been defiled, their very lives threatened, and worse, extinguished, all in the name of national development; all in the name of public interest; all in the name of common good; all in the name of the right to property; all in the name of Regalian Doctrine; all in the name of national security. These phrases have meant nothing to our indigenous communities, except for the violation of their human rights.

Disomangcop vs. Datumanong

... Honorable Commissioners, we wish to impress upon you the gravity of the decision to be made by every single one of us in this Commission. We have the overwhelming support of the Bangsa Moro and the Cordillera Constitution. By this we mean meaningful and authentic regional autonomy. We propose that we have a separate Article on the autonomous regions for the Bangsa Moro and Cordillera people clearly spelled out in this Constitution, instead of prolonging the agony of their vigil and their struggle. This, too is a plea for national peace. Let us not pass the buck to the Congress to decide on this. Let us not wash our hands of our responsibility to attain national unity and peace and to settle this problem and rectify past injustices, once and for all.
[50]

The need for regional autonomy is more pressing in the case of the Filipino Muslims and the Cordillera people who have been fighting for it. Their political struggle highlights their unique cultures and the unresponsiveness of the unitary system to their aspirations. [51] The Moros struggle for selfdetermination dates as far back as the Spanish conquest in the Philippines. Even at present, the struggle goes on.[52] Perforce, regional autonomy is also a means towards solving existing serious peace and order problems and secessionist movements. Parenthetically, autonomy, decentralization and regionalization, in international law, have become politically acceptable answers to intractable problems of nationalism, separatism, ethnic conflict and threat of secession.[53] However, the creation of autonomous regions does not signify the establishment of a sovereignty distinct from that of the Republic, as it can be installed only within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines. [54] Regional autonomy is the degree of self-determination exercised by the local government unit vis-vis the central government. In international law, the right to self-determination need not be understood as a right to political separation, but rather as a complex net of legal-political relations between a certain people and the state authorities. It ensures the right of peoples to the necessary level of autonomy that would guarantee the support of their own cultural identity, the establishment of priorities by the communitys internal decision making processes and the management of collective matters by themselves. [55] If self-determination is viewed as an end in itself reflecting a preference for homogeneous, independent nation-states, it is incapable of universal application without massive disruption. However, if self-determination is viewed as a means to an endthat end being a democratic, participatory political and economic system in which the rights of individuals and the identity of minority communities are protectedits continuing validity is more easily perceived.[56] Regional autonomy refers to the granting of basic internal government powers to the people of a particular area or region with least control and supervision from the central government.[57] The objective of the autonomy system is to permit determined groups, with a common tradition and shared social-cultural characteristics, to develop freely their ways of life and heritage, exercise their rights, and be in charge of their own business. This is achieved through the establishment of a special governance regime for certain member communities who choose their own authorities from within the community and exercise the jurisdictional authority legally accorded to them to decide internal community affairs.[58] In the Philippine setting, regional autonomy implies the cultivation of more positive means for national integration. It would remove the wariness among the Muslims, increase their trust in the

Disomangcop vs. Datumanong

government and pave the way for the unhampered implementation of the development programs in the region.[59] Again, even a glimpse of the deliberations of the Constitutional Commission could lend a sense of the urgency and the inexorable appeal of true decentralization:

MR. OPLE. . . . We are writing a Constitution, of course, for generations to come, not only for the present but for our posterity. There is no harm in recognizing certain vital pragmatic needs for national peace and solidarity, and the writing of this Constitution just happens at a time when it is possible for this Commission to help the cause of peace and reconciliation in Mindanao and the Cordilleras, by taking advantage of a heaven-sent opportunity. . . .
[60]

... MR. ABUBAKAR. . . . So in order to foreclose and convince the rest of the of the Philippines that Mindanao autonomy will be granted to them as soon as possible, more or less, to dissuade these armed men from going outside while Mindanao will be under the control of the national government, let us establish an autonomous Mindanao within our effort and capacity to do so within the shortest possible time. This will be an answer to the Misuari clamor, not only for autonomy but for independence.
[61]

... MR. OPLE. . . . The reason for this abbreviation of the period for the consideration of the Congress of the organic acts and their passage is that we live in abnormal times. In the case of Muslim Mindanao and the Cordilleras, we know that we deal with questions of war and peace. These are momentous issues in which the territorial integrity and the solidarity of this country are being put at stake, in a manner of speaking. We are writing a peace Constitution. We hope that the Article on Social Justice can contribute to a climate of peace so that any civil strife in the countryside can be more quickly and more justly resolved. We are providing for autonomous regions so that we give constitutional permanence to the just demands and grievances of our own fellow countrymen in the Cordilleras and in Mindanao. One hundred thousand lives were lost in that struggle in Mindanao, and to this day, the Cordilleras is being shaken by an armed struggle as well as a peaceful and militant struggle. ... Rather than give opportunity to foreign bodies, no matter how sympathetic to the Philippines, to contribute to the settlement of this issue, I think the Constitutional Commission ought not to forego the opportunity to put the stamp of this Commission through definitive action on the settlement of the problems that have nagged us and our forefathers for so long.
[62]

A necessary prerequisite of autonomy is decentralization.[63] Decentralization is a decision by the central government authorizing its subordinates, whether geographically or functionally defined, to exercise authority in certain areas. It involves decision-making by subnational units. It is typically a delegated power, wherein a larger government chooses to delegate certain authority to more local governments. Federalism implies some measure of decentralization, but unitary systems may also decentralize. Decentralization differs intrinsically from federalism in that the

Disomangcop vs. Datumanong

sub-units that have been authorized to act (by delegation) do not possess any claim of right against the central government.[64] Decentralization comes in two formsdeconcentration and devolution. Deconcentration is administrative in nature; it involves the transfer of functions or the delegation of authority and responsibility from the national office to the regional and local offices. This mode of decentralization is also referred to as administrative decentralization.[65] Devolution, on the other hand, connotes political decentralization, or the transfer of powers, responsibilities, and resources for the performance of certain functions from the central government to local government units.[66] This is a more liberal form of decentralization since there is an actual transfer of powers and responsibilities.[67] It aims to grant greater autonomy to local government units in cognizance of their right to self-government, to make them self-reliant, and to improve their administrative and technical capabilities.[68] This Court elucidated the concept of autonomy in Limbona v. Mangelin,[69] thus:

Autonomy is either decentralization of administration or decentralization of power. There is decentralization of administration when the central government delegates administrative powers to political subdivisions in order to broaden the base of government power and in the process to make local governments more responsive and accountable, and ensure their fullest development as selfreliant communities and make them more effective partners in the pursuit of national development and social progress. At the same time, it relieves the central government of the burden of managing local affairs and enables it to concentrate on national concerns. The President exercises general supervision over them, but only to ensure that local affairs are administered according to law. He has no control over their acts in the sense that he can substitute their judgments with his own. Decentralization of power, on the other hand, involves an abdication of political power in the favor of local government units declared to be autonomous. In that case, the autonomous government is free to chart its own destiny and shape its future with minimum intervention from central authorities. According to a constitutional author, decentralization of power amounts to self-immolation, since in that event the autonomous government becomes accountable not to the central authorities but to its constituency.
In the case, the Court reviewed the expulsion of a member from the Sangguniang Pampook, Autonomous Region. It held that the Court may assume jurisdiction as the local government unit, organized before 1987, enjoys autonomy of the former category. It refused, though, to resolve whether the grant of autonomy to Muslim Mindanao under the 1987 Constitution involves, truly, an effort to decentralize power rather than mere administration.[70] A year later, in Cordillera Broad Coalition v. Commission on Audit,[71] the Court, with the same composition, ruled without any dissent that the creation of autonomous regions contemplates the grant of political autonomyan autonomy which is greater than the administrative autonomy granted to local government units. It held that the constitutional guarantee of local autonomy in the Constitution (Art. X, Sec. 2) refers to administrative autonomy of local government units or, cast in more technical language, the decentralization of government authority. On the other hand, the creation of autonomous regions in Muslim Mindanao and the Cordilleras, which is peculiar to the 1987 Constitution, contemplates the grant of political autonomy and not just administrative autonomy to these regions.[72]

Disomangcop vs. Datumanong

And by regional autonomy, the framers intended it to mean meaningful and authentic regional autonomy.[73] As articulated by a Muslim author, substantial and meaningful autonomy is the kind of local self-government which allows the people of the region or area the power to determine what is best for their growth and development without undue interference or dictation from the central government.[74] To this end, Section 16, Article X[75] limits the power of the President over autonomous regions. [76] In essence, the provision also curtails the power of Congress over autonomous regions.[77] Consequently, Congress will have to re-examine national laws and make sure that they reflect the Constitution s adherence to local autonomy. And in case of conflicts, the underlying spirit which should guide its resolution is the Constitutions desire for genuine local autonomy. [78] The diminution of Congress powers over autonomous regions was confirmed in Ganzon v. Court of Appeals,[79] wherein this Court held that the omission (of as may be provided by law) signifies nothing more than to underscore local governments autonomy from Congress and to break Congress control over local government affairs. This is true to subjects over which autonomous regions have powers, as specified in Sections 18 and 20, Article X of the 1987 Constitution. Expressly not included therein are powers over certain areas. Worthy of note is that the area of public works is not excluded and neither is it reserved for the National Government.The key provisions read, thus:

SEC. 18. The Congress shall enact an organic act for each autonomous region with the assistance and participation of the regional consultative commission composed of representatives appointed by the President from a list of nominees from multisectoral bodies. The organic act shall define the basic structure of government for the region consisting of the executive department and legislative assembly, both of which shall be elective and representative of the constituent political units. The organic acts shall likewise provide for special courts with personal, family and property law jurisdiction consistent with the provisions of the Constitution and national laws. The creation of the autonomous region shall be effective when approved by majority of the votes cast by the constituent units in a plebiscite called for the purpose, provided that only provinces, cities, and geographic areas voting favorably in such plebiscite shall be included in the autonomous region. SEC. 20. Within its territorial jurisdiction and subject to the provisions of this Constitution and national laws, the organic act of autonomous regions shall provide for legislative powers over: (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;

Disomangcop vs. Datumanong

(8) Preservation and development of the cultural heritage; and (9) Such other matters as may be authorized by law for the promotion of general welfare of the people of the region. (Emphasis supplied)
E.O. 426 officially devolved the powers and functions of the DPWH in ARMM to the Autonomous Regional Government (ARG). Sections 1 and 2 of E.O. 426 provide:

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

Disomangcop vs. Datumanong

7. Perform such other related duties and responsibilities within the ARMM as may be assigned or delegated by the Regional Governor or as may be provided by law. (Emphasis supplied)
More importantly, Congress itself through R.A. 9054 transferred and devolved the administrative and fiscal management of public works and funds for public works to the ARG. Section 20, Article VI of R.A. 9054 provides:

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

Disomangcop vs. Datumanong

and other public works within the ARMM. Its scope of power includes the planning, design, construction and supervision of public works. According to R.A. 9054, the reach of the Regional Government enables it to appropriate, manage and disburse all public work funds allocated for the region by the central government. The use of the word powers in E.O. 426 manifests an unmistakable case of devolution. In this regard, it is not amiss to cite Opinion No. 120, S. 1991[82] of the Secretary of Justice on whether the national departments or their counterpart departments in the ARG are responsible for implementation of roads, rural water supply, health, education, women in development, agricultural extension and watershed management. Referring to Section 2, Article V of R.A. 6734 which enumerates the powers of the ARG, he states:

It is clear from the foregoing provision of law that except for the areas of executive power mentioned therein, all other such areas shall be exercised by the Autonomous Regional Government (ARG) of the Autonomous Region in Muslim Mindanao. It is noted that programs relative to infrastructure facilities, health, education, women in development, agricultural extension and watershed management do not fall under any of the exempted areas listed in the abovequoted provision of law. Thus, the inevitable conclusion is that all these spheres of executive responsibility have been transferred to the ARG. Reinforcing the aboveview (sic) are the various executive orders issued by the President providing for the devolution of the powers and functions of specified executive departments of the National Government to the ARG. These are E.O. Nos. 425 (Department of Labor and Employment, Local Government, Tourism, Environment and Natural Resources, Social Welfare and Development and Science and Technology), 426 (Department of Public Works and Highways), 459 (Department of Education, Culture and Sports) and 460 (Department of Agriculture). The execution of projects on infrastructure, education, women, agricultural extension and watershed management within the Autonomous Region of Muslim Mindanao normally fall within the responsibility of one of the aforementioned executive departments of the National Government, but by virtue of the aforestated EOs, such responsibility has been transferred to the ARG.
E.O. 426 was issued to implement the provisions of the first ARMM Organic Act, R.A. 6734 the validity of which this Court upheld in the case of Abbas v. Commission on Elections.[83] In Section 4, Article XVIII of said Act, central government or national government offices and agencies in the autonomous region which are not excluded under Section 3, Article IV [84] of this Organic Act, shall be placed under the control and supervision of the Regional Government pursuant to a schedule prescribed by the oversight committee. Evidently, the intention is to cede some, if not most, of the powers of the national government to the autonomous government in order to effectuate a veritable autonomy. The continued enforcement of R.A. 8999, therefore, runs afoul of the ARMM Organic Acts and results in the recall of powers which have previously been handed over. This should not be sanctioned, elsewise the Organic Acts desire for greater autonomy for the ARMM in accordance with the Constitution would be quelled. It bears stressing that national laws are subject to the Constitution one of whose state policies is to ensure the autonomy of autonomous regions. Section 25, Article II of the 1987 Constitution states:

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

Disomangcop vs. Datumanong

R.A. 8999 has made the DPWH-ARMM effete and rendered regional autonomy illusory with respect to infrastructure projects. The Congressional Record shows, on the other hand, th at the lack of an implementing and monitoring body within the area has hindered the speedy implementation, of infrastructure projects.[85] Apparently, in the legislatures estimation, the existing DPWH-ARMM engineering districts failed to measure up to the task. But if it was indeed the case, the problem could not be solved through the simple legislative creation of an incongruous engineering district for the central government in the ARMM. As it was, House Bill No. 995 which ultimately became R.A. 8999 was passed in record time on second reading (not more than 10 minutes), absolutely without the usual sponsorship speech and debates.[86] The precipitate speed which characterized the passage of R.A. 8999 is difficult to comprehend since R.A. 8999 could have resulted in the amendment of the first ARMM Organic Act and, therefore, could not take effect without first being ratified in a plebiscite. What is more baffling is that in March 2001, or barely two (2) months after it enacted R.A. 8999 in January 2001, Congress passed R.A. 9054, the second ARMM Organic Act, where it reaffirmed the devolution of the DPWH in ARMM, including Lanao del Sur and Marawi City, to the Regional Government and effectively repealed R.A. 8999. DPWH Department Order No. 119 Now, the question directly related to D.O. 119. D.O. 119 creating the Marawi Sub-District Engineering Office which has jurisdiction over infrastructure projects within Marawi City and Lanao del Sur is violative of the provisions of E.O. 426. The Executive Order was issued pursuant to R.A. 6734 which initiated the creation of the constitutionally-mandated autonomous region[87] and which defined the basic structure of the autonomous government.[88] E.O. 426 sought to implement the transfer of the control and supervision of the DPWH within the ARMM to the Autonomous Regional Government. In particular, it identified four (4) District Engineering Offices in each of the four (4) provinces, namely: Lanao del Sur, Maguindanao, Sulu and Tawi-Tawi.[89] Accordingly, the First Engineering District of the DPWH-ARMM in Lanao del Sur has jurisdiction over the public works within the province. The office created under D.O. 119, having essentially the same powers, is a duplication of the DPWH-ARMM First Engineering District in Lanao del Sur formed under the aegis of E.O. 426. The department order, in effect, takes back powers which have been previously devolved under the said executive order. D.O. 119 runs counter to the provisions of E.O. 426. The DPWHs order, like spring water, cannot rise higher than its source of powerthe Executive. The fact that the department order was issued pursuant to E.O. 124 signed and approved by President Aquino in her residual legislative powersis of no moment. It is a finely-imbedded principle in statutory construction that a special provision or law prevails over a general one. [90] Lex specialis derogant generali. As this Court expressed in the case of Leveriza v. Intermediate Appellate Court,[91] another basic principle of statutory construction mandates that general legislation must give way to special legislation on the same subject, and generally be so interpreted as to embrace only cases in which the special provisions are not applicable, that specific statute prevails over a general statute and that where two statutes are of equal theoretical application to a particular case, the one designed therefor specially should prevail. E.O. No. 124, upon which D.O. 119 is based, is a general law reorganizing the Ministry of Public Works and Highways while E.O. 426 is a special law transferring the control and supervision of the DPWH offices within ARMM to the Autonomous Regional Government. The latter statute specifically applies to DPWH-ARMM offices. E.O. 124 should therefore give way to E.O. 426 in the instant case. In any event, the ARMM Organic Acts and their ratification in a plebiscite in effect superseded E.O. 124. In case of an irreconcilable conflict between two laws of different vintages, the later enactment prevails because it is the later legislative will.[92]

Disomangcop vs. Datumanong

Further, in its repealing clause, R.A. 9054 states that all laws, decrees, orders, rules and regulations, and other issuances or parts thereof, which are inconsistent with this Organic Act, are hereby repealed or modified accordingly.[93] With the repeal of E.O. 124 which is the basis of D.O. 119, it necessarily follows that D.O. 119 was also rendered functus officio by the ARMM Organic Acts. Grave abuse of discretion Without doubt, respondents committed grave abuse of discretion. They implemented R.A. 8999 despite its inoperativeness and repeal. They also put in place and maintained the DPWH Marawi SubDistrict Engineering Office in accordance with D.O. 119 which has been rendered functus officio by the ARMM Organic Acts. Still, on the issue of grave abuse of discretion, this Court, however, cannot uphold petitioners argument that R.A. 8999 was signed into law under suspicious circumstances to support the assertion that there was a capricious and whimsical exercise of legislative authority. Once more, this Court cannot inquire into the wisdom, merits, propriety or expediency of the acts of the legislative branch. Likewise, the alleged lack of consultation or public hearing with the affected agency during the inception of the law does not render the law infirm. This Court holds that the Congress did not transgress the Constitution nor any statute or House Rule in failing to invite a resource person from the DPWH-ARMM during the Committee meeting. Section 27, Rule VII of the Rules of the House [94] only requires that a written notice be given to all the members of a Committee seven (7) calendar days before a regularly scheduled meeting, specifying the subject matter of the meeting and the names of the invited resource persons. And it must be emphasized that the questions of who to invite and whether there is a need to invite resource persons during Committee meetings should be addressed solely to Congress in its plenary legislative powers.[95] Conclusion The repeal of R.A. 8999 and the functus officio state of D.O. 119 provide the necessary basis for the grant of the writs of certiorari and prohibition sought by the petitioners. However, there is no similar basis for the issuance of a writ of mandamus to compel respondent DBM Secretary to release funds appropriated for public works projects in Marawi City and Lanao del Sur to the DPWH-ARMM First Engineering District in Lanao del Sur and to compel respondent DPWH Secretary to allow the DPWHARMM, First Engineering District in Lanao del Sur to implement all public works projects within its jurisdictional area. Section 20, Article VI of R.A. 9054 clearly provides that (f)unds for infrastructure in the autonomous region allocated by the central government or national government shall only be appropriated through a Regional Assembly Public Works Act passed by the Regional Assembly. There is no showing that such Regional Assembly Public Works Act has been enacted. WHEREFORE, considering that Republic Act No. 9054 repealed Republic Act No. 8999 and rendered DPWH Department Order No. 119 functus officio, the petitioninsofar as it seeks the writs of certiorari and prohibition is GRANTED. Accordingly, let a writ of prohibition ISSUE commanding respondents to desist from implementing R.A. 8999 and D.O. 119, and maintaining the DPWH Marawi Sub-District Engineering Office and the First Engineering District of the Province of Lanao del Sur comprising the City of Marawi and the municipalities within the First District of Lanao del Sur. However, the petition insofar as it seeks a writ of mandamus against respondents is DENIED. No costs. SO ORDERED.

Province of Rizal vs. Executive Secretary

EN BANC
PROVINCE OF RIZAL, MUNICIPALITY OF SAN MATEO, PINTONG BOCAUE MULTIPURPOSE COOPERATIVE, CONCERNED CITIZENS OF RIZAL, INC., ROLANDO E. VILLACORTE, BERNARDO HIDALGO, ANANIAS EBUENGA, VILMA T. MONTAJES, FEDERICO MUNAR, JR., ROLANDO BEAS, SR., ET AL., and KILOSBAYAN, INC., P e t i t i o n e r s, G.R. No. 129546

Present:

DAVIDE, JR., C. J., PUNO, PANGANIBAN, QUISUMBING, YNARES-SANTIAGO, SANDOVAL-GUTIERREZ,

- versus -

CARPIO, MARTINEZ, CORONA,

EXECUTIVE SECRETARY, SECRETARY OF ENVIRONMENT & NATURAL RESOURCES, LAGUNA LAKE DEVELOPMENT AUTHORITY, SECRETARY OF PUBLIC WORKS & HIGHWAYS, SECRETARY OF BUDGET & MANAGEMENT, METRO MANILA DEVELOPMENT AUTHORITY and THE HONORABLE COURT OF APPEALS, R e s p o n d e n t s.

CARPIO MORALES, CALLEJO, SR., AZCUNA, TINGA, CHICO-NAZARIO, and GARCIA, JJ.

Province of Rizal vs. Executive Secretary

Promulgated:

December 13, 2005

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

DECISION

CHICO-NAZARIO, J.:

The earth belongs in usufruct to the living.[1]

At the height of the garbage crisis plaguing Metro Manila and its environs, parts of the Marikina Watershed Reservation were set aside by the Office of the President, through Proclamation No. 635 dated 28 August 1995, for use as a sanitary landfill and similar waste disposal applications. In fact, this site, extending to more or less 18 hectares, had already been in operation since 19 February 1990[2] for the solid wastes of Quezon City, Marikina, San Juan, Mandaluyong, Pateros, Pasig, and Taguig.[3]

Province of Rizal vs. Executive Secretary

This is a petition filed by the Province of Rizal, the municipality of San Mateo, and various concerned citizens for review on certiorari of the Decision of the Court of Appeals in CA-G.R. SP No. 41330, denying, for lack of cause of action, the petition for certiorari, prohibition and mandamus with application for a temporary restraining order/writ of preliminary injunction assailing the legality and constitutionality of Proclamation No. 635.

The facts are documented in painstaking detail.

On 17 November 1988, the respondent Secretaries of the Department of Public Works and Highways (DPWH) and the Department of Environment and Natural Resources (DENR) and the Governor of the Metropolitan Manila Commission (MMC) entered into a Memorandum of Agreement (MOA),[4] which provides in part:
1. The DENR agrees to immediately allow the utilization by the Metropolitan Manila Commission of its land property located at Pintong Bocaue in San Mateo, Rizal as a sanitary landfill site, subject to whatever restrictions that the government impact assessment might require.

2.

Upon signing of this Agreement, the DPWH shall commence the construction/development of said dumpsite.

3.

The MMC shall: a) take charge of the relocation of the families within and around the site; b) oversee the development of the areas as a sanitary landfill; c) coordinate/monitor the construction of infrastructure facilities by the DPWH in the said site; and d) ensure that the necessary civil works are properly undertaken to safeguard against any negative environmental impact in the area.

Province of Rizal vs. Executive Secretary

On 7, 8 and 10 February 1989, the Sangguniang Bayan of San Mateo wrote Gov. Elfren Cruz of the MMC, Sec. Fiorello Estuar of the DPWH, the Presidential Task Force on Solid Waste Management, Executive Secretary Catalino Macaraig, and Sec. Fulgencio Factoran, Jr., pointing out that it had recently passed a Resolution banning the creation of dumpsites for Metro Manila garbage within its jurisdiction, asking that their side be heard, and that the addressees suspend and temporarily hold in abeyance all and any part of your operations with respect to the San Mateo Landfill Dumpsite. No action was taken on these letters.

It turns out that the land subject of the MOA of 17 November 1988 and owned by the DENR was part of the Marikina Watershed Reservation Area. Thus, on 31 May 1989, forest officers of the Forest Engineering and Infrastructure Unit of the Community Environment and Natural Resource Office, (CENRO) DENR-IV, Rizal Province, submitted a Memorandum[5] on the On-going Dumping Site Operation of the MMC inside (the) Upper Portion of Marikina Watershed Reservation, located at Barangay Pintong Bocaue, San Mateo, Rizal, and nearby localities. Said Memorandum reads in part:
Observations:

3.1 3.2

The subject area is arable and agricultural in nature; Soil type and its topography are favorable for agricultural and forestry productions;

...

3.5

Said Dumping Site is observed to be confined within the said Watershed Reservation, bearing in the northeastern part of Lungsod Silangan Townsite Reservation. Such illegal Dumping Site operation inside (the) Watershed Reservation is in violation of P.D. 705, otherwise known as the Revised Forestry Code, as amended. . .

Province of Rizal vs. Executive Secretary

Recommendations:

5.1 The MMC Dumping Site Inside Marikina Watershed Reservation, particularly at Brgy. Pintong Bocaue, San Mateo, Rizal and at Bo. Pinugay, Baras/Antipolo, Rizal which are the present garbage zones must totally be stopped and discouraged without any political intervention and delay in order to save our healthy ecosystems found therein, to avoid much destruction, useless efforts and lost (sic) of millions of public funds over the land in question; (Emphasis ours)

On 19 June 1989, the CENRO submitted another Investigation Report[6] to the Regional Executive Director which states in part that:
1. About two (2) hectares had been excavated by bulldozers and garbage dumping operations are going on.

2.

The dumping site is without the concurrence of the Provincial Governor, Rizal Province and without any permit from DENR who has functional jurisdiction over the Watershed Reservation; and

3.

About 1,192 families residing and cultivating areas covered by four (4) Barangays surrounding the dumping site will adversely be affected by the dumping operations of MMC including their sources of domestic water supply. x x x x

Province of Rizal vs. Executive Secretary

On 22 January 1990, the CENRO submitted still another Investigation Report[7] to the Regional Executive Director which states that:
Findings show that the areas used as Dumping Site of the MMC are found to be within the Marikina Watershed which are part of the Integrated Social Forestry Project (ISF) as per recorded inventory of Forest Occupancy of this office.

It also appears that as per record, there was no permit issued to the MMC to utilize these portions of land for dumping purposes.

It is further observed that the use of the areas as dumping site greatly affects the ecological balance and environmental factors in this community.

On 19 February 1990, the DENR Environmental Management Bureau, through Undersecretary for Environment and Research Celso R. Roque, granted the Metro Manila Authority (MMA [formerly MMC]) an Environmental Compliance Certificate (ECC) for the operation of a two-and-a-half-hectare garbage dumpsite.

The ECC was sought and granted to comply with the requirement of Presidential Decree No. 1586 Establishing an Environmental Impact Statement System, Section 4 of which states in part that, No persons, partnership or corporation shall undertake or operate any such declared environmentally critical project or area without first securing an Environmental Compliance Certificate. Proclamation No. 2146, passed on 14 December 1981, designates all areas declared by law as national parks, watershed reserves, wildlife preserves, and sanctuaries as Environmentally Critical Areas.

Province of Rizal vs. Executive Secretary

On 09 March 1990, respondent Laguna Lake Development Authority (LLDA), through its Acting General Manager, sent a letter[8] to the MMA, which reads in part:
Through this letter we would like to convey our reservation on the choice of the sites for solid waste disposal inside the watershed of Laguna Lake. As you may already know, the Metropolitan Waterworks and Sewerage System (MWSS) has scheduled the abstraction of water from the lake to serve the needs of about 1.2 million residents of Muntinlupa, Paranaque, Las Pinas and Bacoor, Cavite by 1992. Accordingly, the Laguna Lake Development Authority (LLDA) is accelerating its environmental management program to upgrade the water quality of the lake in order to make it suitable as a source of domestic water supply the whole year round. The said program regards dumpsites as incompatible within the watershed because of the heavy pollution, including the risk of diseases, generated by such activities which would negate the governments efforts to upgrade the water quality of the lake. Consequently, please consider our objection to the proposed location of the dumpsites within the watershed. (Emphasis supplied by petitioners)

On 31 July 1990, less than six months after the issuance of the ECC, Undersecretary Roque suspended the ECC in a letter[9] addressed to the respondent Secretary of DPWH, stating in part that:
Upon site investigation conducted by Environmental Management Bureau staff on development activities at the San Mateo Landfill Site, it was ascertained that ground slumping and erosion have resulted from improper development of the site . We believe that this will adversely affect the environmental quality in the area if the proper remedial measures are not instituted in the design of the landfill site. This is therefore contradictory to statements made in the Environmental Impact Statement (EIS) submitted that above occurrences will be properly mitigated.

In view of this, we are forced to suspend the Environmental Compliance Certificate (ECC) issued until appropriate modified plans are submitted and approved by this Office for implementation. (Emphasis ours)

Province of Rizal vs. Executive Secretary

On 21 June 1993, the Acting Mayor of San Mateo, Enrique Rodriguez, Jr., Barangay Captain Dominador Vergara, and petitioner Rolando E. Villacorte, Chairman of the Pintong Bocaue Multipurpose Cooperative (PBMC) wrote[10] then President Fidel V. Ramos expressing their objections to the continued operation of the MMA dumpsite for causing unabated pollution and degradation of the Marikina Watershed Reservation.

On 14 July 1993, another Investigation Report[11] submitted by the Regional Technical Director to the DENR Undersecretary for Environment and Research contained the following findings and recommendations:
Remarks and Findings:

....

5. Interview with Mr. Dayrit, whose lot is now being endangered because soil erosion have (sic) caused severe siltation and sedimentation of the Dayrit Creek which water is greatly polluted by the dumping of soil bulldozed to the creek;

6. Also interview with Mrs. Vilma Montajes, the multi-grade teacher of Pintong Bocaue Primary School which is located only about 100 meters from the landfill site. She disclosed that bad odor have (sic) greatly affected the pupils who are sometimes sick with respiratory illnesses. These odors show that MMA have (sic) not instituted/sprayed any disinfectant chemicals to prevent air pollution in the area. Besides large flies (Bangaw) are swarming all over the playground of the school. The teacher also informed the undersigned that plastic debris are being blown whenever the wind blows in their direction.

Province of Rizal vs. Executive Secretary

7. As per investigation report there are now 15 hectares being used as landfill disposal sites by the MMA. The MMA is intending to expand its operation within the 50 hectares.

8. Lots occupied within 50 hectares are fully planted with fruit bearing trees like Mangoes, Santol, Jackfruit, Kasoy, Guyabano, Kalamansi and Citrus which are now bearing fruits and being harvested and marketed to nearby San Mateo Market and Masinag Market in Antipolo.

....

Recommendations:

1. As previously recommended, the undersigned also strongly recommend(s) that the MMA be made to relocate the landfill site because the area is within the Marikina Watershed Reservation and Lungsod Silangan. The leachate treatment plant ha(s) been eroded twice already and contaminated the nearby creeks which is the source of potable water of the residents. The contaminated water also flows to Wawa Dam and Boso-boso River which also flows to Laguna de Bay.

2. The proposed Integrated Social Forestry Project be pushed through or be approved. ISF project will not only uplift the socio-economic conditions of the participants but will enhance the rehabilitation of the Watershed considering that fruit bearing trees are vigorously growing in the area. Some timber producing species are also planted like Mahogany and Gmelina Arboiea. There are also portions where dipterocarp residuals abound in the area.

3. The sanitary landfill should be relocated to some other area, in order to avoid any conflict with the local government of San Mateo and the nearby affected residents who have been in the area for almost 10-20 years.

Province of Rizal vs. Executive Secretary

On 16 November 1993, DENR Secretary Angel C. Alcala sent MMA Chairman Ismael A. Mathay, Jr. a letter[12] stating that after a series of investigations by field officials of the DENR, the agency realized that the MOA entered into on 17 November 1988 is a very costly error because the area agreed to be a garbage dumpsite is inside the Marikina Watershed Reservation. He then strongly recommended that all facilities and infrastructure in the garbage dumpsite in Pintong Bocaue be dismantled, and the garbage disposal operations be transferred to another area outside the Marikina Watershed Reservation to protect the health and general welfare of the residents of San Mateo in particular and the residents of Metro Manila in general.

On 06 June 1995, petitioner Villacorte, Chairman of the PBMC, wrote[13] President Ramos, through the Executive Secretary, informing the President of the issues involved, that the dumpsite is located near three public elementary schools, the closest of which is only fifty meters away, and that its location violates the municipal zoning ordinance of San Mateo and, in truth, the Housing and Land Use Regulatory Board had denied the then MMA chairmans application for a locational clearance on this ground.

On

21

August

1995,

the Sangguniang

Bayan of

San

Mateo

issued

Resolution[14] expressing a strong objection to the planned expansion of the landfill operation in Pintong Bocaue and requesting President Ramos to disapprove the draft Presidential Proclamation segregating 71.6 Hectares from Marikina Watershed Reservation for the landfill site in Pintong Bocaue, San Mateo, Rizal.

Despite the various objections and recommendations raised by the government agencies aforementioned, the Office of the President, through Executive Secretary Ruben Torres, signed

Province of Rizal vs. Executive Secretary

and issued Proclamation No. 635 on 28 August 1995, Excluding from the Marikina Watershed Reservation Certain Parcels of Land Embraced Therein for Use as Sanitary Landfill Sites and Similar Waste Disposal Under the Administration of the Metropolitan Manila Development Authority. The pertinent portions thereof state:
WHEREAS, to cope with the requirements of the growing population in Metro Manila and the adjoining provinces and municipalities, certain developed and open portions of the Marikina Watershed Reservation, upon the recommendation of the Secretary of the Department of Environment and Natural Resources should now be excluded form the scope of the reservation;

WHEREAS, while the areas delineated as part of the Watershed Reservations are intended primarily for use in projects and/or activities designed to contain and preserve the underground water supply, other peripheral areas had been included within the scope of the reservation to provide for such space as may be needed for the construction of the necessary structures, other related facilities, as well as other priority projects of government as may be eventually determined;

WHEREAS, there is now an urgent need to provide for, and develop, the necessary facilities for the disposal of the waste generated by the population of Metro Manila and the adjoining provinces and municipalities, to ensure their sanitary and /or hygienic disposal;

WHEREAS, to cope with the requirements for the development of the waste disposal facilities that may be used, portions of the peripheral areas of the Marikina Watershed Reservation, after due consideration and study, have now been identified as suitable sites that may be used for the purpose;

WHEREAS, the Secretary of the Department of Environment and Natural Resources has recommended the exclusion of these areas that have been so identified from the Marikina Watershed Reservation so that they may then be developed for the purpose;

Province of Rizal vs. Executive Secretary

NOW, THEREFORE, for and in consideration of the aforecited premises, I, Fidel V. Ramos, President of the Philippines, by virtue of the powers vested in me by law, do hereby ordain:

Section 1. General That certain parcels of land, embraced by the Marikina Watershed Reservation, were found needed for use in the solid waste disposal program of the government in Metropolitan Manila, are hereby excluded from that which is held in reserve and are now made available for use as sanitary landfill and such other related waste disposal applications.

Section 2. Purpose The areas being excluded from the Marikina Watershed Reservation are hereby placed under the administration of the Metropolitan Manila Development Authority, for development as Sanitary Landfill, and/or for use in the development of such other related waste disposal facilities that may be used by the cities and municipalities of Metro Manila and the adjoining province of Rizal and its municipalities.

Section 3. Technical Description Specifically, the areas being hereby excluded from the Marikina Watershed Reservation consist of two (2) parcels, with an aggregate area of approximately ONE MILLION SIXTY THOUSAND FIVE HUNDRED TWENTY NINE (1,060,529) square meters more or less, as follows: x x x x

Section 4. Reservations The development, construction, use and/or operation of any facility that may be established within the parcel of land herein excluded from the Marikina Watershed Reservation shall be governed by existing laws, rules and regulations pertaining to environmental control and management. When no longer needed for sanitary landfill purposes or the related waste disposal activities, the parcels of land subject of this proclamation shall revert back as part of the Marikina Watershed Reservation, unless otherwise authorized.

Province of Rizal vs. Executive Secretary

On 06 September 1995, Director Wilfrido S. Pollisco of the Protected Areas and Wildlife Bureau wrote the DENR Secretary to express the bureaus stand against the dumpsite at Pintong Bocaue, and that it is our view . . . that the mere presence of a garbage dumpsite inside a watershed reservation is definitely not compatible with the very purpose and objectives for which the reservation was established.

On 24 November 1995, the petitioners Municipality of San Mateo and the residents of Pintong Bocaue, represented by former Senator Jovito Salonga, sent a letter to President Ramos requesting him to reconsider Proclamation No. 635. Receiving no reply, they sent another letter on 02 January 1996 reiterating their previous request.

On 04 March 1996, then chairman of the Metro Manila Development Authority (MMDA [formerly MMA]) Prospero I. Oreta addressed a letter to Senator Salonga, stating in part that:
.

2.

Considering the circumstances under which we are pursuing the project, we are certain you will agree that, unless we are prepared with a better alternative, the project simply has to be pursued in the best interest of the greater majority of the population, particularly their health and welfare.

2.1 The San Mateo Sanitary Landfill services, at least, 38% of the waste disposal site requirements of Metro Manila where an estimated 9 million population reside.

2.2 Metro Manila is presently estimated to be generating, at least, 15,700 cubic meters of household or municipal waste, a 1.57 hectare of land area will be filled in a months time with a pile 31 meters high of garbage, or in a year, the accumulated volume will require 18.2 hectares.

Province of Rizal vs. Executive Secretary

....

4. The sanitary landfill projects are now on their fifth year of implementation. The amount of effort and money already invested in the project by the government cannot easily be disregarded, much more set aside in favor of the few settlers/squatters who chose to ignore the earlier notice given to them that the area would be used precisely for the development of waste disposal sites, and are now attempting to arouse opposition to the project.

4.2 There is no place within the jurisdiction of Metro Manila, with an area big enough to accommodate at least 3 to 5 years of waste disposal requirements. x x x x

4.21 The present site at San Mateo was selected because, at the time consideration was being made, and up to the present, it is found to have the attributes that positively respond to the criteria established:

4.21.1 The site was a government property and would not require any outlay for it to be acquired.

4.21.2 It is far from any sizeable community/settlements that could be affected by the development that would be introduced and yet, was within economic hauling distance from the areas they are designed to serve.

4.21.21 At the time it was originally decided to locate the landfills at the present site, there were not more that fifteen (15) settlers in the area and they had hardly established themselves. The community settlements were located far from the site.

Province of Rizal vs. Executive Secretary

4.21.22 The area was hardly accessible, especially to any public transport. The area was being served by a public utility jeep that usually made only two (2) trips daily. During the rainy season, it could only be reached by equipping the vehicle with tire chains to traverse the slippery muddy trail roads.

4.21.3 There was, at least, seventy-three (73) hectares available at the site.

4.3 While the site was within the Marikina Watershed Reservation under the administration of the DENR, the site was located at the lower periphery of the buffer zone; was evaluated to be least likely to affect the underground water supply; and could, in fact, be excluded from the reservation.

4.31 It was determined to be far from the main water containment area for it to pose any immediate danger of contaminating the underground water, in case of a failure in any of the mitigating measures that would be installed.

4.32 It was likewise too far from the nearest body of water, the Laguna Lake, and the distance, plus the increasing accumulation of water from other tributaries toward the lake, would serve to dilute and mitigate any contamination it may emit, in case one happened.

4.33

To resolve the recurring issue regarding its being located within the Marikina Watershed Reservation, the site had been recommended by the DENR, and approved by the President, to already be excluded from the Marikina Watershed reservation and placed under the administration of MMDA, since the site was deemed to form part of the land resource reserve then commonly referred to as buffer zone.

Province of Rizal vs. Executive Secretary

5.

Contrary to the impression that you had been given, relocating the site at this point and time would not be easy, if not impracticable, because aside from the investments that had been made in locating the present site, further investments have been incurred in:

5.1 The conduct of the technical studies for the development being implemented. Through a grant-in-aid from the World Bank, US$600,000 was initially spent for the conduct of the necessary studies on the area and the design of the landfill. This was augmented by, at least, another P1.5 million from the government for the studies to be completed, or a total cost at the time (1990) of approximately P20 million.

5.2. Additionally, the government has spent approximately P33 million in improving on the roadway to make the site accessible from the main road/highway.

5.3 To achieve the necessary economies in the development of the site, the utilities had been planned so that their use could be maximized. These include the access roads, the drainage system, the leacheate collection system, the gas collection system, and the waste water treatment system. Their construction are designed so that instead of having to construct independent units for each area, the use of existing facilities can be maximized through a system of interconnection. On the average, the government is spending P14.8 million to develop a hectare of sanitary landfill area.

6.

Despite the preparations and the investments that are now being made on the project, it is estimated that the total available area, at an accelerated rate of disposal, assuming that all open dump sites were to be closed, will only last for 39 months.

6.1 We are still hard pressed to achieve advanced development on the sites to assure against any possible crisis in garbage from again being experienced in Metro Manila, aside from having to look for the additional sites that may be used after the capacities shall have been exhausted.

Province of Rizal vs. Executive Secretary

6.2 Faced with the prospects of having the 15,700 cubic meters of garbage generated daily strewn all over Metro Manila, we are certain you will agree that it would be futile to even as much as consider a suspension of the waste disposal operations at the sanitary landfills.

On 22 July 1996, the petitioners filed before the Court of Appeals a civil action for certiorari, prohibition and mandamus with application for a temporary restraining order/writ of preliminary injunction. The hearing on the prayer for preliminary injunction was held on 14 August 1996.

On 13 June 1997, the court a quo rendered a Decision,[15] the dispositive part of which reads:
WHEREFORE, the petition for certiorari, prohibition and mandamus with application for a temporary restraining order/writ of preliminary injunction for lack of cause of action, is hereby DENIED.[16]

Hence, this petition for review on certiorari of the above decision on the following grounds:

THE COURT OF APPEALS ERRED AND ABUSED ITS DISCRETION IN DELIBERATELY IGNORING THE SIGNIFICANT FACT THAT PRESIDENTIAL PROCLAMATION NO. 635 WAS BASED ON A

Province of Rizal vs. Executive Secretary

BRAZEN FORGERY IT WAS SUPPOSEDLY ISSUED, AS STATED IN THE PROCLAMATION ITSELF AND REPEATEDLY ASSERTED BY RESPONDENTS IN THEIR COMMENT, ON THE BASIS OF THE ALLEGED RECOMMENDATION OF THE DENR SECRETARY DATED JUNE 26, 1995 BUT WHICH ASSERTION WAS DENOUNCED BY THE THEN SECRETARY ANGEL C. ALCALA HIMSELF IN A SWORN STATEMENT DATED SEPTEMBER 18, 1996 AND AGAIN DURING THE SPECIAL HEARING OF THE CASE IN THE COURT OF APPEALS ON NOVEMBER 13, 1996 AS A FORGERY SINCE HIS SIGNATURE ON THE ALLEGED RECOMMENDATION HAD BEEN FALSIFIED, AS NOW ADMITTED BY RESPONDENTS THEMSELVES IN THEIR COMMENT FILED WITH THE COURT OF APPEALS, THROUGH THE OFFICE OF THE SOLICITOR GENERAL.

II

THE COURT OF APPEALS ERRED AND ABUSED ITS DISCRETION IN COMPLETELY IGNORING THE SIGNIFICANT FACT THAT THE RESPONDENTS ARE OPERATING THE LANDFILL BASED ON A SPURIOUS ENVIRONMENTAL COMPLIANCE CERTIFICATE.

III

THE COURT OF APPEALS ERRED IN RULING THAT THE RESPONDENTS DID NOT VIOLATE R.A. 7586 WHEN THEY ISSUED AND IMPLEMENTED PROCLAMATION NO. 635 CONSIDERING THAT THE WITHDRAWAL OR DISESTABLISHMENT OF A PROTECTED AREA OR THE MODIFICATION OF THE MARIKINA WATERSHED CAN ONLY BE DONE BY AN ACT OF CONGRESS.

IV

THE COURT OF APPEALS ERRED AND ABUSED ITS DISCRETION WHEN IT DELIBERATELY AND WILLFULLY BRUSHED ASIDE THE UNANIMOUS FINDINGS AND ADVERSE RECOMMENDATIONS OF RESPONSIBLE GOVERNMENT AGENCIES AND NON-PARTISAN OFFICIALS CONCERNED WITH ENVIRONMENTAL PROTECTION IN FAVOR OF THE SELFSERVING, GRATUITOUS ASSERTIONS FOUND IN THE UNSOLICITED, PARTISAN LETTER OF

Province of Rizal vs. Executive Secretary

FORMER MALABON MAYOR, NOW CHAIRMAN PROSPERO ORETA OF THE MMDA WHO IS AN INTERESTED PARTY IN THIS CASE.

THE COURT OF APPEALS ERRED WHEN IT READILY SWALLOWED RESPONDENTS ASSERTION THAT THE SAN MATEO DUMPSITE IS LOCATED IN THE BUFFER ZONE OF THE RESERVATION AND IS THEREFORE OUTSIDE OF ITS BOUNDARIES, AND EVEN DECLARED IN ITS DECISION THAT IT TOOK SERIOUS NOTE OF THIS PARTICULAR ARGUMENT.

VI

THE COURT OF APPEALS ERRED AND ABUSED ITS DISCRETION WHEN IT ENCROACHED ON THE FUNCTION OF CONGRESS BY EXPRESSING ITS UNJUSTIFIED FEAR OF MINI-SMOKEY MOUNTAINS PROLIFERATING IN METRO MANILA AND JUSTIFYING ITS DECISION IN FAVOR OF AN INTEGRATED SYSTEM OF SOLID WASTE MANAGEMENT LIKE THE SAN MATEO LANDFILL.

On 05 January 1998, while the appeal was pending, the petitioners filed a Motion for Temporary Restraining Order,[17] pointing out that the effects of the El Nio phenomenon would be aggravated by the relentless destruction of the Marikina Watershed Reservation. They noted that respondent MMDA had, in the meantime, continued to expand the area of the dumpsite inside the Marikina Watershed Reservation, cutting down thousands of mature fruit trees and forest trees, and leveling hills and mountains to clear the dumping area. Garbage disposal operations were also being conducted on a 24-hour basis, with hundreds of metric tons of wastes

Province of Rizal vs. Executive Secretary

being dumped daily, including toxic and infectious hospital wastes, intensifying the air, ground and water pollution.[18]

The petitioners reiterated their prayer that respondent MMDA be temporarily enjoined from further dumping waste into the site and from encroaching into the area beyond its existing perimeter fence so as not to render the case moot and academic.

On 28 January 1999, the petitioners filed a Motion for Early Resolution,[19] calling attention to the continued expansion of the dumpsite by the MMDA that caused the people of Antipolo to stage a rally and barricade the Marcos Highway to stop the dump trucks from reaching the site for five successive days from 16 January 1999. On the second day of the barricade, all the municipal mayors of the province of Rizal openly declared their full support for the rally, and notified the MMDA that they would oppose any further attempt to dump garbage in their province.[20]

As a result, MMDA officials, headed by then Chairman Jejomar Binay, agreed to abandon the dumpsite after six months. Thus, the municipal mayors of Rizal, particularly the mayors of Antipolo and San Mateo, agreed to the use of the dumpsite until that period, which would end on 20 July 1999.[21]

On 13 July 1999, the petitioners filed an Urgent Second Motion for Early Resolution[22] in anticipation of violence between the conflicting parties as the date of the scheduled closure of the dumpsite neared.

Province of Rizal vs. Executive Secretary

On 19 July 1999, then President Joseph E. Estrada, taking cognizance of the gravity of the problems in the affected areas and the likelihood that violence would erupt among the parties involved, issued a Memorandum ordering the closure of the dumpsite on 31 December 2000.[23] Accordingly, on 20 July 1999, the Presidential Committee on Flagship Programs and Projects and the MMDA entered into a MOA with the Provincial Government of Rizal, the Municipality of San Mateo, and the City of Antipolo, wherein the latter agreed to further extend the use of the dumpsite until its permanent closure on 31 December 2000.[24]

On 11 January 2001, President Estrada directed Department of Interior and Local Government Secretary Alfredo Lim and MMDA Chairman Binay to reopen the San Mateo dumpsite in view of the emergency situation of uncollected garbage in Metro Manila, resulting in a critical and imminent health and sanitation epidemic.[25]

Claiming the above events constituted a clear and present danger of violence erupting in the affected areas, the petitioners filed an Urgent Petition for Restraining Order[26] on 19 January 2001.

On 24 January 2001, this Court issued the Temporary Restraining Order prayed for, effective immediately and until further orders.[27] Meanwhile, on 26 January 2001, Republic Act No. 9003, otherwise known as The Ecological Solid Waste Management Act of 2000, was signed into law by President Estrada.

Thus, the petitioners raised only two issues in their Memorandum[28] of 08 February 2005: 1) whether or not respondent MMDA agreed to the permanent closure of the San Mateo Landfill

Province of Rizal vs. Executive Secretary

as of December 2000, and 2) whether or not the permanent closure of the San Mateo landfill is mandated by Rep. Act No. 9003.

We hold that the San Mateo Landfill will remain permanently closed.

Although the petitioners may be deemed to have waived or abandoned the issues raised in their previous pleadings but not included in the memorandum,[29] certain events we shall relate below have inclined us to address some of the more pertinent issues raised in the petition for the guidance of the herein respondents, and pursuant to our symbolic function to educate the bench and bar.[30]

The law and the facts indicate that a mere MOA does not guarantee the dumpsites permanent closure.

The rally and barricade staged by the people of Antipolo on 28 January 1999, with the full support of all the mayors of Rizal Province caused the MMDA to agree that it would abandon the dumpsite after six months. In return, the municipal mayors allowed the use of the dumpsite until 20 July 1999.

On 20 July 1999, with much fanfare and rhetoric, the Presidential Committee on Flagship Programs and Projects and the MMDA entered into a MOA with the Provincial Government of Rizal, the Municipality of San Mateo, and the City of Antipolo, whereby the latter agreed to an extension for the use of the dumpsite until 31 December 2000, at which time it would be permanently closed.

Province of Rizal vs. Executive Secretary

Despite this agreement, President Estrada directed Department of Interior and Local Government Secretary Alfredo Lim and MMDA Chairman Binay toreopen the San Mateo dumpsite on 11 January 2001, in view of the emergency situation of uncollected garbage in Metro Manila, resulting in a critical and imminent health and sanitation epidemic; our issuance of a TRO on 24 January 2001 prevented the dumpsites reopening.

Were it not for the TRO, then President Estradas instructions would have been lawfully carried out, for as we observed in Oposa v. Factoran, the freedom of contract is not absolute. Thus:

.. In Abe vs. Foster Wheeler Corp., this Court stated: "The freedom of contract, under our system of government, is not meant to be absolute. The same is understood to be subject to reasonable legislative regulation aimed at the promotion of public health, moral, safety and welfare. In other words, the constitutional guaranty of non-impairment of obligations of contract is limited by the exercise of the police power of the State, in the interest of public health, safety, moral and general welfare." The reason for this is emphatically set forth in Nebia vs. New York, quoted in Philippine American Life Insurance Co. vs. Auditor General, to wit: "'Under our form of government the use of property and the making of contracts are normally matters of private and not of public concern. The general rule is that both shall be free of governmental interference. But neither property rights nor contract rights are absolute; for government cannot exist if the citizen may at will use his property to the detriment of his fellows, or exercise his freedom of contract to work them harm. Equally fundamental with the private right is that of the public to regulate it in the common interest.'" In short, the non-impairment clause must yield to the police power of the state. (Citations omitted, emphasis supplied)

We thus feel there is also the added need to reassure the residents of the Province of Rizal that this is indeed a final resolution of this controversy, for a brief review of the records of this

Province of Rizal vs. Executive Secretary

case indicates two self-evident facts. First, the San Mateo site has adversely affected its environs, and second, sources of water should always be protected.

As to the first point, the adverse effects of the site were reported as early as 19 June 1989, when the Investigation Report of the Community Environment and Natural Resources Officer of DENR-IV-1 stated that the sources of domestic water supply of over one thousand families would be adversely affected by the dumping operations.[31] The succeeding report included the observation that the use of the areas as dumping site greatly affected the ecological balance and environmental factors of the community.[32] Respondent LLDA in fact informed the MMA that the heavy pollution and risk of disease generated by dumpsites rendered the location of a dumpsite within the Marikina Watershed Reservation incompatible with its program of upgrading the water quality of the Laguna Lake. [33]

The DENR suspended the sites ECC after investigations revealed ground slumping and erosion had resulted from improper development of the site.[34] Another Investigation Report[35] submitted by the Regional Technical Director to the DENR reported respiratory illnesses among pupils of a primary school located approximately 100 meters from the site, as well as the constant presence of large flies and windblown debris all over the schools playground. It further reiterated reports that the leachate treatment plant had been eroded twice already, contaminating the nearby creeks that were sources of potable water for the residents. The contaminated water was also found to flow to the Wawa Dam and Boso-boso River, which in turn empties into Laguna de Bay.

This brings us to the second self-evident point. Water is life, and must be saved at all costs. In Collado v. Court of Appeals,[36] we had occasion to reaffirm our previous discussion in Sta. Rosa Realty Development Corporation v. Court of Appeals,[37] on the primordial importance

Province of Rizal vs. Executive Secretary

of watershed areas, thus: The most important product of a watershed is water, which is one of the most important human necessities. The protection of watersheds ensures an adequate supply of water for future generations and the control of flashfloods that not only damage property but also cause loss of lives. Protection of watersheds is an intergenerational responsibility that needs to be answered now.[38]

Three short months before Proclamation No. 635 was passed to avert the garbage crisis, Congress had enacted the National Water Crisis Act[39] to adopt urgent and effective measures to address the nationwide water crisis which adversely affects the health and well-being of the population, food production, and industrialization process. One of the issues the law sought to address was the protection and conservation of watersheds.[40]

In other words, while respondents were blandly declaring that the reason for the creation of the Marikina Watershed Reservation, i.e., to protect Marikina River as the source of water supply of the City of Manila, no longer exists, the rest of the country was gripped by a shortage of potable water so serious, it necessitated its own legislation.

Respondents actions in the face of such grave environmental consequences defy all logic. The petitioners rightly noted that instead of providing solutions, they have, with unmitigated callousness, worsened the problem. It is this readiness to wreak irrevocable damage on our natural heritage in pursuit of what is expedient that has compelled us to rule at length on this issue. We ignore the unrelenting depletion of our natural heritage at our peril. I.

Province of Rizal vs. Executive Secretary

THE REORGANIZATION ACT OF THE DENR DEFINES AND LIMITS ITS POWERS OVER THE COUNTRYS NATURAL RESOURCES

The respondents next point out that the Marikina Watershed Reservation, and thus the San Mateo Site, is located in the public domain. They allege that as such, neither the Province of Rizal nor the municipality of San Mateo has the power to control or regulate its use since properties of this nature belong to the national, and not to the local governments.

It is ironic that the respondents should pursue this line of reasoning.

In Cruz v. Secretary of Environment and Natural Resources ,[41] we had occasion to observe that (o)ne of the fixed and dominating objectives of the 1935 Constitutional Convention was the nationalization and conservation of the natural resources of the country. There was an overwhelming sentiment in the convention in favor of the principle of state ownership of natural resources and the adoption of the Regalian doctrine. State ownership of natural resources was seen as a necessary starting point to secure recognition of the states power to control their disposition, exploitation, development, or utilization.[42]

The Regalian doctrine was embodied in the 1935 Constitution, in Section 1 of Article XIII on Conservation and Utilization of Natural Resources. This was reiterated in the 1973 Constitution under Article XIV on the National Economy and the Patrimony of the Nation, and reaffirmed in the 1987 Constitution in Section 2 of Article XII on National Economy and Patrimony, to wit:

Province of Rizal vs. Executive Secretary

Sec. 2. All lands of the public domain, waters, minerals, coal, petroleum, and
other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration, development and utilization of natural resources shall be under the full control and supervision of the State. The State may directly undertake such activities or it may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned by such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and under such terms and conditions as may be provided by law. In cases of water rights for irrigation, water supply, fisheries, or industrial uses other than the development of water power, beneficial use may be the measure and limit of the grant.[43]

Clearly, the state is, and always has been, zealous in preserving as much of our natural and national heritage as it can, enshrining as it did the obligation to preserve and protect the same within the text of our fundamental law.

It was with this objective in mind that the respondent DENR was mandated by then President Corazon C. Aquino, under Section 4 of Executive Order No. 192, [44] otherwise known as The Reorganization Act of the Department of Environment and Natural Resources, to be the primary government agency responsible for the conservation, management, development and proper use of the countrys environment and natural resources, specifically forest and grazing lands, mineral resources, including those in reservation and watershed areas , and lands of the public domain. It is also responsible for the licensing and regulation of all natural resources as

Province of Rizal vs. Executive Secretary

may be provided for by law in order to ensure equitable sharing of the benefits derived therefrom for the welfare of the present and future generations of Filipinos.

We expounded on this matter in the landmark case of Oposa v. Factoran,[45] where we held that the right to a balanced and healthful ecology is a fundamental legal right that carries with it the correlative duty to refrain from impairing the environment. This right implies, among other things, the judicious management and conservation of the countrys resources, which duty is reposed in the DENR under the aforequoted Section 4 of Executive Order No. 192. Moreover:
Section 3 (of E. O. No. 192) makes the following statement of policy:

SEC. 3. Declaration of Policy. - It is hereby declared the policy of the State to ensure the sustainable use, development, management, renewal, and conservation of the country's forest, mineral, land, off-shore areas and other natural resources, including the protection and enhancement of the quality of the environment, and equitable access of the different segments of the population to the development and use of the country's natural resources, not only for the present generation but for future generations as well. It is also the policy of the state to recognize and apply a true value system including social and environmental cost implications relative to their utilization; development and conservation of our natural resources. (Emphasis ours)

This policy declaration is substantially re-stated in Title XIV, Book IV of the Administrative Code of 1987, specifically in Section 1 thereof which reads:

SEC. 1. Declaration of Policy. - (1) The State shall ensure, for the benefit of the Filipino people, the full exploration and development as well as the judicious disposition, utilization, management, renewal and conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural resources, consistent with the necessity of

Province of Rizal vs. Executive Secretary

maintaining a sound ecological balance and protecting and enhancing the quality of the environment and the objective of making the exploration, development and utilization of such natural resources equitably accessible to the different segments of the present as well as future generations.

(2) The State shall likewise recognize and apply a true value system that takes into account social and environmental cost implications relative to the utilization, development and conservation of our natural resources.

The above provision stresses the necessity of maintaining a sound ecological balance and protecting and enhancing the quality of the environment.[46](Emphasis ours.)

In sum, the Administrative Code of 1987 and Executive Order No. 192 entrust the DENR with the guardianship and safekeeping of the Marikina Watershed Reservation and our other natural treasures. However, although the DENR, an agency of the government, owns the Marikina Reserve and has jurisdiction over the same, this power is not absolute, but is defined by the declared policies of the state, and is subject to the law and higher authority. Section 2, Title XIV, Book IV of the Administrative Code of 1987, while specifically referring to the mandate of the DENR, makes particular reference to the agencys being subject to law and higher authority, thus:
SEC. 2. Mandate. - (1) The Department of Environment and Natural Resources shall be primarily responsible for the implementation of the foregoing policy.

(2) It shall, subject to law and higher authority, be in charge of carrying out the State's constitutional mandate to control and supervise the exploration, development, utilization, and conservation of the country's natural resources.

Province of Rizal vs. Executive Secretary

With great power comes great responsibility. It is the height of irony that the public respondents have vigorously arrogated to themselves the power to control the San Mateo site, but have deftly ignored their corresponding responsibility as guardians and protectors of this tormented piece of land.

II.

THE LOCAL GOVERNMENT CODE GIVES TO LOCAL GOVERNMENT UNITS ALL THE NECESSARY POWERS TO PROMOTE THE GENERAL WELFARE OF THEIR INHABITANTS

The circumstances under which Proclamation No. 635 was passed also violates Rep. Act No. 7160, or the Local Government Code.

Contrary to the averment of the respondents, Proclamation No. 635, which was passed on 28 August 1995, is subject to the provisions of the Local Government Code, which was approved four years earlier, on 10 October 1991.

Section 2(c) of the said law declares that it is the policy of the state to
national agencies and offices to conduct periodic consultations with

require all local

appropriate

government units, non-governmental and people's organizations, and other concerned sectors

Province of Rizal vs. Executive Secretary


of the community before any project or program is implemented in their respective

jurisdictions.

Likewise, Section 27 requires prior consultations before a program shall be

implemented by government authorities and the prior approval of the sanggunian is obtained.

During the oral arguments at the hearing for the temporary restraining order, Director Uranza of the MMDA Solid Waste Management Task Force declared before the Court of Appeals that they had conducted the required consultations. However, he added that (t)his is the

problem, sir, the officials we may have been talking with at the time this was established may no longer be incumbent and this is our difficulty now. now, a continuing dialogue.
[47]

That is what we are trying to do

The ambivalent reply of Director Uranza was brought to the fore when, at the height of the protest rally and barricade along Marcos Highway to stop dump trucks from reaching the site, all the municipal mayors of the province of Rizal openly declared their full support for the rally and notified the MMDA that they would oppose any further attempt to dump garbage in their province.
[48]

The municipal mayors acted within the scope of their powers, and were in fact fulfilling their mandate, when they did this. Section 16 allows every local government unit to exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare, which involve, among other things, promot(ing) health and safety, enhance(ing) the

Province of Rizal vs. Executive Secretary

right of the people to a balanced ecology, and preserv(ing) the comfort and convenience of their inhabitants. In Lina , Jr. v. Pao,[49] we held that Section 2 (c), requiring consultations with the appropriate local government units, should apply to national government projects affecting the environmental or ecological balance of the particular community implementing the project. Rejecting the petitioners contention that Sections 2(c) and 27 of the Local Government Code applied mandatorily in the setting up of lotto outlets around the country, we held that:
From a careful reading of said provisions, we find that these apply only to national programs and/or projects which are to be implemented in a particular local community. Lotto is neither a program nor a project of the national government, but of a charitable institution, the PCSO. Though sanctioned by the national government, it is far fetched to say that lotto falls within the contemplation of Sections 2 (c) and 27 of the Local Government Code.

Section 27 of the Code should be read in conjunction with Section 26 thereof. Section 26 reads:

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

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

Province of Rizal vs. Executive Secretary

a particular group of people residing in the locality where these will be implemented . Obviously, none of these effects will be produced by the introduction of lotto in the province of Laguna. (emphasis supplied)

We reiterated this doctrine in the recent case of Bangus Fry Fisherfolk v. Lanzanas,[50] where we held that there was no statutory requirement for thesangguniang bayan of Puerto Galera to approve the construction of a mooring facility, as Sections 26 and 27 are inapplicable to projects which are not environmentally critical. Moreover, Section 447, which enumerates the powers, duties and functions of the municipality, grants the sangguniang bayan the power to, among other things, enact ordinances, approve resolutions and appropriate funds for the general welfare of the municipality and its inhabitants pursuant to Section 16 of th(e) Code.
(1)

These include:
Approving ordinances and passing resolutions to protect the environment and impose appropriate penalties for acts which endanger the environment, such as dynamite fishing and other forms of destructive fishing, illegal logging and smuggling of logs, smuggling of natural resources products and of endangered species of flora and fauna, slash and burn farming, and such other activities which result in pollution, acceleration of eutrophication of rivers and lakes, or of ecological imbalance; [Section 447 (1)(vi)] Prescribing reasonable limits and restraints on the use of property within the jurisdiction of the municipality, adopting a comprehensive land use plan for the municipality, reclassifying land within the jurisdiction of the city, subject to the pertinent provisions of this Code, enacting integrated zoning ordinances in consonance with the approved comprehensive land use plan, subject to existing laws, rules and regulations; establishing fire limits or zones, particularly in populous centers; and regulating the construction, repair or modification of buildings within

(2)

Province of Rizal vs. Executive Secretary

said fire limits or zones in accordance with provisions of this Code; [Section 447 (2)(vi-ix)] (3)

the

Approving ordinances which shall ensure the efficient and effective delivery of the basic services and facilities as provided for under Section 17 of this Code, and in addition to said services and facilities, providing for the establishment, maintenance, protection, and conservation of communal forests and watersheds, tree parks, greenbelts, mangroves, and other similar forest development projects .and, subject to existing laws, establishing and providing for the maintenance, repair and operation of an efficient waterworks system to supply water for the inhabitants and purifying the source of the water supply; regulating the construction, maintenance, repair and use of hydrants, pumps, cisterns and reservoirs; protecting the purity and quantity of the water supply of the municipality and, for this purpose, extending the coverage of appropriate ordinances over all territory within the drainage area of said water supply and within one hundred (100) meters of the reservoir, conduit, canal, aqueduct, pumping station, or watershed used in connection with the water service; and regulating the consumption, use or wastage of water. [Section 447 (5)(i) & (vii)]

Under the Local Government Code, therefore, two requisites must be met before a national project that affects the environmental and ecological balance of local communities can be implemented: prior consultation with the affected local communities, and prior approval of the project by the appropriatesanggunian. Absent either of these mandatory requirements, the projects implementation is illegal. III. WASTE DISPOSAL IS REGULATED BY THE ECOLOGICAL SOLID WASTE MANAGEMENT ACT OF 2000

Province of Rizal vs. Executive Secretary

The respondents would have us overlook all the abovecited laws because the San Mateo site is a very expensive - and necessary - fait accompli. The respondents cite the millions of pesos and hundreds of thousands of dollars the government has already expended in its development and construction, and the lack of any viable alternative sites.

The Court of Appeals agreed, thus:


During the hearing on the injunction, questions were also asked. What will happen if the San Mateo Sanitary Landfill is closed? Where will the daily collections of garbage be disposed of and dumped? Atty. Mendoza, one of the lawyers of the petitioners, answered that each city/municipality must take care of its own. Reflecting on that answer, we are troubled: will not the proliferation of separate open dumpsites be a more serious health hazard (which ha(s) to be addressed) to the residents of the community? What with the galloping population growth and the constricting available land area in Metro Manila? There could be a mini-Smokey Mountain in each of the ten citiescomprising Metro Manila, placing in danger the health and safety of more people. Damage to the environment could be aggravated by the increase in number of open dumpsites. An integrated system of solid waste management, like the San Mateo Sanitary Landfill, appears advisable to a populous metropolis like the Greater Metro Manila Area absent access to better technology.[51]

We acknowledge that these are valid concerns. Nevertheless, the lower court should have been mindful of the legal truism that it is the legislature, by its very nature, which is the primary judge of the necessity, adequacy, wisdom, reasonableness and expediency of any law.[52]

Moreover, these concerns are addressed by Rep. Act No. 9003. Approved on 26 January 2001, The Ecological Solid Waste Management Act of 2000 was enacted pursuant to the declared policy of the state to adopt a systematic, comprehensive and ecological solid waste management system which shall ensure the protection of public health and environment, and

Province of Rizal vs. Executive Secretary

utilize environmentally sound methods that maximize the utilization of valuable resources and encourage resource conservation and recovery.[53] It requires the adherence to a Local Government Solid Waste Management Plan with regard to the collection and transfer, processing, source reduction, recycling, composting and final disposal of solid wastes, the handling and disposal of special wastes, education and public information, and the funding of solid waste management projects.

The said law mandates the formulation of a National Solid Waste Management Framework, which should include, among other things, the method and procedure for the phaseout and the eventual closure within eighteen months from effectivity of the Act in case of existing open dumps and/or sanitary landfills located within an aquifer, groundwater reservoir or watershed area.[54] Any landfills subsequently developed must comply with the minimum requirements laid down in Section 40, specifically that the site selected must be consistent with the overall land use plan of the local government unit, and that the site must be located in an area where the landfills operation will not detrimentally affect environmentally sensitive resources such as aquifers, groundwater reservoirs or watershed areas.[55]

This writes finis to any remaining aspirations respondents may have of reopening the San Mateo Site. Having declared Proclamation No. 635 illegal, we see no compelling need to tackle the remaining issues raised in the petition and the parti es respective memoranda.

A final word. Laws pertaining to the protection of the environment were not drafted in a vacuum. Congress passed these laws fully aware of the perilous state of both our economic and natural wealth. It was precisely to minimize the adverse impact humanitys actions on all aspects of the natural world, at the same time maintaining and ensuring an environment under which

Province of Rizal vs. Executive Secretary

man and nature can thrive in productive and enjoyable harmony with each other, that these legal safeguards were put in place. They should thus not be so lightly cast aside in the face of what is easy and expedient.

WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals in CA-G.R. SP No. 41330, dated 13 June 1997, is REVERSED and SET ASIDE. The temporary restraining order issued by the Court on 24 January 2001 is hereby made permanent.

SO ORDERED.

LCP vs. COMELEC

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 176951 November 18, 2008

LEAGUE OF CITIES OF THE PHILIPPINES (LCP) represented by LCP National President JERRY P. TREAS, CITY OF ILOILO represented by MAYOR JERRY P. TREAS, CITY OF CALBAYOG represented by MAYOR MEL SENEN S. SARMIENTO, and JERRY P. TREAS in his personal capacity as taxpayer, petitioners, vs. COMMISSION ON ELECTIONS; MUNICIPALITY OF BAYBAY, PROVINCE OF LEYTE; MUNICIPALITY OF BOGO, PROVINCE OF CEBU; MUNICIPALITY OF CATBALOGAN, PROVINCE OF WESTERN SAMAR; MUNICIPALITY OF TANDAG, PROVINCE OF SURIGAO DEL SUR; MUNICIPALITY OF BORONGAN, PROVINCE OF EASTERN SAMAR; and MUNICIPALITY OF TAYABAS, PROVINCE OF QUEZON, respondents. CITY OF TARLAC, CITY OF SANTIAGO, CITY OF IRIGA, CITY OF LIGAO, CITY OF LEGAZPI, CITY OF TAGAYTAY, CITY OF SURIGAO, CITY OF BAYAWAN, CITY OF SILAY, CITY OF GENERAL SANTOS, CITY OF ZAMBOANGA, CITY OF GINGOOG, CITY OF CAUAYAN, CITY OF PAGADIAN, CITY OF SAN CARLOS, CITY OF SAN FERNANDO, CITY OF TACURONG, CITY OF TANGUB, CITY OF OROQUIETA, CITY OF URDANETA, CITY OF VICTORIAS, CITY OF CALAPAN, CITY OF HIMAMAYLAN, CITY OF BATANGAS, CITY OF BAIS, CITY OF CADIZ, and CITY OF TAGUM,petitioners-inintervention. x-----------------------------x G.R. No. 177499 November 18, 2008

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

LCP vs. COMELEC

FERNANDO, CITY OF TACURONG, CITY OF TANGUB, CITY OF OROQUIETA, CITY OF URDANETA, CITY OF VICTORIAS, CITY OF CALAPAN, CITY OF HIMAMAYLAN, CITY OF BATANGAS, CITY OF BAIS, CITY OF CADIZ, and CITY OF TAGUM,petitioners-inintervention. x - - - - - - - - - - - - - - - - - - - - - - - - - - --x G.R. No. 178056 November 18, 2008

LEAGUE OF CITIES OF THE PHILIPPINES (LCP) represented by LCP National President JERRY P. TREAS, CITY OF ILOILO represented by MAYOR JERRY P. TREAS, CITY OF CALBAYOG represented by MAYOR MEL SENEN S. SARMIENTO, and JERRY P. TREAS in his personal capacity as taxpayer, petitioners vs. COMMISSION ON ELECTIONS; MUNICIPALITY OF CABADBARAN, PROVINCE OF AGUSAN DEL NORTE; MUNICIPALITY OF CARCAR, PROVINCE OF CEBU; and MUNICIPALITY OF EL SALVADOR, MISAMIS ORIENTAL, respondents. CITY OF TARLAC, CITY OF SANTIAGO, CITY OF IRIGA, CITY OF LIGAO, CITY OF LEGAZPI, CITY OF TAGAYTAY, CITY OF SURIGAO, CITY OF BAYAWAN, CITY OF SILAY, CITY OF GENERAL SANTOS, CITY OF ZAMBOANGA, CITY OF GINGOOG, CITY OF CAUAYAN, CITY OF PAGADIAN, CITY OF SAN CARLOS, CITY OF SAN FERNANDO, CITY OF TACURONG, CITY OF TANGUB, CITY OF OROQUIETA, CITY OF URDANETA, CITY OF VICTORIAS, CITY OF CALAPAN, CITY OF HIMAMAYLAN, CITY OF BATANGAS, CITY OF BAIS, CITY OF CADIZ, and CITY OF TAGUM,petitioners-inintervention. DECISION CARPIO, J.: The Case These are consolidated petitions for prohibition1 with prayer for the issuance of a writ of preliminary injunction or temporary restraining order filed by the League of Cities of the Philippines, City of Iloilo, City of Calbayog, and Jerry P. Treas2 assailing the constitutionality of the subject Cityhood Laws and enjoining the Commission on Elections (COMELEC) and respondent municipalities from conducting plebiscites pursuant to the Cityhood Laws. The Facts During the 11th Congress,3 Congress enacted into law 33 bills converting 33 municipalities into cities. However, Congress did not act on bills converting 24 other municipalities into cities. During the 12th Congress,4 Congress enacted into law Republic Act No. 9009 (RA 9009),5 which took effect on 30 June 2001. RA 9009 amended Section 450 of the Local

LCP vs. COMELEC

Government Code by increasing the annual income requirement for conversion of a municipality into a city from P20 million to P100 million. The rationale for the amendment was to restrain, in the words of Senator Aquilino Pimentel, "the mad rush" of municipalities to convert into cities solely to secure a larger share in the Internal Revenue Allotment despite the fact that they are incapable of fiscal independence.6 After the effectivity of RA 9009, the House of Representatives of the 12th Congress7 adopted Joint Resolution No. 29,8 which sought to exempt from the P100 million income requirement in RA 9009 the 24 municipalities whose cityhood bills were not approved in the 11th Congress. However, the 12th Congress ended without the Senate approving Joint Resolution No. 29. During the 13th Congress,9 the House of Representatives re-adopted Joint Resolution No. 29 as Joint Resolution No. 1 and forwarded it to the Senate for approval. However, the Senate again failed to approve the Joint Resolution. Following the advice of Senator Aquilino Pimentel, 16 municipalities filed, through their respective sponsors, individual cityhood bills. The 16 cityhood bills contained a common provision exempting all the 16 municipalities from the P100 million income requirement in RA 9009. On 22 December 2006, the House of Representatives approved the cityhood bills. The Senate also approved the cityhood bills in February 2007, except that of Naga, Cebu which was passed on 7 June 2007. The cityhood bills lapsed into law (Cityhood Laws10) on various dates from March to July 2007 without the President's signature.11 The Cityhood Laws direct the COMELEC to hold plebiscites to determine whether the voters in each respondent municipality approve of the conversion of their municipality into a city. Petitioners filed the present petitions to declare the Cityhood Laws unconstitutional for violation of Section 10, Article X of the Constitution, as well as for violation of the equal protection clause.12Petitioners also lament that the wholesale conversion of municipalities into cities will reduce the share of existing cities in the Internal Revenue Allotment because more cities will share the same amount of internal revenue set aside for all cities under Section 285 of the Local Government Code.13 The Issues The petitions raise the following fundamental issues: 1. Whether the Cityhood Laws violate Section 10, Article X of the Constitution; and 2. Whether the Cityhood Laws violate the equal protection clause. The Ruling of the Court We grant the petitions.

LCP vs. COMELEC

The Cityhood Laws violate Sections 6 and 10, Article X of the Constitution, and are thus unconstitutional. First, applying the P100 million income requirement in RA 9009 to the present case is a prospective, not a retroactive application, because RA 9009 took effect in 2001 while the cityhood bills became law more than five years later. Second, the Constitution requires that Congress shall prescribe all the criteria for the creation of a city in the Local Government Code and not in any other law, including the Cityhood Laws. Third, the Cityhood Laws violate Section 6, Article X of the Constitution because they prevent a fair and just distribution of the national taxes to local government units. Fourth, the criteria prescribed in Section 450 of the Local Government Code, as amended by RA 9009, for converting a municipality into a city are clear, plain and unambiguous, needing no resort to any statutory construction. Fifth, the intent of members of the 11th Congress to exempt certain municipalities from the coverage of RA 9009 remained an intent and was never written into Section 450 of the Local Government Code. Sixth, the deliberations of the 11th or 12th Congress on unapproved bills or resolutions are not extrinsic aids in interpreting a law passed in the 13th Congress. Seventh, even if the exemption in the Cityhood Laws were written in Section 450 of the Local Government Code, the exemption would still be unconstitutional for violation of the equal protection clause. Preliminary Matters Prohibition is the proper action for testing the constitutionality of laws administered by the COMELEC,14like the Cityhood Laws, which direct the COMELEC to hold plebiscites in implementation of the Cityhood Laws. Petitioner League of Cities of the Philippines has legal standing because Section 499 of the Local Government Code tasks the League with the "primary purpose of ventilating, articulating and crystallizing issues affecting city government administration and securing, through proper and legal means, solutions thereto."15 Petitioners-in-intervention,16 which are existing cities, have legal standing because their Internal Revenue Allotment will be reduced if the Cityhood Laws are declared constitutional. Mayor Jerry P. Treas has legal standing because as Mayor of Iloilo City and as a taxpayer he has sufficient interest to prevent the unlawful expenditure of public funds, like the release of more Internal Revenue Allotment to political units than what the law allows. Applying RA 9009 is a Prospective Application of the Law

LCP vs. COMELEC

RA 9009 became effective on 30 June 2001 during the 11th Congress. This law specifically amended Section 450 of the Local Government Code, which now provides: Section 450. Requisites for Creation. (a) A municipality or a cluster of barangays may be converted into a component city if it has a locally generated average annual income, as certified by the Department of Finance, of at least One hundred million pesos (P100,000,000.00) for the last two (2) consecutive years based on 2000 constant prices, and if it has either of the following requisites: (i) a contiguous territory of at least one hundred (100) square kilometers, as certified by the Land Management Bureau; or (ii) a population of not less than one hundred fifty thousand (150,000) inhabitants, as certified by the National Statistics Office. The creation thereof shall not reduce the land area, population and income of the original unit or units at the time of said creation to less than the minimum requirements prescribed herein. (b) The territorial jurisdiction of a newly-created city shall be properly identified by metes and bounds. The requirement on land area shall not apply where the city proposed to be created is composed of one (1) or more islands. The territory need not be contiguous if it comprises two (2) or more islands. (c) The average annual income shall include the income accruing to the general fund, exclusive of special funds, transfers, and non-recurring income. (Emphasis supplied) Thus, RA 9009 increased the income requirement for conversion of a municipality into a city from P20 million to P100 million. Section 450 of the Local Government Code, as amended by RA 9009, does not provide any exemption from the increased income requirement. Prior to the enactment of RA 9009, a total of 57 municipalities had cityhood bills pending in Congress. Thirty-three cityhood bills became law before the enactment of RA 9009. Congress did not act on 24 cityhood bills during the 11th Congress. During the 12th Congress, the House of Representatives adopted Joint Resolution No. 29, exempting from the income requirement of P100 million in RA 9009 the 24 municipalities whose cityhood bills were not acted upon during the 11th Congress. This Resolution reached the Senate. However, the 12thCongress adjourned without the Senate approving Joint Resolution No. 29. During the 13th Congress, 16 of the 24 municipalities mentioned in the unapproved Joint Resolution No. 29 filed between November and December of 2006, through their respective sponsors in Congress, individual cityhood bills containing a common provision, as follows:

LCP vs. COMELEC

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

LCP vs. COMELEC

In enacting RA 9009, Congress did not grant any exemption to respondent municipalities, even though their cityhood bills were pending in Congress when Congress passed RA 9009. The Cityhood Laws, all enacted after the effectivity of RA 9009, explicitly exempt respondent municipalities from the increased income requirement in Section 450 of the Local Government Code, as amended by RA 9009. Such exemption clearly violates Section 10, Article X of the Constitution and is thus patently unconstitutional. To be valid, such exemption must be written in the Local Government Code and not in any other law, including the Cityhood Laws. Cityhood Laws Violate Section 6, Article X of the Constitution Uniform and non-discriminatory criteria as prescribed in the Local Government Code are essential to implement a fair and equitable distribution of national taxes to all local government units. Section 6, Article X of the Constitution provides: Local government units shall have a just share, as determined by law, in the national taxes which shall be automatically released to them. (Emphasis supplied) If the criteria in creating local government units are not uniform and discriminatory, there can be no fair and just distribution of the national taxes to local government units. A city with an annual income of only P20 million, all other criteria being equal, should not receive the same share in national taxes as a city with an annual income of P100 million or more. The criteria of land area, population and income, as prescribed in Section 450 of the Local Government Code, must be strictly followed because such criteria, prescribed by law, are material in determining the "just share" of local government units in national taxes. Since the Cityhood Laws do not follow the income criterion in Section 450 of the Local Government Code, they prevent the fair and just distribution of the Internal Revenue Allotment in violation of Section 6, Article X of the Constitution. Section 450 of the Local Government Code is Clear, Plain and Unambiguous There can be no resort to extrinsic aids like deliberations of Congress if the language of the law is plain, clear and unambiguous. Courts determine the intent of the law from the literal language of the law, within the law's four corners.19 If the language of the law is plain, clear and unambiguous, courts simply apply the law according to its express terms. If a literal application of the law results in absurdity, impossibility or injustice, then courts may resort to extrinsic aids of statutory construction like the legislative history of the law.20 Congress, in enacting RA 9009 to amend Section 450 of the Local Government Code, did not provide any exemption from the increased income requirement, not even to respondent municipalities whose cityhood bills were then pending when Congress passed RA 9009. Section 450 of the Local Government Code, as amended by RA 9009, contains no exemption whatsoever. Since the law is clear, plain and unambiguous that any municipality

LCP vs. COMELEC

desiring to convert into a city must meet the increased income requirement, there is no reason to go beyond the letter of the law in applying Section 450 of the Local Government Code, as amended by RA 9009. The 11th Congress' Intent was not Written into the Local Government Code True, members of Congress discussed exempting respondent municipalities from RA 9009, as shown by the various deliberations on the matter during the 11th Congress. However, Congress did not write this intended exemption into law. Congress could have easily included such exemption in RA 9009 but Congress did not. This is fatal to the cause of respondent municipalities because such exemption must appear in RA 9009 as an amendment to Section 450 of the Local Government Code. The Constitution requires that the criteria for the conversion of a municipality into a city, including any exemption from such criteria, must all be written in the Local Government Code. Congress cannot prescribe such criteria or exemption from such criteria in any other law. In short, Congress cannot create a city through a law that does not comply with the criteria or exemption found in the Local Government Code. Section 10 of Article X is similar to Section 16, Article XII of the Constitution prohibiting Congress from creating private corporations except by a general law. Section 16 of Article XII provides: The Congress shall not, except by general law, provide for the formation, organization, or regulation of private corporations. Government-owned or controlled corporations may be created or established by special charters in the interest of the common good and subject to the test of economic viability. (Emphasis supplied) Thus, Congress must prescribe all the criteria for the "formation, organization, or regulation" of private corporations in a general law applicable to all without discrimination.21 Congress cannot create a private corporation through a special law or charter. Deliberations of the 11th Congress on Unapproved Bills Inapplicable Congress is not a continuing body.22 The unapproved cityhood bills filed during the 11th Congress became mere scraps of paper upon the adjournment of the 11th Congress. All the hearings and deliberations conducted during the 11th Congress on unapproved bills also became worthless upon the adjournment of the 11th Congress. These hearings and deliberations cannot be used to interpret bills enacted into law in the 13th or subsequent Congresses. The members and officers of each Congress are different. All unapproved bills filed in one Congress become functus officio upon adjournment of that Congress and must be re-filed anew in order to be taken up in the next Congress. When their respective authors re-filed the

LCP vs. COMELEC

cityhood bills in 2006 during the 13th Congress, the bills had to start from square one again, going through the legislative mill just like bills taken up for the first time, from the filing to the approval. Section 123, Rule XLIV of the Rules of the Senate, on Unfinished Business, provides: Sec. 123. x x x All pending matters and proceedings shall terminate upon the expiration of one (1) Congress, but may be taken by the succeeding Congress as if presented for the first time. (Emphasis supplied) Similarly, Section 78 of the Rules of the House of Representatives, on Unfinished Business, states: Section 78. Calendar of Business. The Calendar of Business shall consist of the following: a. Unfinished Business. This is business being considered by the House at the time of its last adjournment. Its consideration shall be resumed until it is disposed of. The Unfinished Business at the end of a session shall be resumed at the commencement of the next session as if no adjournment has taken place. At the end of the term of a Congress, all Unfinished Business are deemed terminated. (Emphasis supplied) Thus, the deliberations during the 11th Congress on the unapproved cityhood bills, as well as the deliberations during the 12th and 13th Congresses on the unapproved resolution exempting from RA 9009 certain municipalities, have no legal significance. They do not qualify as extrinsic aids in construing laws passed by subsequent Congresses. Applicability of Equal Protection Clause If Section 450 of the Local Government Code, as amended by RA 9009, contained an exemption to theP100 million annual income requirement, the criteria for such exemption could be scrutinized for possible violation of the equal protection clause. Thus, the criteria for the exemption, if found in the Local Government Code, could be assailed on the ground of absence of a valid classification. However, Section 450 of the Local Government Code, as amended by RA 9009, does not contain any exemption. The exemption is contained in the Cityhood Laws, which are unconstitutional because such exemption must be prescribed in the Local Government Code as mandated in Section 10, Article X of the Constitution. Even if the exemption provision in the Cityhood Laws were written in Section 450 of the Local Government Code, as amended by RA 9009, such exemption would still be unconstitutional for violation of the equal protection clause. The exemption provision merely states, "Exemption from Republic Act No. 9009 The City of x x x shall be exempted from the income requirement prescribed under Republic Act No. 9009." This one

LCP vs. COMELEC

sentence exemption provision contains no classification standards or guidelines differentiating the exempted municipalities from those that are not exempted. Even if we take into account the deliberations in the 11th Congress that municipalities with pending cityhood bills should be exempt from the P100 million income requirement, there is still no valid classification to satisfy the equal protection clause. The exemption will be based solely on the fact that the 16 municipalities had cityhood bills pending in the 11th Congress when RA 9009 was enacted. This is not a valid classification between those entitled and those not entitled to exemption from the P100 million income requirement. To be valid, the classification in the present case must be based on substantial distinctions, rationally related to a legitimate government objective which is the purpose of the law,23 not limited to existing conditions only, and applicable to all similarly situated. Thus, this Court has ruled: The equal protection clause of the 1987 Constitution permits a valid classification under the following conditions: 1. The classification must rest on substantial distinctions; 2. The classification must be germane to the purpose of the law; 3. The classification must not be limited to existing conditions only; and 4. The classification must apply equally to all members of the same class.24 There is no substantial distinction between municipalities with pending cityhood bills in the 11thCongress and municipalities that did not have pending bills. The mere pendency of a cityhood bill in the 11th Congress is not a material difference to distinguish one municipality from another for the purpose of the income requirement. The pendency of a cityhood bill in the 11th Congress does not affect or determine the level of income of a municipality. Municipalities with pending cityhood bills in the 11thCongress might even have lower annual income than municipalities that did not have pending cityhood bills. In short, the classification criterion mere pendency of a cityhood bill in the 11th Congress is not rationally related to the purpose of the law which is to prevent fiscally non-viable municipalities from converting into cities. Municipalities that did not have pending cityhood bills were not informed that a pending cityhood bill in the 11th Congress would be a condition for exemption from the increased P100 million income requirement. Had they been informed, many municipalities would have caused the filing of their own cityhood bills. These municipalities, even if they have bigger annual income than the 16 respondent municipalities, cannot now convert into cities if their income is less than P100 million. The fact of pendency of a cityhood bill in the 11th Congress limits the exemption to a specific condition existing at the time of passage of RA 9009. That specific condition will never

LCP vs. COMELEC

happen again. This violates the requirement that a valid classification must not be limited to existing conditions only. This requirement is illustrated in Mayflower Farms, Inc. v. Ten Eyck,25 where the challenged law allowed milk dealers engaged in business prior to a fixed date to sell at a price lower than that allowed to newcomers in the same business. In Mayflower, the U.S. Supreme Court held: We are referred to a host of decisions to the effect that a regulatory law may be prospective in operation and may except from its sweep those presently engaged in the calling or activity to which it is directed. Examples are statutes licensing physicians and dentists, which apply only to those entering the profession subsequent to the passage of the act and exempt those then in practice, or zoning laws which exempt existing buildings, or laws forbidding slaughterhouses within certain areas, but excepting existing establishments. The challenged provision is unlike such laws, since, on its face, it is not a regulation of a business or an activity in the interest of, or for the protection of, the public, but an attempt to give an economic advantage to those engaged in a given business at an arbitrary date as against all those who enter the industry after that date. The appellees do not intimate that the classification bears any relation to the public health or welfare generally; that the provision will discourage monopoly; or that it was aimed at any abuse, cognizable by law, in the milk business. In the absence of any such showing, we have no right to conjure up possible situations which might justify the discrimination. The classification is arbitrary and unreasonable and denies the appellant the equal protection of the law. (Emphasis supplied) In the same vein, the exemption provision in the Cityhood Laws gives the 16 municipalities a unique advantage based on an arbitrary date the filing of their cityhood bills before the end of the 11thCongress - as against all other municipalities that want to convert into cities after the effectivity of RA 9009. Furthermore, limiting the exemption only to the 16 municipalities violates the requirement that the classification must apply to all similarly situated. Municipalities with the same income as the 16 respondent municipalities cannot convert into cities, while the 16 respondent municipalities can. Clearly, as worded the exemption provision found in the Cityhood Laws, even if it were written in Section 450 of the Local Government Code, would still be unconstitutional for violation of the equal protection clause. WHEREFORE, we GRANT the petitions and declare UNCONSTITUTIONAL the Cityhood Laws, namely: Republic Act Nos. 9389, 9390, 9391, 9392, 9393, 9394, 9398, 9404, 9405, 9407, 9408, 9409, 9434, 9435, 9436, and 9491. SO ORDERED.

LCP vs. COMELEC


Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 176951 December 21, 2009

LEAGUE OF CITIES OF THE PHILIPPINES (LCP) represented by LCP National President JERRY P. TREAS, CITY OF ILOILO represented by MAYOR JERRY P. TREAS, CITY OF CALBAYOG represented by MAYOR MEL SENEN S. SARMIENTO, and JERRY P. TREAS in his personal capacity as taxpayer Petitioners, vs. COMMISSION ON ELECTIONS; MUNICIPALITY OF BAYBAY, PROVINCE OF LEYTE; MUNICIPALITY OF BOGO, PROVINCE OF CEBU; MUNICIPALITY OF CATBALOGAN, PROVINCE OF WESTERN SAMAR; MUNICIPALITY OF TANDAG, PROVINCE OF SURIGAO DEL SUR; MUNICIPALITY OF BORONGAN, PROVINCE OF EASTERN SAMAR; and MUNICIPALITY OF TAYABAS, PROVINCE OF QUEZON, Respondents. CITY OF TARLAC, CITY OF SANTIAGO, CITY OF IRIGA, CITY OF LIGAO, CITY OF LEGAZPI, CITY OF TAGAYTAY, CITY OF SURIGAO, CITY OF BAYAWAN, CITY OF SILAY, CITY OF GENERAL SANTOS, CITY OF ZAMBOANGA, CITY OF GINGOOG, CITY OF CAUAYAN, CITY OF PAGADIAN, CITY OF SAN CARLOS, CITY OF SAN FERNANDO, CITY OF TACURONG, CITY OF TANGUB, CITY OF OROQUIETA, CITY OF URDANETA, CITY OF VICTORIAS, CITY OF CALAPAN, CITY OF HIMAMAYLAN, CITY OF BATANGAS, CITY OF BAIS, CITY OF CADIZ, and CITY OF TAGUM, Petitioners-In-Intervention. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 177499 December 21, 2009

LEAGUE OF CITIES OF THE PHILIPPINES (LCP) represented by LCP National President JERRY P. TREAS, CITY OF ILOILO represented by MAYOR JERRY P. TREAS, CITY OF CALBAYOG represented by MAYOR MEL SENEN S. SARMIENTO, and JERRY P. TREAS in his personal capacity as taxpayer, Petitioners, vs. COMMISSION ON ELECTIONS; MUNICIPALITY OF LAMITAN, PROVINCE OF BASILAN; MUNICIPALITY OF TABUK, PROVINCE OF KALINGA; MUNICIPALITY OF BAYUGAN, PROVINCE OF AGUSAN DEL SUR; MUNICIPALITY OF BATAC, PROVINCE OF ILOCOS NORTE; MUNICIPALITY OF MATI, PROVINCE OF DAVAO ORIENTAL; and MUNICIPALITY OF GUIHULNGAN, PROVINCE OF NEGROS ORIENTAL, Respondents. CITY OF TARLAC, CITY OF SANTIAGO, CITY OF IRIGA, CITY OF LIGAO, CITY OF LEGAZPI, CITY OF TAGAYTAY, CITY OF SURIGAO, CITY OF BAYAWAN, CITY OF SILAY, CITY OF GENERAL SANTOS, CITY OF ZAMBOANGA, CITY OF GINGOOG, CITY OF CAUAYAN, CITY OF PAGADIAN, CITY OF SAN CARLOS, CITY OF SAN FERNANDO, CITY OF TACURONG, CITY OF TANGUB, CITY OF OROQUIETA, CITY OF URDANETA, CITY OF VICTORIAS, CITY OF CALAPAN, CITY OF HIMAMAYLAN, CITY OF BATANGAS, CITY OF BAIS, CITY OF CADIZ, and CITY OF TAGUM, Petitioners-In-Intervention. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 178056 December 21, 2009

LEAGUE OF CITIES OF THE PHILIPPINES (LCP) represented by LCP National President JERRY P. TREAS, CITY OF ILOILO represented by MAYOR JERRY P. TREAS, CITY OF CALBAYOG represented by MAYOR MEL SENEN S. SARMIENTO, and JERRY P. TREAS in his personal capacity as taxpayer, Petitioners, vs. PROVINCE OF AGUSAN DEL NORTE; MUNICIPALITY OF CARCAR, PROVINCE OF CEBU; and MUNICIPALITY OF EL SALVADOR, MISAMIS ORIENTAL, COMMISSION ON ELECTIONS; MUNICIPALITY OF CABADBARAN,Respondents. CITY OF TARLAC, CITY OF SANTIAGO, CITY OF IRIGA, CITY OF LIGAO, CITY OF LEGAZPI, CITY OF TAGAYTAY, CITY OF SURIGAO, CITY OF BAYAWAN, CITY OF SILAY, CITY OF GENERAL SANTOS, CITY OF ZAMBOANGA, CITY OF GINGOOG, CITY OF CAUAYAN, CITY OF PAGADIAN, CITY OF SAN CARLOS, CITY OF

LCP vs. COMELEC SAN FERNANDO, CITY OF TACURONG, CITY OF TANGUB, CITY OF OROQUIETA, CITY OF URDANETA, CITY OF VICTORIAS, CITY OF CALAPAN, CITY OF HIMAMAYLAN, CITY OF BATANGAS, CITY OF BAIS, CITY OF CADIZ, and CITY OF TAGUM, Petitioners-In-Intervention.
DECISION VELASCO, JR. J.: Ratio legis est anima. The spirit rather than the letter of the law. A statute must be read according to its spirit or intent,1 for what is within the spirit is within the statute although it is not within its letter, and that which is within the letter but not within the spirit is not within the statute.2 Put a bit differently, that which is within the intent of the lawmaker is as much within the statute as if within the letter; and that which is within the letter of the statute is not within the statute unless within the intent of the lawmakers.3 Withal, courts ought not to interpret and should not accept an interpretation that would defeat the intent of the law and its legislators.4 So as it is exhorted to pass on a challenge against the validity of an act of Congress, a co-equal branch of government, it behooves the Court to have at once one principle in mind: the presumption of constitutionality of statutes.5 This presumption finds its roots in the tri-partite system of government and the corollary separation of powers, which enjoins the three great departments of the government to accord a becoming courtesy for each others acts, and not to interfere inordinately with the exercise by one of its official functions. Towards this end, courts ought to reject assaults against the validity of statutes, barring of course their clear unconstitutionality. To doubt is to sustain, the theory in context being that the law is the product of earnest studies by Congress to ensure that no constitutional prescription or concept is infringed.6 Consequently, before a law duly challenged is nullified, an unequivocal breach of, or a clear conflict with, the Constitution, not merely a doubtful or argumentative one, must be demonstrated in such a manner as to leave no doubt in the mind of the Court.7 BACKGROUND The consolidated petitions for prohibition commenced by the League of Cities of the Philippines (LCP), City of Iloilo, City of Calbayog, and Jerry P. Treas8 assail the constitutionality of the sixteen (16) laws,9 each converting the municipality covered thereby into a city (cityhood laws, hereinafter) and seek to enjoin the Commission on Elections (COMELEC) from conducting plebiscites pursuant to subject laws. By Decision10 dated November 18, 2008, the Court en banc, by a 6-5 vote, granted the petitions and nullified the sixteen (16) cityhood laws for being violative of the Constitution, specifically its Section 10, Article X and the equal protection clause. Subsequently, respondent local government units (LGUs) moved for reconsideration, raising, as one of the issues, the validity of the factual premises not contained in the pleadings of the parties, let alone established, which became the bases of the Decision subject of reconsideration.11 By Resolution of March 31, 2009, a divided Court denied the motion for reconsideration. A second motion for reconsideration followed in which respondent LGUs prayed as follows: WHEREFORE, respondents respectfully pray that the Honorable Court reconsider its "Resolution" dated March 31, 2009, in so far as it denies for "lack of merit" respondents "Motion for Reconsideration" dated December 9, 2008 and in lieu thereof, considering that new and meritorious arguments are raised by respondents "Motion for Reconsideration" dated December 9, 2008 to grant afore-mentioned "Motion for Reconsideration" dated December 9, 2008 and dismiss the "Petitions For Prohibition" in the instant case. Per Resolution dated April 28, 2009, the Court, voting 6-6, disposed of the motion as follows: By a vote of 6-6, the Motion for Reconsideration of the Resolution of 31 March 2009 is DENIED for lack of merit. The motion is denied since there is no majority that voted to overturn the Resolution of 31 March 2009.

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

LCP vs. COMELEC All cases involving the constitutionality of a treaty, international or executive agreement, or law shall be heard by the Supreme Court en banc, x x x shall be decided with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon. (Emphasis added.)
Webster defines "majority" as "a number greater than half of a total."13 In plain language, this means 50% plus one. In Lambino v. Commission on Elections, Justice, now Chief Justice, Puno, in a separate opinion, expressed the view that "a deadlocked vote of six (6) is not a majority and a non-majority cannot write a rule with precedential value."14 As may be noted, the aforequoted Sec. 4 of Art. VIII, as couched, exacts a majority vote in the determination of a case involving the constitutionality of a statute, without distinguishing whether such determination is made on the main petition or thereafter on a motion for reconsideration. This is as it should be, for, to borrow from the late Justice Ricardo J. Francisco: "x x x [E]ven assuming x x x that the constitutional requirement on the concurrence of the majority was initially reached in the x x x ponencia, the same is inconclusive as it was still open for review by way of a motion for reconsideration."15 To be sure, the Court has taken stock of the rule on a tie-vote situation, i.e., Sec. 7, Rule 56 and the complementary A.M. No. 99-1-09- SC, respectively, providing that: SEC. 7. Procedure if opinion is equally divided. Where the court en banc is equally divided in opinion, or the necessary majority cannot be had, the case shall again be deliberated on, and if after such deliberation no decision is reached, the original action commenced in the court shall be dismissed; in appealed cases, the judgment or order appealed from shall stand affirmed; and on all incidental matters, the petition or motion shall be denied. A.M. No. 99-1-09-SC x x x A motion for reconsideration of a decision or resolution of the Court En Banc or of a Division may be granted upon a vote of a majority of the En Banc or of a Division, as the case may be, who actually took part in the deliberation of the motion. If the voting results in a tie, the motion for reconsideration is deemed denied. But since the instant cases fall under Sec. 4 (2), Art. VIII of the Constitution, the aforequoted provisions ought to be applied in conjunction with the prescription of the Constitution that the cases "shall be decided with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the instant cases and voted thereon." To repeat, the last vote on the issue of the constitutionality of the cityhood bills is that reflected in the April 28, 2009 Resolutiona 6-6 deadlock. On the postulate then that first, the finality of the November 18, 2008 Decision has yet to set in, the issuance of the precipitate16 entry of judgment notwithstanding, and second, the deadlocked vote on the second motion for reconsideration did not definitely settle the constitutionality of the cityhood laws, the Court is inclined to take another hard look at the underlying decision. Without belaboring in their smallest details the arguments for and against the procedural dimension of this disposition, it bears to stress that the Court has the power to suspend its own rules when the ends of justice would be served thereby.17 In the performance of their duties, courts should not be shackled by stringent rules which would result in manifest injustice. Rules of procedure are only tools crafted to facilitate the attainment of justice. Their strict and rigid application must be eschewed, if they result in technicalities that tend to frustrate rather than promote substantial justice. Substantial rights must not be prejudiced by a rigid and technical application of the rules in the altar of expediency. When a case is impressed with public interest, a relaxation of the application of the rules is in order.18 Time and again, this Court has suspended its own rules or excepted a particular case from their operation whenever the higher interests of justice so require.19 While perhaps not on all fours with the case, because it involved a purely business transaction, what the Court said in Chuidian v. Sandiganbayan20 is most apropos: To reiterate what the Court has said in Ginete vs. Court of Appeals and other cases, the rules of procedure should be viewed as mere instruments designed to facilitate the attainment of justice. They are not to be applied with severity and rigidity when such application would clearly defeat the very rationale for their conception and existence. Even the Rules of Court reflects this principle. The power to suspend or even disregard rules, inclusive of the one-motion rule, can be

LCP vs. COMELEC so pervasive and compelling as to alter even that which this Court has already declared to be final. The peculiarities of this case impel us to do so now.
The Court, by a vote of 6-4, grants the respondent LGUs motion for reconsideration of the Resolution of June 2, 2009, as well as their May 14, 2009 motion to consider the second motion for reconsideration of the November 18, 2008 Decision unresolved, and also grants said second motion for reconsideration. This brings us to the substantive aspect of the case. The Undisputed Factual Antecedents in Brief During the 11th Congress,21 fifty-seven (57) cityhood bills were filed before the House of Representatives.22 Of the fiftyseven (57), thirty-three (33) eventually became laws. The twenty-four (24) other bills were not acted upon. Later developments saw the introduction in the Senate of Senate Bill (S. Bill) No. 215723 to amend Sec. 450 of Republic Act No. (RA) 7160, otherwise known as the Local Government Code (LGC) of 1991. The proposed amendment sought to increase the income requirement to qualify for conversion into a city from PhP 20 million average annual income to PhP 100 million locally generated income. In March 2001, S. Bill No. 2157 was signed into law as RA 9009 to take effect on June 30, 2001. As thus amended by RA 9009, Sec. 450 of the LGC of 1991 now provides that "[a] municipality x x x may be converted into a component city if it has a [certified] locally generated average annual income x x x of at least [PhP 100 million] for the last two (2) consecutive years based on 2000 constant prices." After the effectivity of RA 9009, the Lower House of the 12th Congress adopted in July 2001 House (H.) Joint Resolution No. 2924 which, as its title indicated, sought to exempt from the income requirement prescribed in RA 9009 the 24 municipalities whose conversions into cities were not acted upon during the previous Congress. The 12th Congress ended without the Senate approving H. Joint Resolution No. 29. Then came the 13th Congress (July 2004 to June 2007), which saw the House of Representatives re-adopting H. Joint Resolution No. 29 as H. Joint Resolution No. 1 and forwarding it to the Senate for approval. The Senate, however, again failed to approve the joint resolution. During the Senate session held on November 6, 2006, Senator Aquilino Pimentel, Jr. asserted that passing H. Resolution No. 1 would, in net effect, allow a wholesale exemption from the income requirement imposed under RA 9009 on the municipalities. For this reason, he suggested the filing by the House of Representatives of individual bills to pave the way for the municipalities to become cities and then forwarding them to the Senate for proper action.25 Heeding the advice, sixteen (16) municipalities filed, through their respective sponsors, individual cityhood bills. Common to all 16 measures was a provision exempting the municipality covered from the PhP 100 million income requirement. As of June 7, 2007, both Houses of Congress had approved the individual cityhood bills, all of which eventually lapsed into law on various dates. Each cityhood law directs the COMELEC, within thirty (30) days from its approval, to hold a plebiscite to determine whether the voters approve of the conversion. As earlier stated, the instant petitions seek to declare the cityhood laws unconstitutional for violation of Sec. 10, Art. X of the Constitution, as well as for violation of the equal-protection clause. The wholesale conversion of municipalities into cities, the petitioners bemoan, will reduce the share of existing cities in the Internal Revenue Allotment (IRA), since more cities will partake of the internal revenue set aside for all cities under Sec. 285 of the LGC of 1991.26 Petitioners-in-intervention, LPC members themselves, would later seek leave and be allowed to intervene.

LCP vs. COMELEC Aside from their basic plea to strike down as unconstitutional the cityhood laws in question, petitioners and petitionersin-intervention collectively pray that an order issue enjoining the COMELEC from conducting plebiscites in the affected areas. An alternative prayer would urge the Court to restrain the poll body from proclaiming the plebiscite results.
On July 24, 2007, the Court en banc resolved to consolidate the petitions and the petitions-in-intervention. On March 11, 2008, it heard the parties in oral arguments. The Issues In the main, the issues to which all others must yield pivot on whether or not the cityhood laws violate (1) Sec. 10. Art. X of the Constitution and (2) the equal protection clause. In the November 18, 2008 Decision granting the petitions, Justice Antonio T. Carpio, for the Court, resolved the twin posers in the affirmative and accordingly declared the cityhood laws unconstitutional, deviating as they do from the uniform and non-discriminatory income criterion prescribed by the LGC of 1991. In so doing, the ponencia veritably agreed with the petitioners that the Constitution, in clear and unambiguous language, requires that all the criteria for the creation of a city shall be embodied and written in the LGC, and not in any other law. After a circumspect reflection, the Court is disposed to reconsider. Petitioners threshold posture, characterized by a strained interpretation of the Constitution, if accorded cogency, would veritably curtail and cripple Congress valid exercise of its authority to create political subdivisions. By constitutional design27 and as a matter of long-established principle, the power to create political subdivisions or LGUs is essentially legislative in character.28 But even without any constitutional grant, Congress can, by law, create, divide, merge, or altogether abolish or alter the boundaries of a province, city, or municipality. We said as much in the fairly recent case, Sema v. CIMELEC.29 The 1987 Constitution, under its Art. X, Sec. 10, nonetheless provides for the creation of LGUs, thus: Section 10. No province, city, municipality, or barangay shall be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the criteria established in the local government code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected. (Emphasis supplied.) As may be noted, the afore-quoted provision specifically provides for the creation of political subdivisions "in accordance with the criteria established in the local government code," subject to the approval of the voters in the unit concerned. The criteria referred to are the verifiable indicators of viability, i.e., area, population, and income, now set forth in Sec. 450 of the LGC of 1991, as amended by RA 9009. The petitioners would parlay the thesis that these indicators or criteria must be written only in the LGC and not in any other statute. Doubtless, the code they are referring to is the LGC of 1991. Pushing their point, they conclude that the cityhood laws that exempted the respondent LGUs from the income standard spelled out in the amendatory RA 9009 offend the Constitution. Petitioners posture does not persuade. The supposedly infringed Art. X, Sec. 10 is not a new constitutional provision. Save for the use of the term "barrio" in lieu of "barangay," "may be" instead of "shall," the change of the phrase "unit or units" to "political unit" and the addition of the modifier "directly" to the word "affected," the aforesaid provision is a substantial reproduction of Art. XI, Sec. 3 of the 1973 Constitution, which reads: Section 3. No province, city, municipality, or barrio may be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the criteria established in the local government code and subject to approval by a majority of the votes cast in a plebiscite in the unit or units affected. (Emphasis supplied.) It bears notice, however, that the "code" similarly referred to in the 1973 and 1987 Constitutions is clearly but a law Congress enacted. This is consistent with the aforementioned plenary power of Congress to create political units. Necessarily, since Congress wields the vast poser of creating political subdivisions, surely it can exercise the lesser

LCP vs. COMELEC authority of requiring a set of criteria, standards, or ascertainable indicators of viability for their creation. Thus, the only conceivable reason why the Constitution employs the clause "in accordance with the criteria established in the local government code" is to lay stress that it is Congress alone, and no other, which can impose the criteria. The eminent constitutionalist, Fr. Joaquin G. Bernas, S.J., in his treatise on Constitutional Law, specifically on the subject provision, explains:
Prior to 1965, there was a certain lack of clarity with regard to the power to create, divide, merge, dissolve, or change the boundaries of municipal corporations. The extent to which the executive may share in this power was obscured by Cardona v. Municipality of Binangonan.30 Pelaez v. Auditor General subsequently clarified the Cardona case when the Supreme Court said that "the authority to create municipal corporations is essentially legislative in nature."31 Pelaez, however, conceded that "the power to fix such common boundary, in order to avoid or settle conflicts of jurisdiction between adjoining municipalities, may partake of an administrative nature-involving as it does, the adoption of means and ways to carry into effect the law creating said municipalities."32 Pelaez was silent about division, merger, and dissolution of municipal corporations. But since division in effect creates a new municipality, and both dissolution and merger in effect abolish a legal creation, it may fairly be inferred that these acts are also legislative in nature. Section 10 [Art. X of the 1987 Constitution], which is a legacy from the 1973 Constitution, goes further than the doctrine in the Pelaez case. It not only makes creation, division, merger, abolition or substantial alteration of boundaries of provinces, cities, municipalities x x x subject to "criteria established in the local government code,"thereby declaring these actions properly legislative, but it also makes creation, division, merger, abolition or substantial alteration of boundaries "subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected."33 x x x (Emphasis added.) It remains to be observed at this juncture that when the 1987 Constitution speaks of the LGC, the reference cannot be to any specific statute or codification of laws, let alone the LGC of 1991.34 Be it noted that at the time of the adoption of the 1987 Constitution, Batas Pambansa Blg. (BP) 337, the then LGC, was still in effect. Accordingly, had the framers of the 1987 Constitution intended to isolate the embodiment of the criteria only in the LGC, then they would have actually referred to BP 337. Also, they would then not have provided for the enactment by Congress of a new LGC, as they did in Art. X, Sec. 335 of the Constitution. Consistent with its plenary legislative power on the matter, Congress can, via either a consolidated set of laws or a much simpler, single-subject enactment, impose the said verifiable criteria of viability. These criteria need not be embodied in the local government code, albeit this code is the ideal repository to ensure, as much as possible, the element of uniformity. Congress can even, after making a codification, enact an amendatory law, adding to the existing layers of indicators earlier codified, just as efficaciously as it may reduce the same. In this case, the amendatory RA 9009 upped the already codified income requirement from PhP 20 million to PhP 100 million. At the end of the day, the passage of amendatory laws is no different from the enactment of laws, i.e., the cityhood laws specifically exempting a particular political subdivision from the criteria earlier mentioned. Congress, in enacting the exempting law/s, effectively decreased the already codified indicators. Petitioners theory that Congress must provide the criteria solely in the LGC and not in any other law strikes the Court as illogical. For if we pursue their contention to its logical conclusion, then RA 9009 embodying the new and increased income criterion would, in a way, also suffer the vice of unconstitutionality. It is startling, however, that petitioners do not question the constitutionality of RA 9009, as they in fact use said law as an argument for the alleged unconstitutionality of the cityhood laws. As it were, Congress, through the medium of the cityhood laws, validly decreased the income criterion vis--vis the respondent LGUs, but without necessarily being unreasonably discriminatory, as shall be discussed shortly, by reverting to the PhP 20 million threshold what it earlier raised to PhP 100 million. The legislative intent not to subject respondent LGUs to the more stringent requirements of RA 9009 finds expression in the following uniform provision of the cityhood laws: Exemption from Republic Act No. 9009. The City of x x x shall be exempted from the income requirement prescribed under Republic Act No. 9009.

LCP vs. COMELEC In any event, petitioners constitutional objection would still be untenable even if we were to assume purely ex hypothesi the correctness of their underlying thesis, viz: that the conversion of a municipality to a city shall be in accordance with, among other things, the income criterion set forth in the LGC of 1991, and in no other; otherwise, the conversion is invalid. We shall explain.
Looking at the circumstances behind the enactment of the laws subject of contention, the Court finds that the LGCamending RA 9009, no less, intended the LGUs covered by the cityhood laws to be exempt from the PhP 100 million income criterion. In other words, the cityhood laws, which merely carried out the intent of RA 9009, adhered, in the final analysis, to the "criteria established in the Local Government Code," pursuant to Sec. 10, Art. X of the 1987 Constitution. We shall now proceed to discuss this exemption angle.36 Among the criteria established in the LGC pursuant to Sec.10, Art. X of the 1987 Constitution are those detailed in Sec. 450 of the LGC of 1991 under the heading "Requisites for Creation." The section sets the minimum income qualifying bar before a municipality or a cluster of barangays may be considered for cityhood. Originally, Sec. 164 of BP 337 imposed an average regular annual income "of at least ten million pesos for the last three consecutive years" as a minimum income standard for a municipal-to-city conversion. The LGC that BP 337 established was superseded by the LGC of 1991 whose then Sec. 450 provided that "[a] municipality or cluster of barangays may be converted into a component city if it has an average annual income, x x x of at least twenty million pesos (P20,000,000.00) for at least two (2) consecutive years based on 1991 constant prices x x x." RA 9009 in turn amended said Sec. 450 by further increasing the income requirement to PhP 100 million, thus: Section 450. Requisites for Creation. (a) A municipality or a cluster of barangays may be converted into a component city if it has a locally generated average annual income, as certified by the Department of Finance, of at least One Hundred Million Pesos (P100,000,000.00) for the last two (2) consecutive years based on 2000 constant prices, and if it has either of the following requisites: xxxx (c) The average annual income shall include the income accruing to the general fund, exclusive of special funds, transfers, and non-recurring income. (Emphasis supplied.) The legislative intent is not at all times accurately reflected in the manner in which the resulting law is couched. Thus, applying a verba legis37 or strictly literal interpretation of a statute may render it meaningless and lead to inconvenience, an absurd situation or injustice.38 To obviate this aberration, and bearing in mind the principle that the intent or the spirit of the law is the law itself,39 resort should be to the rule that the spirit of the law controls its letter.40 It is in this respect that the history of the passage of RA 9009 and the logical inferences derivable therefrom assume relevancy in discovering legislative intent.41 The rationale behind the enactment of RA 9009 to amend Sec. 450 of the LGC of 1991 can reasonably be deduced from Senator Pimentels sponsorship speech on S. Bill No. 2157. Of particular significance is his statement regarding the basis for the proposed increase from PhP 20 million to PhP 100 million in the income requirement for municipalities wanting to be converted into cities, viz: Senator Pimentel. Mr. President, I would have wanted this bill to be included in the whole set of proposed amendments that we have introduced to precisely amend the [LGC]. However, it is a fact that there is a mad rush of municipalities wanting to be converted into cities. Whereas in 1991, when the [LGC] was approved, there were only 60 cities, today the number has increased to 85 cities, with 41 more municipalities applying for conversion x x x. At the rate we are going, I am apprehensive that before long this nation will be a nation of all cities and no municipalities. It is for that reason, Mr. President, that we are proposing among other things, that the financial requirement, which, under the [LGC], is fixed at P20 million, be raised to P100 million to enable a municipality to have the right to be converted into a city, and the P100 million should be sourced from locally generated funds.

LCP vs. COMELEC Congress to be sure knew, when RA 9009 was being deliberated upon, of the pendency of several bills on cityhood, wherein the applying municipalities were qualified under the then obtaining PhP 20 million-income threshold. These included respondent LGUs. Thus, equally noteworthy is the ensuing excerpts from the floor exchange between then Senate President Franklin Drilon and Senator Pimentel, the latter stopping short of saying that the income threshold of PhP 100 million under S. Bill No. 2157 would not apply to municipalities that have pending cityhood bills, thus:
THE PRESIDENT. The Chair would like to ask for some clarificatory point. x x x THE PRESIDENT. This is just on the point of the pending bills in the Senate which propose the conversion of a number of municipalities into cities and which qualify under the present standard. We would like to know the view of the sponsor: Assuming that this bill becomes a law, will the Chamber apply the standard as proposed in this bill to those bills which are pending for consideration? SENATOR PIMENTEL, Mr. President, it might not be fair to make this bill x x x [if] approved, retroact to the bills that are pending in the Senate for conversion from municipalities to cities. THE PRESIDENT. Will there be an appropriate language crafted to reflect that view? Or does it not become a policy of the Chamber, assuming that this bill becomes a law x x x that it will apply to those bills which are already approved by the House under the old version of the [LGC] and are now pending in the Senate? The Chair does not know if we can craft a language which will limit the application to those which are not yet in the Senate. Or is that a policy that the Chamber will adopt? SENATOR PIMENTEL. Mr. President, personally, I do not think it is necessary to put that provision because what we are saying here will form part of the interpretation of this bill. Besides, if there is no retroactivity clause, I do not think that the bill would have any retroactive effect. THE PRESIDENT. So the understanding is that those bills which are already pending in the Chamber will not be affected. SENATOR PIMENTEL. These will not be affected, Mr. President.42 (Emphasis and underscoring supplied.) What the foregoing Pimental-Drilon exchange eloquently indicates are the following complementary legislative intentions: (1) the then pending cityhood bills would be outside the pale of the minimum income requirement of PhP 100 million that S. Bill No. 2159 proposes; and (2) RA 9009 would not have any retroactive effect insofar as the cityhood bills are concerned. Given the foregoing perspective, it is not amiss to state that the basis for the inclusion of the exemption clause of the cityhood laws is the clear-cut intent of Congress of not according retroactive effect to RA 9009. Not only do the congressional records bear the legislative intent of exempting the cityhood laws from the income requirement of PhP 100 million. Congress has now made its intention to exempt express in the challenged cityhood laws. Legislative intent is part and parcel of the law, the controlling factor in interpreting a statute. In construing a statute, the proper course is to start out and follow the true intent of the Legislature and to adopt the sense that best harmonizes with the context and promotes in the fullest manner the policy and objects of the legislature.43 In fact, any interpretation that runs counter to the legislative intent is unacceptable and invalid.44 Torres v. Limjapcould not have been more precise: The intent of a Statute is the Law. If a statute is valid, it is to have effect according to the purpose and intent of the lawmaker. The intent is x x x the essence of the law and the primary rule of construction is to ascertain and give effect to that intent. The intention of the legislature in enacting a law is the law itself, and must be enforced when ascertained, although it may not be consistent with the strict letter of the statute. Courts will not follow the letter of a statute when it leads away from the true intent and purpose of the legislature and to conclusions inconsistent with the general purpose of the act. Intent is the spirit which gives life to a legislative enactment. In construing statutes the proper course is to start out and follow the true intent of the legislature x x x.45 (Emphasis supplied.)

LCP vs. COMELEC As emphasized at the outset, behind every law lies the presumption of constitutionality.46 Consequently, to him who would assert the unconstitutionality of a statute belongs the burden of proving otherwise. Laws will only be declared invalid if a conflict with the Constitution is beyond reasonable doubt.47 Unfortunately for petitioners and petitioners-inintervention, they failed to discharge their heavy burden.
It is contended that the deliberations on the cityhood bills and the covering joint resolution were undertaken in the 11th and/or the 12th Congress. Accordingly, so the argument goes, such deliberations, more particularly those on the unapproved resolution exempting from RA 9009 certain municipalities, are without significance and would not qualify as extrinsic aids in construing the cityhood laws that were passed during the 13th Congress, Congress not being a continuing body. The argument is specious and glosses over the reality that the cityhood billswhich were already being deliberated upon even perhaps before the conception of RA 9009were again being considered during the 13th Congress after being tossed around in the two previous Congresses. And specific reference to the cityhood bills was also made during the deliberations on RA 9009. At the end of the day, it is really immaterial if Congress is not a continuing legislative body. What is important is that the debates, deliberations, and proceedings of Congress and the steps taken in the enactment of the law, in this case the cityhood laws in relation to RA 9009 or vice versa, were part of its legislative history and may be consulted, if appropriate, as aids in the interpretation of the law.48And of course the earlier cited Drilon-Pimentel exchange on whether or not the 16 municipalities in question would be covered by RA 9009 is another vital link to the historical chain of the cityhood bills. This and other proceedings on the bills are spread in the Congressional journals, which cannot be conveniently reduced to pure rhetoric without meaning whatsoever, on the simplistic and non-sequitur pretext that Congress is not a continuing body and that unfinished business in either chamber is deemed terminated at the end of the term of Congress. This brings us to the challenge to the constitutionality of cityhood laws on equal protection grounds. To the petitioners, the cityhood laws, by granting special treatment to respondent municipalities/LGUs by way of exemption from the standard PhP 100 million minimum income requirement, violate Sec.1, Art. III of the Constitution, which in part provides that no person shall "be denied the equal protection of the laws." Petitioners challenge is not well taken. At its most basic, the equal protection clause proscribes undue favor as well as hostile discrimination. Hence, a law need not operate with equal force on all persons or things to be conformable with Sec. 1, Art. III of the Constitution. The equal protection guarantee is embraced in the broader and elastic concept of due process, every unfair discrimination being an offense against the requirements of justice and fair play. It has nonetheless come as a separate clause in Sec. 1, Art. III of the Constitution to provide for a more specific protection against any undue discrimination or antagonism from government. Arbitrariness in general may be assailed on the basis of the due process clause. But if a particular challenged act partakes of an unwarranted partiality or prejudice, the sharper weapon to cut it down is the equal protection clause.49 This constitutional protection extends to all persons, natural or artificial, within the territorial jurisdiction. Artificial persons, as the respondent LGUs herein, are, however, entitled to protection only insofar as their property is concerned.50 In the proceedings at bar, petitioner LCP and the intervenors cannot plausibly invoke the equal protection clause, precisely because no deprivation of property results by virtue of the enactment of the cityhood laws. The LCPs claim that the IRA of its member-cities will be substantially reduced on account of the conversion into cities of the respondent LGUs would not suffice to bring it within the ambit of the constitutional guarantee. Indeed, it is presumptuous on the part of the LCP member-cities to already stake a claim on the IRA, as if it were their property, as the IRA is yet to be allocated. For the same reason, the municipalities that are not covered by the uniform exemption clause in the cityhood laws cannot validly invoke constitutional protection. For, at this point, the conversion of a municipality into a city will only affect its status as a political unit, but not its property as such. As a matter of settled legal principle, the fundamental right of equal protection does not require absolute equality. It is enough that all persons or things similarly situated should be treated alike, both as to rights or privileges conferred and responsibilities or obligations imposed. The equal protection clause does not preclude the state from recognizing and acting upon factual differences between individuals and classes. It recognizes that inherent in the right to legislate is the

LCP vs. COMELEC right to classify,51 necessarily implying that the equality guaranteed is not violated by a legislation based on reasonable classification. Classification, to be reasonable, must (1) rest on substantial distinctions; (2) be germane to the purpose of the law; (3) not be limited to existing conditions only; and (4) apply equally to all members of the same class.52 The Court finds that all these requisites have been met by the laws challenged as arbitrary and discriminatory under the equal protection clause.
As things stand, the favorable treatment accorded the sixteen (16) municipalities by the cityhood laws rests on substantial distinction. Indeed, respondent LGUs, which are subjected only to the erstwhile PhP 20 million income criterion instead of the stringent income requirement prescribed in RA 9009, are substantially different from other municipalities desirous to be cities. Looking back, we note that respondent LGUs had pending cityhood bills before the passage of RA 9009. There lies part of the tipping difference. And years before the enactment of the amendatory RA 9009, respondents LGUs had already met the income criterion exacted for cityhood under the LGC of 1991. Due to extraneous circumstances, however, the bills for their conversion remained unacted upon by Congress. As aptly observed by then Senator, now Manila Mayor, Alfredo Lim in his speech sponsoring H. Joint Resolution No. 1, or the cityhood bills, respondent LGUs saw themselves confronted with the "changing of the rules in the middle of the game." Some excerpts of Senator Lims sponsorship speech: x x x [D]uring the Eleventh Congress, fifty-seven (57) municipalities applied for city status, confident that each has met the requisites for conversion under Section 450 of the [LGC], particularly the income threshold of P20 million. Of the 57 that filed, thirty-two (32) were enacted into law; x x x while the rest twenty-four (24) in all failed to pass through Congress. Shortly before the long recess of Congress in February 2001, to give way to the May elections x x x, Senate Bill No. 2157, which eventually became [RA] 9009, was passed into law, effectively raising the income requirement for creation of cities to a whooping P100 million x x x. Much as the proponents of the 24 cityhood bills then pending struggled to beat the effectivity of the law on June 30, 2001, events that then unfolded were swift and overwhelming that Congress just did not have the time to act on the measures. Some of these intervening events were x x x the impeachment of President Estrada x x x and the May 2001 elections. The imposition of a much higher income requirement for the creation of a city x x x was unfair; like any sport changing the rules in the middle of the game. Undaunted, they came back during the [12th] Congress x x x. They filed House Joint Resolution No. 29 seeking exemption from the higher income requirement of RA 9009. For the second time, [however], time ran out from them. For many of the municipalities whose Cityhood Bills are now under consideration, this year, at the closing days of the [13th] Congress, marks their ninth year appealing for fairness and justice. x x x I, for one, share their view that fairness dictates that they should be given a legal remedy by which they could be allowed to prove that they have all the necessary qualifications for city status using the criteria set forth under the [LGC] prior to its amendment by RA 9009. Hence, when House Joint Resolution No. 1 reached the Senate x x x I immediately set the public hearing x x x. On July 25, 2006, I filed Committee Report No. 84 x x x. On September 6, I delivered the sponsorship x x x. x x x By November 14, the measure had reverted to the period of individual amendments. This was when the then acting majority leader, x x x informed the Body that Senator Pimentel and the proponents of House Joint Resolution No. 1 have agreed to the proposal of the Minority Leader for the House to first approve the individual Cityhood Bills of the qualified municipalities, along with the provision exempting each of them from the higher income requirement of RA 9009. x x x This led to the certification issued by the proponents short-listing fourteen (14) municipalities deemed to be qualified for city-status. Acting on the suggestion of Senator Pimentel, the proponents lost no time in working for the approval by the House of Representatives of their individual Cityhood Bills, each containing a provision of exemption from the higher income requirement of RA 9009. On the last session day of last year, December 21, the House transmitted to the Senate the Cityhood Bills of twelve out of the 14 pre-qualified municipalities. Your Committee immediately conducted the public hearing x x x.

LCP vs. COMELEC The whole process I enumerated [span] three Congresses x x x.
In essence, the Cityhood Bills now under consideration will have the same effect as that of House Joint Resolution No. 1 because each of the 12 bills seeks exemption from the higher income requirement of RA 9009. The proponents are invoking the exemption on the basis of justice and fairness. Each of the 12 municipalities has all the requisites for conversion into a component city based on the old requirements set forth under Section 450 of the [LGC], prior to its amendment by RA 9009, namely: x x x53(Emphasis supplied.) In hindsight, the peculiar conditions, as depicted in Senator Lims speech, which respondent LGUs found themselves in were unsettling. They were qualified cityhood applicants before the enactment of RA 009. Because of events they had absolutely nothing to do with, a spoiler in the form of RA 9009 supervened. Now, then, to impose on them the much higher income requirement after what they have gone through would appear to be indeed "unfair," to borrow from Senator Lim. Thus, the imperatives of fairness dictate that they should be given a legal remedy by which they would be allowed to prove that they have all the necessary qualifications for city status, using the criteria set forth under the LGC of 1991 prior to its amendment by RA 9009. Truly, the peculiar conditions of respondent LGUs, which are actual and real, provide sufficient grounds for legislative classification. To be sure, courts, regardless of doubts they might be entertaining, cannot question the wisdom of the congressional classification, if reasonable, or the motivation underpinning the classification.54 By the same token, they do not sit to determine the propriety or efficacy of the remedies Congress has specifically chosen to extend. That is its prerogative. The power of the Legislature to make distinctions and classifications among persons is, to reiterate, neither curtailed nor denied by the equal protection clause. A law can be violative of the constitutional limitation only when the classification is without reasonable basis. The classification is also germane to the purpose of the law. The exemption of respondent LGUs/municipalities from the PhP 100 million income requirement was meant to reduce the inequality occasioned by the passage of the amendatory RA 9009. From another perspective, the exemption was unquestionably designed to insure that fairness and justice would be accorded respondent LGUs. Let it be noted that what were then the cityhood bills covering respondent LGUs were part and parcel of the original 57 conversion bills filed in the 11th Congress, 33 of those became laws before the adjournment of that Congress. The then bills of the challenged cityhood laws were not acted upon due, inter alia, to the impeachment of then President Estrada, the related jueteng scandal investigations conducted before, and the EDSA events that followed the aborted impeachment. While the equal protection guarantee frowns upon the creation of a privileged class without justification, inherent in the equality clause is the exhortation for the Legislature to pass laws promoting equality or reducing existing inequalities. The enactment of the cityhood laws was in a real sense an attempt on the part of Congress to address the inequity dealt the respondent LGUs. These laws positively promoted the equality and eliminated the inequality, doubtless unintended, between respondent municipalities and the thirty-three (33) other municipalities whose cityhood bills were enacted during the 11th Congress. Respondent municipalities and the 33 other municipalities, which had already been elevated to city status, were all found to be qualified under the old Sec. 450 of the LGC of 1991 during the 11th Congress. As such, both respondent LGUs and the 33 other former municipalities are under like circumstances and conditions. There is, thus, no rhyme or reason why an exemption from the PhP 100 million requirement cannot be given to respondent LGUs. Indeed, to deny respondent LGUs/municipalities the same rights and privileges accorded to the 33 other municipalities when, at the outset they were similarly situated, is tantamount to denying the former the protective mantle of the equal protection clause. In effect, petitioners and petitioners-in-intervention are creating an absurd situation in which an alleged violation of the equal protection clause of the Constitution is remedied by another violation of the same clause. The irony is not lost to the Court. Then too the non-retroactive effect of RA 9009 is not limited in application only to conditions existing at the time of its enactment. It is intended to apply for all time, as long as the contemplated conditions obtain. To be more precise, the legislative intent underlying the enactment of RA 9009 to exclude would-be-cities from the PhP 100 million criterion would hold sway, as long as the corresponding cityhood bill has been filed before the effectivity of RA 9009 and the concerned municipality qualifies for conversion into a city under the original version of Sec. 450 of the LGC of 1991.

LCP vs. COMELEC Viewed in its proper light, the common exemption clause in the cityhood laws is an application of the non-retroactive effect of RA 9009 on the cityhood bills. It is not a declaration of certain rights, but a mere declaration of prior qualification and/or compliance with the non-retroactive effect of RA 9009.
Lastly and in connection with the third requisite, the uniform exemption clause would apply to municipalities that had pending cityhood bills before the passage of RA 9009 and were compliant with then Sec. 450 of the LGC of 1991, which prescribed an income requirement of PhP 20 million. It is hard to imagine, however, if there are still municipalities out there belonging in context to the same class as the sixteen (16) respondent LGUs. Municipalities that cannot claim to belong to the same class as the 16 cannot seek refuge in the cityhood laws. The former have to comply with the PhP 100 million income requirement imposed by RA 9009. A final consideration. The existence of the cities consequent to the approval of the creating, but challenged, cityhood laws in the plebiscites held in the affected LGUs is now an operative fact. New cities appear to have been organized and are functioning accordingly, with new sets of officials and employees. Other resulting events need not be enumerated. The operative fact doctrine provides another reason for upholding the constitutionality of the cityhood laws in question. In view of the foregoing discussion, the Court ought to abandon as it hereby abandons and sets aside the Decision of November 18, 2008 subject of reconsideration. And by way of summing up the main arguments in support of this disposition, the Court hereby declares the following: (1) Congress did not intend the increased income requirement in RA 9009 to apply to the cityhood bills which became the cityhood laws in question. In other words, Congress intended the subject cityhood laws to be exempted from the income requirement of PhP 100 million prescribed by RA 9009; (2) The cityhood laws merely carry out the intent of RA 9009, now Sec. 450 of the LGC of 1991, to exempt respondent LGUs from the PhP 100 million income requirement; (3) The deliberations of the 11th or 12th Congress on unapproved bills or resolutions are extrinsic aids in interpreting a law passed in the 13th Congress. It is really immaterial if Congress is not a continuing body. The hearings and deliberations during the 11th and 12th Congress may still be used as extrinsic reference inasmuch as the same cityhood bills which were filed before the passage of RA 9009 were being considered during the 13th Congress. Courts may fall back on the history of a law, as here, as extrinsic aid of statutory construction if the literal application of the law results in absurdity or injustice. (4) The exemption accorded the 16 municipalities is based on the fact that each had pending cityhood bills long before the enactment of RA 9009 that substantially distinguish them from other municipalities aiming for cityhood. On top of this, each of the 16 also met the PhP 20 million income level exacted under the original Sec. 450 of the 1991 LGC. And to stress the obvious, the cityhood laws are presumed constitutional. As we see it, petitioners have not overturned the presumptive constitutionality of the laws in question. WHEREFORE, respondent LGUs Motion for Reconsideration dated June 2, 2009, their "Motion to Amend the Resolution of April 28, 2009 by Declaring Instead that Respondents Motion for Reconsideration of the Resolution of March 31, 2009 and Motion for Leave to File and to Admit Attached Second Motion for Reconsideration of the Decision Dated November 18, 2008 Remain Unresolved and to Conduct Further Proceedings," dated May 14, 2009, and their second Motion for Reconsideration of the Decision dated November 18, 2008 are GRANTED. The June 2, 2009, the March 31, 2009, and April 31, 2009 Resolutions are REVERSED and SET ASIDE. The entry of judgment made on May 21, 2009 must accordingly be RECALLED. The instant consolidated petitions and petitions-in-intervention are DISMISSED. The cityhood laws, namely Republic Act Nos. 9389, 9390, 9391, 9392, 9393, 9394, 9398, 9404, 9405, 9407, 9408, 9409, 9434, 9435, 9436, and 9491 are declared VALID and CONSTITUTIONAL. SO ORDERED.

LCP vs. COMELEC Republic of the Philippines SUPREME COURT Manila

EN BANC

LEAGUE OF CITIES OF THE PHILIPPINES(LCP) represented by LCP National President JERRY P. TREAS, CITY OF ILOILO represented by MAYOR JERRY P. TREAS, CITY OF CALBAYOG represented by MAYOR MEL SENEN S. SARMIENTO, and JERRY P. TREAS in his personal capacity as taxpayer, Petitioners, - 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, PROVINCEOF EASTERN SAMAR; and MUNICIPALITYOF TAYABAS, PROVINCE OF QUEZON, Respondents.

G.R. No. 176951

Present:

PUNO,* C.J., CARPIO, CORONA, CARPIO MORALES, VELASCO, JR., NACHURA,* LEONARDO-DE CASTRO, BRION, PERALTA,

CITY OF TARLAC, CITY OF SANTIAGO, CITY OF IRIGA, CITY OF LIGAO, CITY OF LEGAZPI, CITY OF TAGAYTAY, CITY OF SURIGAO, CITY OF BAYAWAN, CITY OF

BERSAMIN, DEL CASTILLO,

LCP vs. COMELEC

SILAY, CITY OF GENERAL SANTOS,

CITY OF ZAMBOANGA, CITY OF GINGOOG, CITY OF CAUAYAN, CITY OF ABAD, and PAGADIAN, CITY OF SAN CARLOS, CITY OF SAN FERNANDO, CITY OF TACURONG, VILLARAMA, CITY OF TANGUB, JR., JJ. CITY OF OROQUIETA, CITY OF URDANETA, CITY OF VICTORIAS, CITY OF CALAPAN, CITY OF HIMAMAYLAN, CITY OF BATANGAS, CITY OF BAIS, CITY OF CADIZ, and CITY OF TAGUM, Petitioners-In-Intervention. x-------------------------------------------x

LEAGUE OF CITIES OF THE PHILIPPINES (LCP) represented by LCP National President JERRY P. TREAS, CITY OF ILOILO represented by MAYOR JERRY P. TREAS, CITY OF CALBAYOG represented by MAYOR MEL SENEN S. SARMIENTO, and JERRY P. TREAS in his personal capacity as taxpayer, Petitioners,

- versus -

COMMISSION ON ELECTIONS; MUNICIPALITY OF LAMITAN,

LCP vs. COMELEC

PROVINCE OF BASILAN; MUNICIPALITY OF TABUK, PROVINCE OF KALINGA; MUNICIPALITY OF BAYUGAN, PROVINCE OF AGUSAN DEL SUR;MUNICIPALITY OF BATAC, PROVINCE OF ILOCOS NORTE; MUNICIPALITY OF MATI,PROVINCE OF DAVAO ORIENTAL; and MUNICIPALITY OF GUIHULNGAN,PROVINCE OF NEGROS ORIENTAL, Respondents.

CITY OF TARLAC, CITY OF

SANTIAGO, CITY OF IRIGA,

CITY OF LIGAO, CITY OF LEGAZPI, CITY OF TAGAYTAY, CITY OF SURIGAO, CITY OF BAYAWAN, CITY OF SILAY, CITY OF GENERAL SANTOS, CITY OF ZAMBOANGA, CITY OF GINGOOG, CITY OF CAUAYAN, CITY OF PAGADIAN, CITY OF SAN CARLOS, CITY OF SAN FERNANDO, CITY OF TACURONG, CITY OF TANGUB, CITY OF OROQUIETA, CITY OF URDANETA, CITY OF VICTORIAS, CITY OFCALAPAN, CITY OF HIMAMAYLAN, CITY OF BATANGAS, CITY OF BAIS, CITY OF CADIZ, and CITY OF TAGUM, Petitioners-In-Intervention. x-------------------------------------------x

LEAGUE OF CITIES OF THE by LCP National President

PHILIPPINES (LCP) represented

G.R. No. 177499

LCP vs. COMELEC

JERRY P. TREAS, CITY OF ILOILO represented by MAYOR JERRY P. TREAS, CITY OF CALBAYOG represented by MAYOR MEL SENEN S. SARMIENTO, and JERRY P. TREAS in his personal capacity as taxpayer, Petitioners,

- versus -

COMMISSION ON ELECTIONS; MUNICIPALITY OF CABADBARAN, PROVINCE OF AGUSAN DEL NORTE; MUNICIPALITY OF CARCAR, PROVINCE OF CEBU; and MUNICIPALITY OF EL SALVADOR, MISAMIS ORIENTAL, Respondents.

CITY OF TARLAC, CITY OF

SANTIAGO, CITY OF IRIGA,

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

LCP vs. COMELEC

LCP vs. COMELEC

G.R. No. 178056

LCP vs. COMELEC

LCP vs. COMELEC

Promulgated:

December 21, 2009

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

DECISION VELASCO, JR. J.:

LCP vs. COMELEC

Ratio legis est anima. The spirit rather than the letter of the law. A statute must be read according to its spirit or intent,[1] for what is within the spirit is within the statute although it is not within its letter, and that which is within the letter but not within the spirit is not within the statute.[2] Put a bit differently, that which is within the intent of the lawmaker is as much within the statute as if within the letter; and that which is within the letter of the statute is not within the statute unless within the intent of the lawmakers.[3] Withal, courts ought not to interpret and should not accept an interpretation that would defeat the intent of the law and its legislators.[4]

So as it is exhorted to pass on a challenge against the validity of an act of Congress, a coequal branch of government, it behooves the Court to have at once one principle in mind: the presumption of constitutionality of statutes.[5] This presumption finds its roots in the tri-partite system of government and the corollary separation of powers, which enjoins the three great departments of the government to accord a becoming courtesy for each others acts, and not to interfere inordinately with the exercise by one of its official functions. Towards this end, courts ought to reject assaults against the validity of statutes, barring of course their clear unconstitutionality. To doubt is to sustain, the theory in context being that the law is the product of earnest studies by Congress to ensure that no constitutional prescription or concept is infringed.[6] Consequently, before a law duly challenged is nullified, an unequivocal breach of, or a clear conflict with, the Constitution, not merely a doubtful or argumentative one, must be demonstrated in such a manner as to leave no doubt in the mind of the Court.[7]

BACKGROUND The consolidated petitions for prohibition commenced by the League of Cities of the Philippines (LCP), City of Iloilo, City of Calbayog, and Jerry P. Treas[8] assail the constitutionality of the sixteen (16) laws,[9] each converting the municipality covered thereby into a city (cityhood laws, hereinafter) and seek to enjoin the Commission on Elections (COMELEC) from conducting plebiscites pursuant to subject laws.

By Decision[10] dated November 18, 2008, the Court en banc, by a 6-5 vote, granted the petitions and nullified the sixteen (16) cityhood laws for being violative of the Constitution, specifically its Section 10, Article X and the equal protection clause.

LCP vs. COMELEC

Subsequently, respondent local government units (LGUs) moved for reconsideration, raising, as one of the issues, the validity of the factual premises not contained in the pleadings of the parties, let alone established, which became the bases of the Decision subject of reconsideration.[11] By Resolution of March 31, 2009, a divided Court denied the motion for reconsideration.

A second motion for reconsideration followed in which respondent LGUs prayed as follows:
WHEREFORE, respondents respectfully pray that the Honorable Court reconsider its Resolution dated March 31, 2009, in so far as it denies for lack of merit respondents Motion for Reconsideration dated December 9, 2008 and in lieu thereof, considering that new and meritorious arguments are raised by respondents Motion for Reconsideration dated December 9, 2008 to grant afore-mentioned Motion for Reconsideration dated December 9, 2008 and dismiss the Petitions For Prohibition in the instant case.

Per Resolution dated April 28, 2009, the Court, voting 6-6, disposed of the motion as follows:
By a vote of 6-6, the Motion for Reconsideration of the Resolution of 31 March 2009 is DENIED for lack of merit. The motion is denied since there is no majority that voted to overturn the Resolution of 31 March 2009. The Second Motion for Reconsideration of the Decision of 18 November 2008 is DENIED for being a prohibited pleading, and the Motion for Leave to Admit Attached Petition in Intervention x x x filed by counsel for Ludivina T. Mas, et al. are also DENIED. No further pleadings shall be entertained. Let entry of judgment be made in due course. x x x

On May 14, 2009, respondent LGUs filed a Motion to Amend the Resolution of April 28, 2009 by Declaring Instead that Respondents Motion for Reconsideration of the Resolution of March 31, 2009 and Motion for Leave to File and to Admit Attached Second Motion for

LCP vs. COMELEC

Reconsideration of the Decision Dated November 18, 2008 Remain Unresolved and to Conduct Further Proceedings Thereon.

Per its Resolution of June 2, 2009, the Court declared the May 14, 2009 motion adverted to as expunged in light of the entry of judgment made on May 21, 2009. Justice Leonardo-De Castro, however, taking common cause with Justice Bersamin to grant the motion for reconsideration of the April 28, 2009 Resolution and to recall the entry of judgment, stated the observation, and with reason, that the entry was effected before the Court could act on the aforesaid motion which was filed within the 15-day period counted from receipt of the April 28, 2009 Resolution.[12]

Forthwith, respondent LGUs filed a Motion for Reconsideration of the Resolution of June 2, 2009 to which some of the petitioners and petitioners-in-intervention filed their respective comments. The Court will now rule on this incident. But first, we set and underscore some basic premises:

(1) The initial motion to reconsider the November 18, 2008 Decision, as Justice LeonardoDe Castro noted, indeed raised new and substantial issues, inclusive of the matter of the correctness of the factual premises upon which the said decision was predicated. The 6-6 vote on the motion for reconsideration per the Resolution of March 31, 2009, which denied the motion on the sole ground that the basic issues have already been passed upon reflected a divided Court on the issue of whether or not the underlying Decision of November 18, 2008 had indeed passed upon the basic issues raised in the motion for reconsideration of the said decision;

(2) The aforesaid May 14, 2009 Motion to Amend Resolution of April 28, 2009 was precipitated by the tie vote which served as basis for the issuance of said resolution. This May 14,

LCP vs. COMELEC

2009 motionwhich mainly argued that a tie vote is inadequate to declare a law unconstitutional remains unresolved; and

(3) Pursuant to Sec. 4(2), Art. VIII of the Constitution, all cases involving the constitutionality of a law shall be heard by the Court en banc and decided with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon.

The basic issue tendered in this motion for reconsideration of the June 2, 2009 Resolution boils down to whether or not the required vote set forth in the aforesaid Sec. 4(2), Art. VIII is limited only to the initial vote on the petition or also to the subsequent voting on the motion for reconsideration where the Court is called upon and actually votes on the constitutionality of a law or like issuances. Or, as applied to this case, would a minute resolution dismissing, on a tie vote, a motion for reconsideration on the sole stated ground that the basic issues have already been passed suffice to hurdle the voting requirement required for a declaration of the unconstitutionality of the cityhood laws in question?

The 6-6 vote on the motion to reconsider the Resolution of March 31, 2009, which denied the initial motion on the sole ground that the basic issues had already been passed upon betrayed an evenly divided Court on the issue of whether or not the underlying Decision of November 18, 2008 had indeed passed upon the issues raised in the motion for reconsideration of the said decision. But at the end of the day, the single issue that matters and the vote that really counts really turn on the constitutionality of the cityhood laws. And be it remembered that the inconclusive 6-6 tie vote reflected in the April 28, 2009 Resolution was the last vote on the issue of whether or not the cityhood laws infringe the Constitution. Accordingly, the motions of the

LCP vs. COMELEC

respondent LGUs, in light of the 6-6 vote, should be deliberated anew until the required concurrence on the issue of the validity or invalidity of the laws in question is, on the merits, secured.

It ought to be clear that a deadlocked vote does not reflect the majority of the Members contemplated in Sec. 4 (2) of Art. VIII of the Constitution, which requires that:
All cases involving the constitutionality of a treaty, international or executive agreement, or law shall be heard by the Supreme Court en banc, x x x shall be decided with theconcurrence of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon. (Emphasis added.)

Webster defines majority as a number greater than half of a total.[13] In plain language, this means 50% plus one. In Lambino v. Commission on Elections, Justice, now Chief Justice, Puno, in a separate opinion, expressed the view that a deadlocked vote of six (6) is not a majority and a non-majority cannot write a rule with precedential value.[14]

As may be noted, the aforequoted Sec. 4 of Art. VIII, as couched, exacts a majority vote in the determination of a case involving the constitutionality of a statute, without distinguishing whether such determination is made on the main petition or thereafter on a motion for reconsideration. This is as it should be, for, to borrow from the late Justice Ricardo J. Francisco: x x x [E]ven assuming x x x that the constitutional requirement on the concurrence of the majority was initially reached in the x x x ponencia, the same is inconclusive as it was still open for review by way of a motion for reconsideration.[15]

To be sure, the Court has taken stock of the rule on a tie-vote situation, i.e., Sec. 7, Rule 56 and the complementary A.M. No. 99-1-09- SC, respectively, providing that:

LCP vs. COMELEC

SEC. 7. Procedure if opinion is equally divided. Where the court en banc is equally divided in opinion, or the necessary majority cannot be had, the case shall again be deliberated on, and if after such deliberation no decision is reached, the original action commenced in the court shall be dismissed; in appealed cases, the judgment or order appealed from shall stand affirmed; and on all incidental matters, the petition or motion shall be denied. A.M. No. 99-1-09-SC x x x A motion for reconsideration of a decision or resolution of the Court En Banc or of a Division may be granted upon a vote of a majority of the En Banc or of a Division, as the case may be, who actually took part in the deliberation of the motion. If the voting results in a tie, the motion for reconsideration is deemed denied.

But since the instant cases fall under Sec. 4 (2), Art. VIII of the Constitution, the aforequoted provisions ought to be applied in conjunction with the prescription of the Constitution that the cases shall be decided with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the instant cases and voted thereon. To repeat, the last vote on the issue of the constitutionality of the cityhood bills is that reflected in the April 28, 2009 Resolutiona 6-6 deadlock. On the postulate then that first, the finality of the November 18, 2008 Decision has yet to set in, the issuance of the precipitate[16] entry of judgment notwithstanding, and second, the deadlocked vote on the second motion for reconsideration did not definitely settle the constitutionality of the cityhood laws, the Court is inclined to take another hard look at the underlying decision. Without belaboring in their smallest details the arguments for and against the procedural dimension of this disposition, it bears to stress that the Court has the power to suspend its own rules when the ends of justice would be served thereby.[17] In the performance of their duties, courts should not be shackled by stringent rules which would result in manifest injustice. Rules of procedure are only tools crafted to facilitate the attainment of justice. Their strict and rigid application must be eschewed, if they result in technicalities that tend to frustrate rather than promote substantial justice. Substantial rights must not be prejudiced by a rigid and technical application of the rules in the altar of expediency. When a case is impressed with public interest, a relaxation of the application of the rules is in order.[18] Time and again, this Court has suspended its own rules or excepted a particular case from their operation whenever the higher interests of justice so require.[19]

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While perhaps not on all fours with the case, because it involved a purely business transaction, what the Court said in Chuidian v. Sandiganbayan[20]is most apropos:
To reiterate what the Court has said in Ginete vs. Court of Appeals and other cases, the rules of procedure should be viewed as mere instruments designed to facilitate the attainment of justice. They are not to be applied with severity and rigidity when such application would clearly defeat the very rationale for their conception and existence. Even the Rules of Court reflects this principle. The power to suspend or even disregard rules, inclusive of the one-motion rule, can be so pervasive and compelling as to alter even that which this Court has already declared to be final. The peculiarities of this case impel us to do so now.

The Court, by a vote of 6-4, grants the respondent LGUs motion for reconsideration of the Resolution of June 2, 2009, as well as their May 14, 2009 motion to consider the second motion for reconsideration of the November 18, 2008 Decision unresolved, and also grants said second motion for reconsideration. This brings us to the substantive aspect of the case.

The Undisputed Factual Antecedents in Brief

During the 11th Congress,[21] fifty-seven (57) cityhood bills were filed before the House of Representatives.[22] Of the fifty-seven (57), thirty-three (33) eventually became laws. The twentyfour (24) other bills were not acted upon.

Later developments saw the introduction in the Senate of Senate Bill (S. Bill) No. 2157[23] to amend Sec. 450 of Republic Act No. (RA) 7160, otherwise known as the Local Government Code (LGC) of 1991. The proposed amendment sought to increase the income requirement to qualify for conversion into a city from PhP 20 million average annual income to PhP 100 million locally generated income.

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In March 2001, S. Bill No. 2157 was signed into law as RA 9009 to take effect on June 30, 2001. As thus amended by RA 9009, Sec. 450 of the LGC of 1991 now provides that [a] municipality x x x may be converted into a component city if it has a [certified] locally generated average annual income x x x of at least [PhP 100 million] for the last two (2) consecutive years based on 2000 constant prices.

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

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

The Senate, however, again failed to approve the joint resolution. During the Senate session held on November 6, 2006, Senator Aquilino Pimentel, Jr. asserted that passing H. Resolution No. 1 would, in net effect, allow a wholesale exemption from the income requirement imposed under RA 9009 on the municipalities. For this reason, he suggested the filing by the House of Representatives of individual bills to pave the way for the municipalities to become cities and then forwarding them to the Senate for proper action.[25]

Heeding the advice, sixteen (16) municipalities filed, through their respective sponsors, individual cityhood bills. Common to all 16 measures was a provision exempting the municipality covered from the PhP 100 million income requirement.

As of June 7, 2007, both Houses of Congress had approved the individual cityhood bills, all of which eventually lapsed into law on various dates. Each cityhood law directs the COMELEC, within thirty (30) days from its approval, to hold a plebiscite to determine whether the voters approve of the conversion.

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As earlier stated, the instant petitions seek to declare the cityhood laws unconstitutional for violation of Sec. 10, Art. X of the Constitution, as well as for violation of the equal-protection clause. The wholesale conversion of municipalities into cities, the petitioners bemoan, will reduce the share of existing cities in the Internal Revenue Allotment (IRA), since more cities will partake of the internal revenue set aside for all cities under Sec. 285 of the LGC of 1991.[26]

Petitioners-in-intervention, LPC members themselves, would later seek leave and be allowed to intervene. Aside from their basic plea to strike down as unconstitutional the cityhood laws in question, petitioners and petitioners-in-intervention collectively pray that an order issue enjoining the COMELEC from conducting plebiscites in the affected areas. An alternative prayer would urge the Court to restrain the poll body from proclaiming the plebiscite results.

On July 24, 2007, the Court en banc resolved to consolidate the petitions and the petitionsin-intervention. On March 11, 2008, it heard the parties in oral arguments.

The Issues

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

After a circumspect reflection, the Court is disposed to reconsider.

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Petitioners threshold posture, characterized by a strained interpretation of the Constitution, if accorded cogency, would veritably curtail and cripple Congress valid exercise of its authority to create political subdivisions. design[27] and as a matter of long-established principle, the power to create political subdivisions or LGUs is essentially legislative in character.[28] But even without any constitutional grant, Congress can, by law, create, divide, merge, or altogether abolish or alter the boundaries of a province, city, or municipality. We said as much in the fairly recent case, Sema v. CIMELEC.[29] The 1987 Constitution, under its Art. X, Sec. 10, nonetheless provides for the creation of LGUs, thus:
By constitutional

Section 10. No province, city, municipality, or barangay shall be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the criteria established in the local government code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected. (Emphasis supplied.)

As may be noted, the afore-quoted provision specifically provides for the creation of political subdivisions in accordance with the criteria established in the local government code, subject to the approval of the voters in the unit concerned. The criteria referred to are the verifiable indicators of viability, i.e., area, population, and income, now set forth in Sec. 450 of the LGC of 1991, as amended by RA 9009. The petitioners would parlay the thesis that these indicators or criteria must be written only in the LGC and not in any other statute. Doubtless, the code they are referring to is the LGC of 1991. Pushing their point, they conclude that the cityhood laws that exempted the respondent LGUs from the income standard spelled out in the amendatory RA 9009 offend the Constitution.

Petitioners posture does not persuade.

The supposedly infringed Art. X, Sec. 10 is not a new constitutional provision. Save for the use of the term barrio in lieu of barangay, may be instead of shall, the change of the phrase unit or units to political unit and the addition of the modifier directly to the word affected, the aforesaid provision is a substantial reproduction of Art. XI, Sec. 3 of the 1973 Constitution, which reads:

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Section 3. No province, city, municipality, or barrio may be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the criteria established in the local government code and subject to approval by a majority of the votes cast in a plebiscite in the unit or units affected. (Emphasis supplied.)

It bears notice, however, that the code similarly referred to in the 1973 and 1987 Constitutions is clearly but a law Congress enacted. This is consistent with the aforementioned plenary power of Congress to create political units. Necessarily, since Congress wields the vast poser of creating political subdivisions, surely it can exercise the lesser authority of requiring a set of criteria, standards, or ascertainable indicators of viability for their creation. Thus, the only conceivable reason why the Constitution employs the clause in accordance with the criteria established in the local government code is to lay stress that it is Congress alone, and no other, which can impose the criteria. The eminent constitutionalist, Fr. Joaquin G. Bernas, S.J., in his treatise on Constitutional Law, specifically on the subject provision, explains:

Prior to 1965, there was a certain lack of clarity with regard to the power to create, divide, merge, dissolve, or change the boundaries of municipal corporations. The extent to which the executive may share in this power was obscured by Cardona v. Municipality of Binangonan.[30] Pelaez v. Auditor General subsequently clarified the Cardonacase when the Supreme Court said that the authority to create municipal corporations is essentially legislative in nature.[31] Pelaez, however, conceded that the power to fix such common boundary, in order to avoid or settle conflicts of jurisdiction between adjoining municipalities, may partake of an administrative nature-involving as it does, the adoption of means and ways to carry into effect the law creating said municipalities.[32] Pelaez was silent about division, merger, and dissolution of municipal corporations. But since division in effect creates a new municipality, and both dissolution and merger in effect abolish a legal creation, it may fairly be inferred that these acts are also legislative in nature.

Section 10 [Art. X of the 1987 Constitution], which is a legacy from the 1973 Constitution, goes further than the doctrine in the Pelaez case. It not only makes creation, division, merger, abolition or substantial alteration of boundaries of provinces, cities, municipalities x x x subject to criteria established in the local government code, thereby declaring these actions properly legislative, but it also makes creation, division, merger, abolition or substantial alteration of boundaries subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected.[33] x x x (Emphasis added.)

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It remains to be observed at this juncture that when the 1987 Constitution speaks of the LGC, the reference cannot be to any specific statute or codification of laws, let alone the LGC of 1991.[34] Be it noted that at the time of the adoption of the 1987 Constitution, Batas Pambansa Blg. (BP) 337, the then LGC, was still in effect. Accordingly, had the framers of the 1987 Constitution intended to isolate the embodiment of the criteria only in the LGC, then they would have actually referred to BP 337. Also, they would then not have provided for the enactment by Congress of a new LGC, as they did in Art. X, Sec. 3[35] of the Constitution.

Consistent with its plenary legislative power on the matter, Congress can, via either a consolidated set of laws or a much simpler, single-subject enactment, impose the said verifiable criteria of viability. These criteria need not be embodied in the local government code, albeit this code is the ideal repository to ensure, as much as possible, the element of uniformity. Congress can even, after making a codification, enact an amendatory law, adding to the existing layers of indicators earlier codified, just as efficaciously as it may reduce the same. In this case, the amendatory RA 9009 upped the already codified income requirement from PhP 20 million to PhP 100 million. At the end of the day, the passage of amendatory laws is no different from the enactment of laws, i.e., the cityhood laws specifically exempting a particular political subdivision from the criteria earlier mentioned. Congress, in enacting the exempting law/s, effectively decreased the already codified indicators.

Petitioners theory that Congress must provide the criteria solely in the LGC and not in any other law strikes the Court as illogical. For if we pursue their contention to its logical conclusion, then RA 9009 embodying the new and increased income criterion would, in a way, also suffer the vice of unconstitutionality. It is startling, however, that petitioners do not question the constitutionality of RA 9009, as they in fact use said law as an argument for the alleged unconstitutionality of the cityhood laws. As it were, Congress, through the medium of the cityhood laws, validly decreased the income criterion vis--vis the respondent LGUs, but without necessarily being unreasonably discriminatory, as shall be discussed shortly, by reverting to the PhP 20 million threshold what it earlier raised to PhP 100 million. The legislative intent not to subject respondent LGUs to the more stringent requirements of RA 9009 finds expression in the following uniform provision of the cityhood laws:
Exemption from Republic Act No. 9009. The City of x x x shall be exempted from the income requirement prescribed under Republic Act No. 9009.

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In any event, petitioners constitutional objection would still be untenable even if we were to assume purely ex hypothesi the correctness of their underlying thesis, viz: that the conversion of a municipality to a city shall be in accordance with, among other things, the income criterion set forth in the LGC of 1991, and in no other; otherwise, the conversion is invalid. We shall explain.

Looking at the circumstances behind the enactment of the laws subject of contention, the Court finds that the LGC-amending RA 9009, no less, intended the LGUs covered by the cityhood laws to be exempt from the PhP 100 million income criterion. In other words, the cityhood laws, which merely carried out the intent of RA 9009, adhered, in the final analysis, to the criteria established in the Local Government Code, pursuant to Sec. 10, Art. X of the 1987 Constitution. We shall now proceed to discuss this exemption angle.[36]

Among the criteria established in the LGC pursuant to Sec.10, Art. X of the 1987 Constitution are those detailed in Sec. 450 of the LGC of 1991 under the heading Requisites for Creation. The section sets the minimum income qualifying bar before a municipal ity or a cluster of barangays may be considered for cityhood. Originally, Sec. 164 of BP 337 imposed an average regular annual income of at least ten million pesos for the last three consecutive years as a minimum income standard for a municipal-to-city conversion. The LGC that BP 337 established was superseded by the LGC of 1991 whose then Sec. 450 provided that [a] municipality or cluster of barangays may be converted into a component city if it has an average annual income, x x x of at least twenty million pesos (P20,000,000.00) for at least two (2) consecutive years based on 1991 constant prices x x x. RA 9009 in turn amended said Sec. 450 by further increasing the income requirement to PhP 100 million, thus:
Section 450. Requisites for Creation. (a) A municipality or a cluster of barangays may be converted into a component city if it has a locally generated average annual income, as certified by the Department of Finance, of at least One Hundred Million Pesos (P100,000,000.00) for the last two (2) consecutive years based on 2000 constant prices, and if it has either of the following requisites:

xxxx

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

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The legislative intent is not at all times accurately reflected in the manner in which the resulting law is couched. Thus, applying a verba legis[37] or strictly literal interpretation of a statute may render it meaningless and lead to inconvenience, an absurd situation or injustice.[38] To obviate this aberration, and bearing in mind the principle that the intent or the spirit of the law is the law itself,[39] resort should be to the rule that the spirit of the law controls its letter.[40]

It is in this respect that the history of the passage of RA 9009 and the logical inferences derivable therefrom assume relevancy in discovering legislative intent.[41]

The rationale behind the enactment of RA 9009 to amend Sec. 450 of the LGC of 1991 can reasonably be deduced from Senator Pimentels sponsorship speech on S. Bill No. 2157. Of particular significance is his statement regarding the basis for the proposed increase from PhP 20 million to PhP 100 million in the income requirement for municipalities wanting to be converted into cities, viz:

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

It is for that reason, Mr. President, that we are proposing among other things, that the financial requirement, which, under the [LGC], is fixed at P20 million, be raised toP100 million to enable a municipality to have the right to be converted into a city, and the P100 million should be sourced from locally generated funds.

Congress to be sure knew, when RA 9009 was being deliberated upon, of the pendency of several bills on cityhood, wherein the applying municipalities were qualified under the then obtaining PhP 20 million-income threshold. These included respondent LGUs. Thus, equally noteworthy is the ensuing excerpts from the floor exchange between then Senate President

LCP vs. COMELEC

Franklin Drilon and Senator Pimentel, the latter stopping short of saying that the income threshold of PhP 100 million under S. Bill No. 2157 would not apply to municipalities that have pending cityhood bills, thus:

THE PRESIDENT. The Chair would like to ask for some clarificatory point. x x x

THE PRESIDENT. This is just on the point of the pending bills in the Senate which propose the conversion of a number of municipalities into cities and which qualify under the present standard.

We would like to know the view of the sponsor: Assuming that this bill becomes a law, will the Chamber apply the standard as proposed in this bill to those bills which are pending for consideration?

SENATOR PIMENTEL, Mr. President, it might not be fair to make this bill x x x [if] approved, retroact to the bills that are pending in the Senate for conversion from municipalities to cities.

THE PRESIDENT. Will there be an appropriate language crafted to reflect that view? Or does it not become a policy of the Chamber, assuming that this bill becomes a law x x x that it will apply to those bills which are already approved by the House under the old version of the [LGC] and are now pending in the Senate? The Chair does not know if we can craft a language which will limit the application to those which are not yet in the Senate. Or is that a policy that the Chamber will adopt?

SENATOR PIMENTEL. Mr. President, personally, I do not think it is necessary to put that provision because what we are saying here will form part of the interpretation of this bill. Besides, if there is no retroactivity clause, I do not think that the bill would have any retroactive effect.

THE PRESIDENT. So the understanding is that those bills which are already pending in the Chamber will not be affected.

SENATOR PIMENTEL. These will not be affected, Mr. President.[42] (Emphasis and underscoring supplied.)

What the foregoing Pimental-Drilon exchange eloquently indicates are the following complementary legislative intentions: (1) the then pending cityhood bills would be outside the

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pale of the minimum income requirement of PhP 100 million that S. Bill No. 2159 proposes; and (2) RA 9009 would not have any retroactive effect insofar as the cityhood bills are concerned.

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

Legislative intent is part and parcel of the law, the controlling factor in interpreting a statute. In construing a statute, the proper course is to start out and follow the true intent of the Legislature and to adopt the sense that best harmonizes with the context and promotes in the fullest manner the policy and objects of the legislature.[43] In fact, any interpretation that runs counter to the legislative intent is unacceptable and invalid.[44] Torres v. Limjap could not have been more precise:

The intent of a Statute is the Law. If a statute is valid, it is to have effect according to the purpose and intent of the lawmaker. The intent is x x x the essence of the law and the primary rule of construction is to ascertain and give effect to that intent. The intention of the legislature in enacting a law is the law itself, and must be enforced when ascertained, although it may not be consistent with the strict letter of the statute. Courts will not follow the letter of a statute when it leads away from the true intent and purpose of the legislature and to conclusions inconsistent with the general purpose of the act. Intent is the spirit which gives life to a legislative enactment. In construing statutes the proper course is to start out and follow the true intent of the legislature x x x.[45] (Emphasis supplied.)

As emphasized at the outset, behind every law lies the presumption of constitutionality.[46] Consequently, to him who would assert the unconstitutionality of a statute belongs the burden of proving otherwise. Laws will only be declared invalid if a conflict with the Constitution is beyond reasonable doubt.[47] Unfortunately for petitioners and petitioners-inintervention, they failed to discharge their heavy burden.

It is contended that the deliberations on the cityhood bills and the covering joint resolution were undertaken in the 11th and/or the 12th Congress. Accordingly, so the argument goes, such deliberations, more particularly those on the unapproved resolution exempting from RA 9009 certain municipalities, are without significance and would not qualify as extrinsic aids in

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construing the cityhood laws that were passed during the 13th Congress, Congress not being a continuing body.

The argument is specious and glosses over the reality that the cityhood billswhich were already being deliberated upon even perhaps before the conception of RA 9009were again being considered during the 13th Congress after being tossed around in the two previous Congresses. And specific reference to the cityhood bills was also made during the deliberations on RA 9009. At the end of the day, it is really immaterial if Congress is not a continuing legislative body. What is important is that the debates, deliberations, and proceedings of Congress and the steps taken in the enactment of the law, in this case the cityhood laws in relation to RA 9009 or vice versa, were part of its legislative history and may be consulted, if appropriate, as aids in the interpretation of the law.[48] And of course the earlier cited Drilon-Pimentel exchange on whether or not the 16 municipalities in question would be covered by RA 9009 is another vital link to the historical chain of the cityhood bills. This and other proceedings on the bills are spread in the Congressional journals, which cannot be conveniently reduced to pure rhetoric without meaning whatsoever, on the simplistic and non-sequitur pretext that Congress is not a continuing body and that unfinished business in either chamber is deemed terminated at the end of the term of Congress.

This brings us to the challenge to the constitutionality of cityhood laws on equal protection grounds.

To the petitioners, the cityhood laws, by granting special treatment to respondent municipalities/LGUs by way of exemption from the standard PhP 100 million minimum income requirement, violate Sec.1, Art. III of the Constitution, which in part provides that no person shall be denied the equal protection of the laws.

Petitioners challenge is not well taken. At its most basic, the equal protection clause proscribes undue favor as well as hostile discrimination. Hence, a law need not operate with equal force on all persons or things to be conformable with Sec. 1, Art. III of the Constitution.

The equal protection guarantee is embraced in the broader and elastic concept of due process, every unfair discrimination being an offense against the requirements of justice and fair

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play. It has nonetheless come as a separate clause in Sec. 1, Art. III of the Constitution to provide for a more specific protection against any undue discrimination or antagonism from government. Arbitrariness in general may be assailed on the basis of the due process clause. But if a particular challenged act partakes of an unwarranted partiality or prejudice, the sharper weapon to cut it down is the equal protection clause.[49] This constitutional protection extends to all persons, natural or artificial, within the territorial jurisdiction. Artificial persons, as the respondent LGUs herein, are, however, entitled to protection only insofar as their property is concerned.[50]

In the proceedings at bar, petitioner LCP and the intervenors cannot plausibly invoke the equal protection clause, precisely because no deprivation of property results by virtue of the enactment of the cityhood laws. The LCPs claim that the IRA of its member-cities will be substantially reduced on account of the conversion into cities of the respondent LGUs would not suffice to bring it within the ambit of the constitutional guarantee. Indeed, it is presumptuous on the part of the LCP member-cities to already stake a claim on the IRA, as if it were their property, as the IRA is yet to be allocated. For the same reason, the municipalities that are not covered by the uniform exemption clause in the cityhood laws cannot validly invoke constitutional protection. For, at this point, the conversion of a municipality into a city will only affect its status as a political unit, but not its property as such.

As a matter of settled legal principle, the fundamental right of equal protection does not require absolute equality. It is enough that all persons or things similarly situated should be treated alike, both as to rights or privileges conferred and responsibilities or obligations imposed. The equal protection clause does not preclude the state from recognizing and acting upon factual differences between individuals and classes. It recognizes that inherent in the right to legislate is the right to classify,[51] necessarily implying that the equality guaranteed is not violated by a legislation based on reasonable classification. Classification, to be reasonable, must (1) rest on substantial distinctions; (2) be germane to the purpose of the law; (3) not be limited to existing conditions only; and (4) apply equally to all members of the same class.[52] The Court finds that all these requisites have been met by the laws challenged as arbitrary and discriminatory under the equal protection clause.

As things stand, the favorable treatment accorded the sixteen (16) municipalities by the cityhood laws rests on substantial distinction. Indeed, respondent LGUs, which are subjected only to the erstwhile PhP 20 million income criterion instead of the stringent income requirement

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prescribed in RA 9009, are substantially different from other municipalities desirous to be cities. Looking back, we note that respondent LGUs had pending cityhood bills before the passage of RA 9009. There lies part of the tipping difference. And years before the enactment of the amendatory RA 9009, respondents LGUs had already met the income criterion exacted for cityhood under the LGC of 1991. Due to extraneous circumstances, however, the bills for their conversion remained unacted upon by Congress. As aptly observed by then Senator, now Manila Mayor, Alfredo Lim in his speech sponsoring H. Joint Resolution No. 1, or the cityhood bills, respondent LGUs saw themselves confronted with the changing of the rules in the middle of the game. Some excerpts of Senator Lims sponsorship speech:

x x x [D]uring the Eleventh Congress, fifty-seven (57) municipalities applied for city status, confident that each has met the requisites for conversion under Section 450 of the [LGC], particularly the income threshold of P20 million. Of the 57 that filed, thirty-two (32) were enacted into law; x x x while the rest twenty-four (24) in all failed to pass through Congress. Shortly before the long recess of Congress in February 2001, to give way to the May elections x x x, Senate Bill No. 2157, which eventually became [RA] 9009, was passed into law, effectively raising the income requirement for creation of cities to a whooping P100 million x x x. Much as the proponents of the 24 cityhood bills then pending struggled to beat the effectivity of the law on June 30, 2001, events that then unfolded were swift and overwhelming that Congress just did not have the time to act on the measures.

Some of these intervening events were x x x the impeachment of President Estrada x x x and the May 2001 elections.

The imposition of a much higher income requirement for the creation of a city x x x was unfair; like any sport changing the rules in the middle of the game.

Undaunted, they came back during the [12th] Congress x x x. They filed House Joint Resolution No. 29 seeking exemption from the higher income requirement of RA 9009. For the second time, [however], time ran out from them.

For many of the municipalities whose Cityhood Bills are now under consideration, this year, at the closing days of the [13th] Congress, marks their ninth year appealing for fairness and justice. x x x

I, for one, share their view that fairness dictates that they should be given a legal remedy by which they could be allowed to prove that they have all the necessary qualifications for city status using the criteria set forth under the [LGC] prior to its amendment by RA 9009. Hence, when House Joint Resolution

LCP vs. COMELEC No. 1 reached the Senate x x x I immediately set the public hearing x x x. On July 25, 2006, I filed Committee Report No. 84 x x x. On September 6, I delivered the sponsorship x x x.

x x x By November 14, the measure had reverted to the period of individual amendments. This was when the then acting majority leader, x x x informed the Body that Senator Pimentel and the proponents of House Joint Resolution No. 1 have agreed to the proposal of the Minority Leader for the House to first approve the individual Cityhood Bills of the qualified municipalities, along with the provision exempting each of them from the higher income requirement of RA 9009. x x x This led to the certification issued by the proponents short-listing fourteen (14) municipalities deemed to be qualified for city-status.

Acting on the suggestion of Senator Pimentel, the proponents lost no time in working for the approval by the House of Representatives of their individual Cityhood Bills, each containing a provision of exemption from the higher income requirement of RA 9009. On the last session day of last year, December 21, the House transmitted to the Senate the Cityhood Bills of twelve out of the 14 pre-qualified municipalities. Your Committee immediately conducted the public hearing x x x.

The whole process I enumerated [span] three Congresses x x x.

In essence, the Cityhood Bills now under consideration will have the same effect as that of House Joint Resolution No. 1 because each of the 12 bills seeks exemption from the higher income requirement of RA 9009. The proponents are invoking the exemption on the basis of justice and fairness.

Each of the 12 municipalities has all the requisites for conversion into a component city based on the old requirements set forth under Section 450 of the [LGC], prior to its amendment by RA 9009, namely: x x x[53] (Emphasis supplied.)

In hindsight, the peculiar conditions, as depicted in Senator Lims speech, which respondent LGUs found themselves in were unsettling. They were qualified cityhood applicants before the enactment of RA 009. Because of events they had absolutely nothing to do with, a spoiler in the form of RA 9009 supervened. Now, then, to impose on them the much higher income requirement after what they have gone through would appear to be indeed unfair, to borrow from Senator Lim. Thus, the imperatives of fairness dictate that they should be given a legal remedy by which they would be allowed to prove that they have all the necessary qualifications for city status, using the criteria set forth under the LGC of 1991 prior to its amendment by RA 9009. Truly, the

LCP vs. COMELEC

peculiar conditions of respondent LGUs, which are actual and real, provide sufficient grounds for legislative classification. To be sure, courts, regardless of doubts they might be entertaining, cannot question the wisdom of the congressional classification, if reasonable, or the motivation underpinning the classification.[54] By the same token, they do not sit to determine the propriety or efficacy of the remedies Congress has specifically chosen to extend. That is its prerogative. The power of the Legislature to make distinctions and classifications among persons is, to reiterate, neither curtailed nor denied by the equal protection clause. A law can be violative of the constitutional limitation only when the classification is without reasonable basis.

The classification is also germane to the purpose of the law. The exemption of respondent LGUs/municipalities from the PhP 100 million income requirement was meant to reduce the inequality occasioned by the passage of the amendatory RA 9009. From another perspective, the exemption was unquestionably designed to insure that fairness and justice would be accorded respondent LGUs. Let it be noted that what were then the cityhood bills covering respondent LGUs were part and parcel of the original 57 conversion bills filed in the 11th Congress, 33 of those became laws before the adjournment of that Congress. The then bills of the challenged cityhood laws were not acted upon due, inter alia, to the impeachment of then President Estrada, the relatedjueteng scandal investigations conducted before, and the EDSA events that followed the aborted impeachment.

While the equal protection guarantee frowns upon the creation of a privileged class without justification, inherent in the equality clause is the exhortation for the Legislature to pass laws promoting equality or reducing existing inequalities. The enactment of the cityhood laws was in a real sense an attempt on the part of Congress to address the inequity dealt the respondent LGUs. These laws positively promoted the equality and eliminated the inequality, doubtless unintended, between respondent municipalities and the thirty-three (33) other municipalities whose cityhood bills were enacted during the 11th Congress.Respondent municipalities and the 33 other municipalities, which had already been elevated to city status, were all found to be qualified under the old Sec. 450 of the LGC of 1991 during the 11th Congress. As such, both respondent LGUs and the 33 other former municipalities are under like circumstances and conditions. There is, thus, no rhyme or reason why an exemption from the PhP 100 million requirement cannot be given to respondent LGUs. Indeed, to deny respondent LGUs/municipalities the same rights and privileges accorded to the 33 other

LCP vs. COMELEC

municipalities when, at the outset they were similarly situated, is tantamount to denying the former the protective mantle of the equal protection clause. In effect, petitioners and petitioners-in-intervention are creating an absurd situation in which an alleged violation of the equal protection clause of the Constitution is remedied by another violation of the same clause. The irony is not lost to the Court.

Then too the non-retroactive effect of RA 9009 is not limited in application only to conditions existing at the time of its enactment. It is intended to apply for all time, as long as the contemplated conditions obtain. To be more precise, the legislative intent underlying the enactment of RA 9009 to exclude would-be-cities from the PhP 100 million criterion would hold sway, as long as the corresponding cityhood bill has been filed before the effectivity of RA 9009 and the concerned municipality qualifies for conversion into a city under the original version of Sec. 450 of the LGC of 1991.

Viewed in its proper light, the common exemption clause in the cityhood laws is an application of the non-retroactive effect of RA 9009 on the cityhood bills. It is not a declaration of certain rights, but a mere declaration of prior qualification and/or compliance with the nonretroactive effect of RA 9009.

Lastly and in connection with the third requisite, the uniform exemption clause would apply to municipalities that had pending cityhood bills before the passage of RA 9009 and were compliant with then Sec. 450 of the LGC of 1991, which prescribed an income requirement of PhP 20 million. It is hard to imagine, however, if there are still municipalities out there belonging in context to the same class as the sixteen (16) respondent LGUs. Municipalities that cannot claim to belong to the same class as the 16 cannot seek refuge in the cityhood laws. The former have to comply with the PhP 100 million income requirement imposed by RA 9009.

A final consideration. The existence of the cities consequent to the approval of the creating, but challenged, cityhood laws in the plebiscites held in the affected LGUs is now an operative fact. New cities appear to have been organized and are functioning accordingly, with new sets of officials and employees. Other resulting events need not be enumerated. The operative fact doctrine provides another reason for upholding the constitutionality of the cityhood laws in question.

LCP vs. COMELEC

In view of the foregoing discussion, the Court ought to abandon as it hereby abandons and sets aside the Decision of November 18, 2008 subject of reconsideration. And by way of summing up the main arguments in support of this disposition, the Court hereby declares the following:

(1) Congress did not intend the increased income requirement in RA 9009 to apply to the cityhood bills which became the cityhood laws in question. In other words, Congress intended the subject cityhood laws to be exempted from the income requirement of PhP 100 million prescribed by RA 9009;

(2) The cityhood laws merely carry out the intent of RA 9009, now Sec. 450 of the LGC of 1991, to exempt respondent LGUs from the PhP 100 million income requirement;

(3) The deliberations of the 11th or 12th Congress on unapproved bills or resolutions are extrinsic aids in interpreting a law passed in the 13th Congress. It is really immaterial if Congress is not a continuing body. The hearings and deliberations during the 11th and 12th Congress may still be used as extrinsic reference inasmuch as the same cityhood bills which were filed before the passage of RA 9009 were being considered during the 13th Congress. Courts may fall back on the history of a law, as here, as extrinsic aid of statutory construction if the literal application of the law results in absurdity or injustice.

(4) The exemption accorded the 16 municipalities is based on the fact that each had pending cityhood bills long before the enactment of RA 9009 that substantially distinguish them from other municipalities aiming for cityhood. On top of this, each of the 16 also met the PhP 20 million income level exacted under the original Sec. 450 of the 1991 LGC.

And to stress the obvious, the cityhood laws are presumed constitutional. As we see it, petitioners have not overturned the presumptive constitutionality of the laws in question.

LCP vs. COMELEC

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.

LCP vs. COMELEC

EN BANC LEAGUE OF CITIES OF THE G.R. No. 176951 PHILIPPINES (LCP) represented by LCP National President JERRY P. TREAS, CITY OF ILOILO represented by MAYOR JERRY P. TREAS, CITY OF CALBAYOG represented by MAYOR MEL SENEN S. SARMIENTO, and JERRY P. TREAS in his personal capacity as taxpayer, Petitioners, - 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,

LCP vs. COMELEC

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

LCP vs. COMELEC

x-----------------------------x LEAGUE OF CITIES OF THE G.R. No. 177499 PHILIPPINES (LCP) represented by LCP National President JERRY P. TREAS, CITY OF ILOILO represented by MAYOR JERRY P. TREAS, CITY OF CALBAYOG represented by MAYOR MEL SENEN S. SARMIENTO, and JERRY P. TREAS in his personal capacity as taxpayer, Petitioners, - 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,

LCP vs. COMELEC

PROVINCE OF DAVAO ORIENTAL; and MUNICIPALITY OF GUIHULNGAN, PROVINCE OF NEGROS ORIENTAL, Respondents. CITY OF TARLAC, CITY OF SANTIAGO, CITY OF IRIGA, CITY OF LIGAO, CITY OF LEGAZPI, CITY OF TAGAYTAY, CITY OF SURIGAO, CITY OF BAYAWAN, CITY OF SILAY, CITY OF GENERAL SANTOS, CITY OF ZAMBOANGA, CITY OF GINGOOG, CITY OF CAUAYAN, CITY OF PAGADIAN, CITY OF SAN CARLOS, CITY OF SAN FERNANDO, CITY OF TACURONG, CITY OF TANGUB, CITY OF OROQUIETA, CITY OF URDANETA, CITY OF VICTORIAS, CITY OF CALAPAN, CITY OF HIMAMAYLAN, CITY OF BATANGAS, CITY OF BAIS, CITY OF CADIZ, and CITY OF TAGUM, Petitioners-In-Intervention.

LCP vs. COMELEC

x - - - - - - - - - - - - - - - - - - - - - - - - - - --x LEAGUE OF CITIES OF THE G.R. No. 178056 PHILIPPINES (LCP) represented by LCP National President Present: JERRY P. TREAS, CITY OF ILOILO represented by CORONA, C.J., MAYOR JERRY P. TREAS, CARPIO, CITY OF CALBAYOG CARPIO MORALES, represented by MAYOR VELASCO, JR., MEL SENEN S. SARMIENTO, NACHURA, and JERRY P. TREAS in his LEONARDO-DE CASTRO, personal capacity as taxpayer, BRION, Petitioners, PERALTA, BERSAMIN, DEL CASTILLO, - versus - ABAD, VILLARAMA, JR., PEREZ, MENDOZA, and COMMISSION ON ELECTIONS; SERENO, JJ. MUNICIPALITY OF CABADBARAN, PROVINCE OF AGUSAN DEL NORTE; MUNICIPALITY OF CARCAR, PROVINCE OF

LCP vs. COMELEC

CEBU; and MUNICIPALITY OF EL SALVADOR, MISAMIS ORIENTAL, Respondents. CITY OF TARLAC, CITY OF SANTIAGO, CITY OF IRIGA, CITY OF LIGAO, CITY OF LEGAZPI, CITY OF TAGAYTAY, CITY OF SURIGAO, CITY OF BAYAWAN, CITY OF SILAY, CITY OF GENERAL SANTOS, CITY OF ZAMBOANGA, CITY OF GINGOOG, CITY OF CAUAYAN, CITY OF PAGADIAN, CITY OF SAN CARLOS, CITY OF SAN FERNANDO, CITY OF TACURONG, CITY OF TANGUB, CITY OF OROQUIETA, CITY OF URDANETA, CITY OF VICTORIAS, CITY OF CALAPAN, CITY OF HIMAMAYLAN, CITY OF BATANGAS, CITY OF BAIS, CITY OF CADIZ, and Promulgated: CITY OF TAGUM, Petitioners-In-Intervention. August 24, 2010

LCP vs. COMELEC

x--------------------------------------------------x RESOLUTION CARPIO, J.: For resolution are (1) the ad cautelam motion for reconsideration and (2) motion to annul the Decision of 21 December 2009 filed by petitioners League of Cities of the Philippines, et al. and (3) the ad cautelam motion for reconsideration filed by petitioners-in-intervention Batangas City, Santiago City, Legazpi City, Iriga City, Cadiz City, and Oroquieta City. On 18 November 2008, the Supreme Court En Banc, by a majority vote, struck down the subject 16 Cityhood Laws for violating Section 10, Article X of the 1987 Constitution and the equal protection clause. On 31 March 2009, the Supreme Court En Banc, again by a majority vote, denied the respondents first motion for reconsideration. On 28 April 2009, the Supreme Court En Banc, by a split vote, denied the respondents second motion for reconsideration. Accordingly, the 18 November 2008 Decision became final and executory and was recorded, in due course, in the Book of Entries of Judgments on 21 May 2009. However, after the finality of the 18 November 2008 Decision and without any exceptional and compelling reason, the Court En Banc unprecedentedly reversed the 18 November 2008 Decision by upholding the constitutionality of the Cityhood Laws in the Decision of 21 December 2009. Upon reexamination, the Court finds the motions for reconsideration meritorious and accordingly reinstates the 18 November 2008 Decision declaring the 16 Cityhood Laws unconstitutional. A. Violation of Section 10, Article X of the Constitution Section 10, Article X of the 1987 Constitution provides: No province, city, municipality, or barangay shall be created, divided, merged, abolished or its boundary substantially altered, except in accordance with the criteria established in the local government code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected. (Emphasis supplied) The Constitution is clear. The creation of local government units must follow the criteria established in the Local Government Code and not in any other law. There is only one Local Government Code.1 The Constitution requires Congress to stipulate in the Local Government Code all the criteria necessary for the creation of a city, including the conversion of a municipality into a city. Congress cannot write such criteria in any other law, like the Cityhood Laws. The clear intent of the Constitution is to insure that the creation of cities and other political units must follow the same uniform, non-discriminatory criteria found solely in the Local Government Code. Any derogation or deviation from the criteria prescribed in the Local Government Code violates Section 10, Article X of the Constitution.

LCP vs. COMELEC

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

LCP vs. COMELEC

Under the minoritys novel theory, an unconstitutional law, if already implemented prior to its declaration of unconstitutionality by the Court, can no longer be revoked and its implementation must be continued despite being unconstitutional. This view will open the floodgates to the wanton enactment of unconstitutional laws and a mad rush for their immediate implementation before the Court can declare them unconstitutional. This view is an open invitation to serially violate the Constitution, and be quick about it, lest the violation be stopped by the Court. The operative fact doctrine is a rule of equity. As such, it must be applied as an exception to the general rule that an unconstitutional law produces no effects. It can never be invoked to validate as constitutional an unconstitutional act. In Planters Products, Inc. v. Fertiphil Corporation,3 the Court stated: The general rule is that an unconstitutional law is void. It produces no rights, imposes no duties and affords no protection. It has no legal effect. It is, in legal contemplation, inoperative as if it has not been passed. Being void, Fertiphil is not required to pay the levy. All levies paid should be refunded in accordance with the general civil code principle against unjust enrichment. The general rule is supported by Article 7 of the Civil Code, which provides: ART. 7. Laws are repealed only by subsequent ones, and their violation or non-observance shall not be excused by disuse or custom or practice to the contrary. When the courts declare a law to be inconsistent with the Constitution, the former shall be void and the latter shall govern. The doctrine of operative fact, as an exception to the general rule, only applies as a matter of equity and fair play. It nullifies the effects of an unconstitutional law by recognizing that the existence of a statute prior to a determination of unconstitutionality is an operative fact and may have consequences which cannot always be ignored. The past cannot always be erased by a new judicial declaration. The doctrine is applicable when a declaration of unconstitutionality will impose an undue burden on those who have relied on the invalid law. Thus, it was applied to a criminal case when a declaration of unconstitutionality would put the accused in double jeopardy or would put in limbo the acts done by a municipality in reliance upon a law creating it. (Emphasis supplied) The operative fact doctrine never validates or constitutionalizes an unconstitutional law. Under the operative fact doctrine, the unconstitutional law remains unconstitutional, but the effects of the unconstitutional law, prior to its judicial declaration of nullity, may be left undisturbed as a matter of equity and fair play. In short, the operative fact doctrine affects or modifies only the effects of the unconstitutional law, not the unconstitutional law itself. Thus, applying the operative fact doctrine to the present case, the Cityhood Laws remain unconstitutional because they violate Section 10, Article X of the Constitution. However, the effects of the implementation of the Cityhood Laws prior to the declaration of their nullity, such as the payment of salaries and supplies by the "new cities" or their issuance of licenses or execution of

LCP vs. COMELEC

contracts, may be recognized as valid and effective. This does not mean that the Cityhood Laws are valid for they remain void. Only the effects of the implementation of these unconstitutional laws are left undisturbed as a matter of equity and fair play to innocent people who may have relied on the presumed validity of the Cityhood Laws prior to the Courts declaration of their unconstitutionality. C. Equal Protection Clause As the Court held in the 18 November 2008 Decision, there is no substantial distinction between municipalities with pending cityhood bills in the 11th Congress and municipalities that did not have pending bills. The mere pendency of a cityhood bill in the 11th Congress is not a material difference to distinguish one municipality from another for the purpose of the income requirement. The pendency of a cityhood bill in the 11th Congress does not affect or determine the level of income of a municipality. Municipalities with pending cityhood bills in the 11th Congress might even have lower annual income than municipalities that did not have pending cityhood bills. In short, the classification criterion mere pendency of a cityhood bill in the 11th Congress is not rationally related to the purpose of the law which is to prevent fiscally non-viable municipalities from converting into cities. Moreover, the fact of pendency of a cityhood bill in the 11th Congress limits the exemption to a specific condition existing at the time of passage of RA 9009. That specific condition will never happen again. This violates the requirement that a valid classification must not be limited to existing conditions only. In fact, the minority concedes that "the conditions (pendency of the cityhood bills) adverted to can no longer be repeated." Further, the exemption provision in the Cityhood Laws gives the 16 municipalities a unique advantage based on an arbitrary date the filing of their cityhood bills before the end of the 11th Congress as against all other municipalities that want to convert into cities after the effectivity of RA 9009. In addition, limiting the exemption only to the 16 municipalities violates the requirement that the classification must apply to all similarly situated. Municipalities with the same income as the 16 respondent municipalities cannot convert into cities, while the 16 respondent municipalities can. Clearly, as worded, the exemption provision found in the Cityhood Laws, even if it were written in Section 450 of the Local Government Code, would still be unconstitutional for violation of the equal protection clause. D. Tie-Vote on a Motion for Reconsideration Section 7, Rule 56 of the Rules of Court provides: SEC. 7. Procedure if opinion is equally divided. Where the court en banc is equally divided in opinion, or the necessary majority cannot be had, the case shall again be deliberated on, and if after such deliberation no decision is reached, the original action commenced in the court shall be dismissed; in appealed cases, the judgment or order appealed from shall stand affirmed; and on all incidental matters, the petition or motion shall be denied. (Emphasis supplied) The En Banc Resolution of 26 January 1999 in A.M. No. 99-1-09-SC, reads:

LCP vs. COMELEC

A MOTION FOR THE CONSIDERATION OF A DECISION OR RESOLUTION OF THE COURT EN BANC OR OF A DIVISION MAY BE GRANTED UPON A VOTE OF A MAJORITY OF THE MEMBERS OF THE EN BANC OR OF A DIVISION, AS THE CASE MAY BE, WHO ACTUALLY TOOK PART IN THE DELIBERATION OF THE MOTION. IF THE VOTING RESULTS IN A TIE, THE MOTION FOR RECONSIDERATION IS DEEMED DENIED. (Emphasis supplied) The clear and simple language of the clarificatory en banc Resolution requires no further explanation. If the voting of the Court en banc results in a tie, the motion for reconsideration is deemed denied. The Courts prior majority action on the main decision stands affirmed.4 This clarificatory Resolution applies to all cases heard by the Court en banc, which includes not only cases involving the constitutionality of a law, but also, as expressly stated in Section 4(2), Article VIII of the Constitution, "all other cases which under the Rules of Court are required to be heard en banc." The 6-6 tie-vote by the Court en banc on the second motion for reconsideration necessarily resulted in the denial of the second motion for reconsideration. Since the Court was evenly divided, there could be no reversal of the 18 November 2008 Decision, for a tie-vote cannot result in any court order or directive.5 The judgment stands in full force.6 Undeniably, the 6-6 tie-vote did not overrule the prior majority en banc Decision of 18 November 2008, as well as the prior majority en banc Resolution of 31 March 2009 denying reconsideration. The tie-vote on the second motion for reconsideration is not the same as a tie-vote on the main decision where there is no prior decision. Here, the tie-vote plainly signifies that there is no majority to overturn the prior 18 November 2008 Decision and 31 March 2009 Resolution, and thus the second motion for reconsideration must be denied. Further, the tie-vote on the second motion for reconsideration did not mean that the present cases were left undecided because there remain the Decision of 18 November 2008 and the Resolution of 31 March 2009 where a majority of the Court en banc concurred in declaring the unconstitutionality of the sixteen Cityhood Laws. In short, the 18 November 2008 Decision and the 31 March 2009 Resolution, which were both reached with the concurrence of a majority of the Court en banc, are not reconsidered but stand affirmed.7 These prior majority actions of the Court en banc can only be overruled by a new majority vote, not a tie-vote because a tie-vote cannot overrule a prior affirmative action. The denial, by a split vote, of the second motion for reconsideration inevitably rendered the 18 November 2008 Decision final. In fact, in its Resolution of 28 April 2009, denying the second motion for reconsideration, the Court en banc reiterated that no further pleadings shall be entertained and stated that entry of judgment be made in due course. The dissenting opinion stated that "a deadlocked vote of six is not a majority and a non-majority does not constitute a rule with precedential value."8

LCP vs. COMELEC

Indeed, a tie-vote is a non-majority a non-majority which cannot overrule a prior affirmative action, that is the 18 November 2008 Decision striking down the Cityhood Laws. In short, the 18 November 2008 Decision stands affirmed. And assuming a non-majority lacks any precedential value, the 18 November 2008 Decision, which was unreversed as a result of the tie-vote on the respondents second motion for reconsideration, nevertheless remains binding on the parties.9 Conclusion Section 10, Article X of the Constitution expressly provides that "no x x x city shall be created x x x except in accordance with the criteria established in the local government code."This provision can only be interpreted in one way, that is, all the criteria for the creation of cities must be embodied exclusively in the Local Government Code. In this case, the Cityhood Laws, which are unmistakably laws other than the Local Government Code, provided an exemption from the increased income requirement for the creation of cities under Section 450 of the Local Government Code, as amended by RA 9009. Clearly, the Cityhood Laws contravene the letter and intent of Section 10, Article X of the Constitution. Adhering to the explicit prohibition in Section 10, Article X of the Constitution does not cripple Congress power to make laws. In fact, Congress is not prohibited from amending the Local Government Code itself, as what Congress did by enacting RA 9009. Indisputably, the act of amending laws comprises an integral part of the Legislatures law-making power. The unconstitutionality of the Cityhood Laws lies in the fact that Congress provided an exemption contrary to the express language of the Constitution that "[n]o x x x city x x x shall be created except in accordance with the criteria established in the local government code." In other words, Congress exceeded and abused its law-making power, rendering the challenged Cityhood Laws void for being violative of the Constitution. WHEREFORE, we GRANT the motions for reconsideration of the 21 December 2009 Decision and REINSTATE the 18 November 2008 Decision declaring UNCONSTITUTIONAL the Cityhood Laws, namely: Republic Act Nos. 9389, 9390, 9391, 9392, 9393, 9394, 9398, 9404, 9405, 9407, 9408, 9409, 9434, 9435, 9436, and 9491. We NOTE petitioners motion to annul the Decision of 21 December 2009. SO ORDERED.

LCP vs. COMELEC

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 176951 November 18, 2008

LEAGUE OF CITIES OF THE PHILIPPINES (LCP) represented by LCP National President JERRY P. TREAS, CITY OF ILOILO represented by MAYOR JERRY P. TREAS, CITY OF CALBAYOG represented by MAYOR MEL SENEN S. SARMIENTO, and JERRY P. TREAS in his personal capacity as taxpayer, petitioners, vs. COMMISSION ON ELECTIONS; MUNICIPALITY OF BAYBAY, PROVINCE OF LEYTE; MUNICIPALITY OF BOGO, PROVINCE OF CEBU; MUNICIPALITY OF CATBALOGAN, PROVINCE OF WESTERN SAMAR; MUNICIPALITY OF TANDAG, PROVINCE OF SURIGAO DEL SUR; MUNICIPALITY OF BORONGAN, PROVINCE OF EASTERN SAMAR; and MUNICIPALITY OF TAYABAS, PROVINCE OF QUEZON, respondents. CITY OF TARLAC, CITY OF SANTIAGO, CITY OF IRIGA, CITY OF LIGAO, CITY OF LEGAZPI, CITY OF TAGAYTAY, CITY OF SURIGAO, CITY OF BAYAWAN, CITY OF SILAY, CITY OF GENERAL SANTOS, CITY OF ZAMBOANGA, CITY OF GINGOOG, CITY OF CAUAYAN, CITY OF PAGADIAN, CITY OF SAN CARLOS, CITY OF SAN FERNANDO, CITY OF TACURONG, CITY OF TANGUB, CITY OF OROQUIETA, CITY OF URDANETA, CITY OF VICTORIAS, CITY OF CALAPAN, CITY OF HIMAMAYLAN, CITY OF BATANGAS, CITY OF BAIS, CITY OF CADIZ, and CITY OF TAGUM,petitioners-inintervention. x-----------------------------x G.R. No. 177499 November 18, 2008

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

LCP vs. COMELEC

FERNANDO, CITY OF TACURONG, CITY OF TANGUB, CITY OF OROQUIETA, CITY OF URDANETA, CITY OF VICTORIAS, CITY OF CALAPAN, CITY OF HIMAMAYLAN, CITY OF BATANGAS, CITY OF BAIS, CITY OF CADIZ, and CITY OF TAGUM,petitioners-inintervention. x - - - - - - - - - - - - - - - - - - - - - - - - - - --x G.R. No. 178056 November 18, 2008

LEAGUE OF CITIES OF THE PHILIPPINES (LCP) represented by LCP National President JERRY P. TREAS, CITY OF ILOILO represented by MAYOR JERRY P. TREAS, CITY OF CALBAYOG represented by MAYOR MEL SENEN S. SARMIENTO, and JERRY P. TREAS in his personal capacity as taxpayer, petitioners vs. COMMISSION ON ELECTIONS; MUNICIPALITY OF CABADBARAN, PROVINCE OF AGUSAN DEL NORTE; MUNICIPALITY OF CARCAR, PROVINCE OF CEBU; and MUNICIPALITY OF EL SALVADOR, MISAMIS ORIENTAL, respondents. CITY OF TARLAC, CITY OF SANTIAGO, CITY OF IRIGA, CITY OF LIGAO, CITY OF LEGAZPI, CITY OF TAGAYTAY, CITY OF SURIGAO, CITY OF BAYAWAN, CITY OF SILAY, CITY OF GENERAL SANTOS, CITY OF ZAMBOANGA, CITY OF GINGOOG, CITY OF CAUAYAN, CITY OF PAGADIAN, CITY OF SAN CARLOS, CITY OF SAN FERNANDO, CITY OF TACURONG, CITY OF TANGUB, CITY OF OROQUIETA, CITY OF URDANETA, CITY OF VICTORIAS, CITY OF CALAPAN, CITY OF HIMAMAYLAN, CITY OF BATANGAS, CITY OF BAIS, CITY OF CADIZ, and CITY OF TAGUM,petitioners-inintervention. DECISION CARPIO, J.: The Case These are consolidated petitions for prohibition1 with prayer for the issuance of a writ of preliminary injunction or temporary restraining order filed by the League of Cities of the Philippines, City of Iloilo, City of Calbayog, and Jerry P. Treas2 assailing the constitutionality of the subject Cityhood Laws and enjoining the Commission on Elections (COMELEC) and respondent municipalities from conducting plebiscites pursuant to the Cityhood Laws. The Facts During the 11th Congress,3 Congress enacted into law 33 bills converting 33 municipalities into cities. However, Congress did not act on bills converting 24 other municipalities into cities. During the 12th Congress,4 Congress enacted into law Republic Act No. 9009 (RA 9009),5 which took effect on 30 June 2001. RA 9009 amended Section 450 of the Local

LCP vs. COMELEC

Government Code by increasing the annual income requirement for conversion of a municipality into a city from P20 million to P100 million. The rationale for the amendment was to restrain, in the words of Senator Aquilino Pimentel, "the mad rush" of municipalities to convert into cities solely to secure a larger share in the Internal Revenue Allotment despite the fact that they are incapable of fiscal independence.6 After the effectivity of RA 9009, the House of Representatives of the 12th Congress7 adopted Joint Resolution No. 29,8 which sought to exempt from the P100 million income requirement in RA 9009 the 24 municipalities whose cityhood bills were not approved in the 11th Congress. However, the 12th Congress ended without the Senate approving Joint Resolution No. 29. During the 13th Congress,9 the House of Representatives re-adopted Joint Resolution No. 29 as Joint Resolution No. 1 and forwarded it to the Senate for approval. However, the Senate again failed to approve the Joint Resolution. Following the advice of Senator Aquilino Pimentel, 16 municipalities filed, through their respective sponsors, individual cityhood bills. The 16 cityhood bills contained a common provision exempting all the 16 municipalities from the P100 million income requirement in RA 9009. On 22 December 2006, the House of Representatives approved the cityhood bills. The Senate also approved the cityhood bills in February 2007, except that of Naga, Cebu which was passed on 7 June 2007. The cityhood bills lapsed into law (Cityhood Laws10) on various dates from March to July 2007 without the President's signature.11 The Cityhood Laws direct the COMELEC to hold plebiscites to determine whether the voters in each respondent municipality approve of the conversion of their municipality into a city. Petitioners filed the present petitions to declare the Cityhood Laws unconstitutional for violation of Section 10, Article X of the Constitution, as well as for violation of the equal protection clause.12Petitioners also lament that the wholesale conversion of municipalities into cities will reduce the share of existing cities in the Internal Revenue Allotment because more cities will share the same amount of internal revenue set aside for all cities under Section 285 of the Local Government Code.13 The Issues The petitions raise the following fundamental issues: 1. Whether the Cityhood Laws violate Section 10, Article X of the Constitution; and 2. Whether the Cityhood Laws violate the equal protection clause. The Ruling of the Court We grant the petitions.

LCP vs. COMELEC

The Cityhood Laws violate Sections 6 and 10, Article X of the Constitution, and are thus unconstitutional. First, applying the P100 million income requirement in RA 9009 to the present case is a prospective, not a retroactive application, because RA 9009 took effect in 2001 while the cityhood bills became law more than five years later. Second, the Constitution requires that Congress shall prescribe all the criteria for the creation of a city in the Local Government Code and not in any other law, including the Cityhood Laws. Third, the Cityhood Laws violate Section 6, Article X of the Constitution because they prevent a fair and just distribution of the national taxes to local government units. Fourth, the criteria prescribed in Section 450 of the Local Government Code, as amended by RA 9009, for converting a municipality into a city are clear, plain and unambiguous, needing no resort to any statutory construction. Fifth, the intent of members of the 11th Congress to exempt certain municipalities from the coverage of RA 9009 remained an intent and was never written into Section 450 of the Local Government Code. Sixth, the deliberations of the 11th or 12th Congress on unapproved bills or resolutions are not extrinsic aids in interpreting a law passed in the 13th Congress. Seventh, even if the exemption in the Cityhood Laws were written in Section 450 of the Local Government Code, the exemption would still be unconstitutional for violation of the equal protection clause. Preliminary Matters Prohibition is the proper action for testing the constitutionality of laws administered by the COMELEC,14like the Cityhood Laws, which direct the COMELEC to hold plebiscites in implementation of the Cityhood Laws. Petitioner League of Cities of the Philippines has legal standing because Section 499 of the Local Government Code tasks the League with the "primary purpose of ventilating, articulating and crystallizing issues affecting city government administration and securing, through proper and legal means, solutions thereto."15 Petitioners-in-intervention,16 which are existing cities, have legal standing because their Internal Revenue Allotment will be reduced if the Cityhood Laws are declared constitutional. Mayor Jerry P. Treas has legal standing because as Mayor of Iloilo City and as a taxpayer he has sufficient interest to prevent the unlawful expenditure of public funds, like the release of more Internal Revenue Allotment to political units than what the law allows. Applying RA 9009 is a Prospective Application of the Law

LCP vs. COMELEC

RA 9009 became effective on 30 June 2001 during the 11th Congress. This law specifically amended Section 450 of the Local Government Code, which now provides: Section 450. Requisites for Creation. (a) A municipality or a cluster of barangays may be converted into a component city if it has a locally generated average annual income, as certified by the Department of Finance, of at least One hundred million pesos (P100,000,000.00) for the last two (2) consecutive years based on 2000 constant prices, and if it has either of the following requisites: (i) a contiguous territory of at least one hundred (100) square kilometers, as certified by the Land Management Bureau; or (ii) a population of not less than one hundred fifty thousand (150,000) inhabitants, as certified by the National Statistics Office. The creation thereof shall not reduce the land area, population and income of the original unit or units at the time of said creation to less than the minimum requirements prescribed herein. (b) The territorial jurisdiction of a newly-created city shall be properly identified by metes and bounds. The requirement on land area shall not apply where the city proposed to be created is composed of one (1) or more islands. The territory need not be contiguous if it comprises two (2) or more islands. (c) The average annual income shall include the income accruing to the general fund, exclusive of special funds, transfers, and non-recurring income. (Emphasis supplied) Thus, RA 9009 increased the income requirement for conversion of a municipality into a city from P20 million to P100 million. Section 450 of the Local Government Code, as amended by RA 9009, does not provide any exemption from the increased income requirement. Prior to the enactment of RA 9009, a total of 57 municipalities had cityhood bills pending in Congress. Thirty-three cityhood bills became law before the enactment of RA 9009. Congress did not act on 24 cityhood bills during the 11th Congress. During the 12th Congress, the House of Representatives adopted Joint Resolution No. 29, exempting from the income requirement of P100 million in RA 9009 the 24 municipalities whose cityhood bills were not acted upon during the 11th Congress. This Resolution reached the Senate. However, the 12thCongress adjourned without the Senate approving Joint Resolution No. 29. During the 13th Congress, 16 of the 24 municipalities mentioned in the unapproved Joint Resolution No. 29 filed between November and December of 2006, through their respective sponsors in Congress, individual cityhood bills containing a common provision, as follows:

LCP vs. COMELEC

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

LCP vs. COMELEC

In enacting RA 9009, Congress did not grant any exemption to respondent municipalities, even though their cityhood bills were pending in Congress when Congress passed RA 9009. The Cityhood Laws, all enacted after the effectivity of RA 9009, explicitly exempt respondent municipalities from the increased income requirement in Section 450 of the Local Government Code, as amended by RA 9009. Such exemption clearly violates Section 10, Article X of the Constitution and is thus patently unconstitutional. To be valid, such exemption must be written in the Local Government Code and not in any other law, including the Cityhood Laws. Cityhood Laws Violate Section 6, Article X of the Constitution Uniform and non-discriminatory criteria as prescribed in the Local Government Code are essential to implement a fair and equitable distribution of national taxes to all local government units. Section 6, Article X of the Constitution provides: Local government units shall have a just share, as determined by law, in the national taxes which shall be automatically released to them. (Emphasis supplied) If the criteria in creating local government units are not uniform and discriminatory, there can be no fair and just distribution of the national taxes to local government units. A city with an annual income of only P20 million, all other criteria being equal, should not receive the same share in national taxes as a city with an annual income of P100 million or more. The criteria of land area, population and income, as prescribed in Section 450 of the Local Government Code, must be strictly followed because such criteria, prescribed by law, are material in determining the "just share" of local government units in national taxes. Since the Cityhood Laws do not follow the income criterion in Section 450 of the Local Government Code, they prevent the fair and just distribution of the Internal Revenue Allotment in violation of Section 6, Article X of the Constitution. Section 450 of the Local Government Code is Clear, Plain and Unambiguous There can be no resort to extrinsic aids like deliberations of Congress if the language of the law is plain, clear and unambiguous. Courts determine the intent of the law from the literal language of the law, within the law's four corners.19 If the language of the law is plain, clear and unambiguous, courts simply apply the law according to its express terms. If a literal application of the law results in absurdity, impossibility or injustice, then courts may resort to extrinsic aids of statutory construction like the legislative history of the law.20 Congress, in enacting RA 9009 to amend Section 450 of the Local Government Code, did not provide any exemption from the increased income requirement, not even to respondent municipalities whose cityhood bills were then pending when Congress passed RA 9009. Section 450 of the Local Government Code, as amended by RA 9009, contains no exemption whatsoever. Since the law is clear, plain and unambiguous that any municipality

LCP vs. COMELEC

desiring to convert into a city must meet the increased income requirement, there is no reason to go beyond the letter of the law in applying Section 450 of the Local Government Code, as amended by RA 9009. The 11th Congress' Intent was not Written into the Local Government Code True, members of Congress discussed exempting respondent municipalities from RA 9009, as shown by the various deliberations on the matter during the 11th Congress. However, Congress did not write this intended exemption into law. Congress could have easily included such exemption in RA 9009 but Congress did not. This is fatal to the cause of respondent municipalities because such exemption must appear in RA 9009 as an amendment to Section 450 of the Local Government Code. The Constitution requires that the criteria for the conversion of a municipality into a city, including any exemption from such criteria, must all be written in the Local Government Code. Congress cannot prescribe such criteria or exemption from such criteria in any other law. In short, Congress cannot create a city through a law that does not comply with the criteria or exemption found in the Local Government Code. Section 10 of Article X is similar to Section 16, Article XII of the Constitution prohibiting Congress from creating private corporations except by a general law. Section 16 of Article XII provides: The Congress shall not, except by general law, provide for the formation, organization, or regulation of private corporations. Government-owned or controlled corporations may be created or established by special charters in the interest of the common good and subject to the test of economic viability. (Emphasis supplied) Thus, Congress must prescribe all the criteria for the "formation, organization, or regulation" of private corporations in a general law applicable to all without discrimination.21 Congress cannot create a private corporation through a special law or charter. Deliberations of the 11th Congress on Unapproved Bills Inapplicable Congress is not a continuing body.22 The unapproved cityhood bills filed during the 11th Congress became mere scraps of paper upon the adjournment of the 11th Congress. All the hearings and deliberations conducted during the 11th Congress on unapproved bills also became worthless upon the adjournment of the 11th Congress. These hearings and deliberations cannot be used to interpret bills enacted into law in the 13th or subsequent Congresses. The members and officers of each Congress are different. All unapproved bills filed in one Congress become functus officio upon adjournment of that Congress and must be re-filed anew in order to be taken up in the next Congress. When their respective authors re-filed the

LCP vs. COMELEC

cityhood bills in 2006 during the 13th Congress, the bills had to start from square one again, going through the legislative mill just like bills taken up for the first time, from the filing to the approval. Section 123, Rule XLIV of the Rules of the Senate, on Unfinished Business, provides: Sec. 123. x x x All pending matters and proceedings shall terminate upon the expiration of one (1) Congress, but may be taken by the succeeding Congress as if presented for the first time. (Emphasis supplied) Similarly, Section 78 of the Rules of the House of Representatives, on Unfinished Business, states: Section 78. Calendar of Business. The Calendar of Business shall consist of the following: a. Unfinished Business. This is business being considered by the House at the time of its last adjournment. Its consideration shall be resumed until it is disposed of. The Unfinished Business at the end of a session shall be resumed at the commencement of the next session as if no adjournment has taken place. At the end of the term of a Congress, all Unfinished Business are deemed terminated. (Emphasis supplied) Thus, the deliberations during the 11th Congress on the unapproved cityhood bills, as well as the deliberations during the 12th and 13th Congresses on the unapproved resolution exempting from RA 9009 certain municipalities, have no legal significance. They do not qualify as extrinsic aids in construing laws passed by subsequent Congresses. Applicability of Equal Protection Clause If Section 450 of the Local Government Code, as amended by RA 9009, contained an exemption to theP100 million annual income requirement, the criteria for such exemption could be scrutinized for possible violation of the equal protection clause. Thus, the criteria for the exemption, if found in the Local Government Code, could be assailed on the ground of absence of a valid classification. However, Section 450 of the Local Government Code, as amended by RA 9009, does not contain any exemption. The exemption is contained in the Cityhood Laws, which are unconstitutional because such exemption must be prescribed in the Local Government Code as mandated in Section 10, Article X of the Constitution. Even if the exemption provision in the Cityhood Laws were written in Section 450 of the Local Government Code, as amended by RA 9009, such exemption would still be unconstitutional for violation of the equal protection clause. The exemption provision merely states, "Exemption from Republic Act No. 9009 The City of x x x shall be exempted from the income requirement prescribed under Republic Act No. 9009." This one

LCP vs. COMELEC

sentence exemption provision contains no classification standards or guidelines differentiating the exempted municipalities from those that are not exempted. Even if we take into account the deliberations in the 11th Congress that municipalities with pending cityhood bills should be exempt from the P100 million income requirement, there is still no valid classification to satisfy the equal protection clause. The exemption will be based solely on the fact that the 16 municipalities had cityhood bills pending in the 11th Congress when RA 9009 was enacted. This is not a valid classification between those entitled and those not entitled to exemption from the P100 million income requirement. To be valid, the classification in the present case must be based on substantial distinctions, rationally related to a legitimate government objective which is the purpose of the law,23 not limited to existing conditions only, and applicable to all similarly situated. Thus, this Court has ruled: The equal protection clause of the 1987 Constitution permits a valid classification under the following conditions: 1. The classification must rest on substantial distinctions; 2. The classification must be germane to the purpose of the law; 3. The classification must not be limited to existing conditions only; and 4. The classification must apply equally to all members of the same class.24 There is no substantial distinction between municipalities with pending cityhood bills in the 11thCongress and municipalities that did not have pending bills. The mere pendency of a cityhood bill in the 11th Congress is not a material difference to distinguish one municipality from another for the purpose of the income requirement. The pendency of a cityhood bill in the 11th Congress does not affect or determine the level of income of a municipality. Municipalities with pending cityhood bills in the 11thCongress might even have lower annual income than municipalities that did not have pending cityhood bills. In short, the classification criterion mere pendency of a cityhood bill in the 11th Congress is not rationally related to the purpose of the law which is to prevent fiscally non-viable municipalities from converting into cities. Municipalities that did not have pending cityhood bills were not informed that a pending cityhood bill in the 11th Congress would be a condition for exemption from the increased P100 million income requirement. Had they been informed, many municipalities would have caused the filing of their own cityhood bills. These municipalities, even if they have bigger annual income than the 16 respondent municipalities, cannot now convert into cities if their income is less than P100 million. The fact of pendency of a cityhood bill in the 11th Congress limits the exemption to a specific condition existing at the time of passage of RA 9009. That specific condition will never

LCP vs. COMELEC

happen again. This violates the requirement that a valid classification must not be limited to existing conditions only. This requirement is illustrated in Mayflower Farms, Inc. v. Ten Eyck,25 where the challenged law allowed milk dealers engaged in business prior to a fixed date to sell at a price lower than that allowed to newcomers in the same business. In Mayflower, the U.S. Supreme Court held: We are referred to a host of decisions to the effect that a regulatory law may be prospective in operation and may except from its sweep those presently engaged in the calling or activity to which it is directed. Examples are statutes licensing physicians and dentists, which apply only to those entering the profession subsequent to the passage of the act and exempt those then in practice, or zoning laws which exempt existing buildings, or laws forbidding slaughterhouses within certain areas, but excepting existing establishments. The challenged provision is unlike such laws, since, on its face, it is not a regulation of a business or an activity in the interest of, or for the protection of, the public, but an attempt to give an economic advantage to those engaged in a given business at an arbitrary date as against all those who enter the industry after that date. The appellees do not intimate that the classification bears any relation to the public health or welfare generally; that the provision will discourage monopoly; or that it was aimed at any abuse, cognizable by law, in the milk business. In the absence of any such showing, we have no right to conjure up possible situations which might justify the discrimination. The classification is arbitrary and unreasonable and denies the appellant the equal protection of the law. (Emphasis supplied) In the same vein, the exemption provision in the Cityhood Laws gives the 16 municipalities a unique advantage based on an arbitrary date the filing of their cityhood bills before the end of the 11thCongress - as against all other municipalities that want to convert into cities after the effectivity of RA 9009. Furthermore, limiting the exemption only to the 16 municipalities violates the requirement that the classification must apply to all similarly situated. Municipalities with the same income as the 16 respondent municipalities cannot convert into cities, while the 16 respondent municipalities can. Clearly, as worded the exemption provision found in the Cityhood Laws, even if it were written in Section 450 of the Local Government Code, would still be unconstitutional for violation of the equal protection clause. WHEREFORE, we GRANT the petitions and declare UNCONSTITUTIONAL the Cityhood Laws, namely: Republic Act Nos. 9389, 9390, 9391, 9392, 9393, 9394, 9398, 9404, 9405, 9407, 9408, 9409, 9434, 9435, 9436, and 9491. SO ORDERED.

LCP vs. COMELEC


Republic of the Philippines SUPREME COURTBaguio City EN BANC G.R. No. 176951 April 12, 2011

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

LCP vs. COMELEC 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, 2011 Resolution, 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 judicata and 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

LCP vs. COMELEC 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,

LCP vs. COMELEC 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, 2010.12The 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

LCP vs. COMELEC 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 51,21in 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, 2010 Resolution (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 the conversion 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:

LCP vs. COMELEC 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

LCP vs. COMELEC 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.

LCP vs. COMELEC 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,30viz: 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.

LCP vs. COMELEC 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 ofP100 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. 938731 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 nonqualification 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,

LCP vs. COMELEC 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.

LCP vs. COMELEC


Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 176951 June 28, 2011

League of Cities of the Philippines (LCP), represented by LCP National President Jerry P. Treas; City of Calbayog, represented by Mayor Mel Senen S. Sarmiento; and Jerry P. Treas, in his personal capacity as Taxpayer, Petitioners, vs. Commission on Elections; Municipality of Baybay, Province of Leyte; Municipality of Bogo, Province of Cebu; Municipality of Catbalogan, Province of Western Samar; Municipality of Tandag, Province of Surigao del Sur; Municipality of Borongan, Province of Eastern Samar; and Municipality of Tayabas, Province of Quezon, Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 177499 League of Cities of the Philippines (LCP), represented by LCP National President Jerry P. Treas; City of Calbayog, represented by Mayor Mel Senen S. Sarmiento; and Jerry P. Treas, in his personal capacity as Taxpayer, Petitioners, vs. Commission on Elections; Municipality of Lamitan, Province of Basilan; Municipality of Tabuk, Province of Kalinga; Municipality of Bayugan, Province of Agusan del Sur; Municipality of Batac, Province of Ilocos Norte; Municipality of Mati, Province of Davao Oriental; and Municipality of Guihulngan, Province of Negros Oriental, Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 178056 League of Cities of the Philippines (LCP), represented by LCP National President Jerry P. Treas; City of Calbayog, represented by Mayor Mel Senen S. Sarmiento; and Jerry P. Treas, in his personal capacity as Taxpayer, Petitioners, vs. Commission on Elections; Municipality of Cabadbaran, Province of Agusan del Norte; Municipality of Carcar, Province of Cebu; Municipality of El Salvador, Province of Misamis Oriental; Municipality of Naga, Cebu; and Department of Budget and Management, Respondents. RESOLUTION BERSAMIN, J.: We hereby consider and resolve: (a) the petitioners Motion for Leave to File Motion for Reconsideration of the Resolution of 12 April 2011, attached to which is a Motion for Reconsideration of the Resolution dated 12 April 2011 dated April 29, 2011 (Motion For Reconsideration), praying that the resolution of April 12, 2011 be reconsidered and set aside; and (b) the respondents Motion for Entry of Judgment dated May 9, 2011. After thorough consideration of the incidents, we deny the Motion for Reconsideration and grant the Motion for Entry of Judgment.

LCP vs. COMELEC As its prayer for relief shows, the Motion for Reconsideration seeks the reconsideration, reversal, or setting aside of the resolution of April 12, 2011.1 In turn, the resolution of April 12, 2011 denied the petitioners Ad Cautelam Motion for Reconsideration (of the Decision dated 15 February 2011).2 Clearly, the Motion for Reconsideration is really a second motion for reconsideration in relation to the resolution dated February 15, 2011.3
Another indicium of its being a second motion for reconsideration is the fact that the Motion for Reconsiderationraises issues entirely identical to those the petitioners already raised in their Ad Cautelam Motion for Reconsideration (of the Decision dated 15 February 2011). The following tabulation demonstrates the sameness of issues between the motions, to wit: Motion for Reconsideration of April 29, 2011 Ad Cautelam Motion for Reconsideration (of the Decision dated 15 February 2011) dated March 8, 2011

I. With due respect, neither the Rules II. The Resolution Contravenes The of Court nor jurisprudence allows the 1997 Rules Of Civil Procedure And Honorable Court to take cognizance Relevant Supreme Court Issuances. of Respondent Municipalities multiple motions. By doing so, the Honorable Court therefore acted contrary to the Rules of Court and its internal procedures. II. Contrary to the ruling of the Honorable Court in the Assailed Resolution, the controversy involving the Sixteen (16) Cityhood laws had long been resolved with finality;thus, the principles of immutability of judgment and res judicata are applicable and operate to deprive the Honorable Court of jurisdiction. 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. 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 Government Units To A Just Share In The National Taxes.

III. Contrary to the Assailed Resolution of the Honorable Court, the sixteen (16) Cityhood laws neither repealed nor amended the Local Government Code. The Honorable Court committed an error when it failed to rule in the Assailed Resolution that the Sixteen (16) Cityhood Laws violated Article X, Sections 6 and 10 of the Constitution. IV. With due respect, the constitutionality of R.A. 9009 is not an issue in this case. It was error on the part of the Honorable Court to consider the law arbitrary.

LCP vs. COMELEC That Issue No. IV (i.e., the constitutionality of Republic Act No. 9009) appears in the Motion for Reconsiderationbut is not found in the Ad Cautelam Motion for Reconsideration (of the Decision dated 15 February 2011) is of no consequence, for the constitutionality of R.A. No. 9009 is neither relevant nor decisive in this case, the reference to said legislative enactment being only for purposes of discussion.
The Motion for Reconsideration, being a second motion for reconsideration, cannot be entertained. As to that, Section 24 of Rule 51 of the Rules of Court is unqualified. The Court has firmly held that a second motion for reconsideration is a prohibited pleading,5 and only for extraordinarily persuasive reasons and only after an express leave has been first obtained may a second motion for reconsideration be entertained.6 The restrictive policy against a second motion for reconsideration has been re-emphasized in the recently promulgated Internal Rules of the Supreme Court, whose Section 3, Rule 15 states: Section 3. Second motion for reconsideration. The Court shall not entertain a second motion for reconsideration, and any exception to this rule can only be granted in the higher interest of justice by the Court en banc upon a vote of at least two-thirds of its actual membership. There is reconsideration "in the higher interest of justice" when the assailed decision is not only legally erroneous, but is likewise patently unjust and potentially capable of causing unwarranted and irremediable injury or damage to the parties. A second motion for reconsideration can only be entertained before the ruling sought to be reconsidered becomes final by operation of law or by the Courts declaration. In the Division, a vote of three Members shall be required to elevate a second motion for reconsideration to the Court En Banc. We observe, too, that the prescription that a second motion for reconsideration "can only be entertained before the ruling sought to be reconsidered becomes final by operation of law or by the Courts declaration" even renders the denial of the petitioners Motion for Reconsideration more compelling. As the resolution of April 12, 2011 bears out,7 the ruling sought to be reconsidered became final by the Courts express declaration. Consequently, the denial of the Motion for Reconsideration is immediately warranted. Still, the petitioners seem to contend that the Court had earlier entertained and granted the respondents own second motion for reconsideration. There is no similarity between then and now, however, for the Court en banc itself unanimously declared in the resolution of June 2, 2009 that the respondents second motion for reconsideration was "no longer a prohibited pleading."8 No similar declaration favors the petitioners Motion for Reconsideration. Finally, considering that the petitioners Motion for Reconsideration merely rehashes the issues previously put forward, particularly in the Ad Cautelam Motion for Reconsideration (of the Decision dated 15 February 2011), the Court, having already passed upon such issues with finality, finds no need to discuss the issues again to avoid repetition and redundancy. Accordingly, the finality of the resolutions upholding the constitutionality of the 16 Cityhood Laws now absolutely warrants the granting of respondents Motion for Entry of Judgment. WHEREFORE, the Court denies the petitioners Motion for Leave to File Motion for Reconsideration of the Resolution of 12 April 2011 and the attached Motion for Reconsideration of the Resolution of 12 April 2011; grants the respondents Motion for Entry of Judgment dated May 9, 2011; and directs the Clerk of Court to forthwith issue the Entry of Judgment in this case. No further pleadings or submissions by any party shall be entertained. SO ORDERED.

Navarro vs. Ermita


Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 180050 February 10, 2010

RODOLFO G. NAVARRO, VICTOR F. BERNAL, and RENE O. MEDINA, Petitioners, vs. EXECUTIVE SECRETARY EDUARDO ERMITA, representing the President of the Philippines; Senate of the Philippines, represented by the SENATE PRESIDENT; House of Representatives, represented by the HOUSE SPEAKER; GOVERNOR ROBERT ACE S. BARBERS, representing the mother province of Surigao del Norte; GOVERNOR GERALDINE ECLEO VILLAROMAN, representing the new Province of Dinagat Islands, Respondents. DECISION PERALTA, J.: This is a petition for certiorari under Rule 65 of the Rules of Court seeking to nullify Republic Act (R.A.) No. 9355, otherwise known as An Act Creating the Province of Dinagat Islands, for being unconstitutional. Petitioners Rodolfo G. Navarro, Victor F. Bernal, and Rene O. Medina aver that they are taxpayers and residents of the Province of Surigao del Norte. They have served the Province of Surigao del Norte once as Vice- Governor and members of the Provincial Board, respectively. They claim to have previously filed a similar petition, which was dismissed on technical grounds.1 They allege that the creation of the Dinagat Islands as a new province, if uncorrected, perpetuates an illegal act of Congress, and unjustly deprives the people of Surigao del Norte of a large chunk of its territory, Internal Revenue Allocation and rich resources from the area. The facts are as follows: The mother province of Surigao del Norte was created and established under R.A. No. 2786 on June 19, 1960. The province is composed of three main groups of islands: (1) the Mainland and Surigao City; (2) Siargao Island and Bucas Grande; and (3) Dinagat Island, which is composed of seven municipalities, namely, Basilisa, Cagdianao, Dinagat, Libjo, Loreto, San Jose, and Tubajon. Based on the official 2000 Census of Population and Housing conducted by the National Statistics Office (NSO),2the population of the Province of Surigao del Norte as of May 1, 2000 was 481,416, broken down as follows: Mainland 281,111 Surigao City 118,534 Siargao Island & Bucas Grande 93,354 Dinagat Island 106,951 Under Section 461 of R.A. No. 7610, otherwise known as The Local Government Code, a province may be created if it has an average annual income of not less than P20 million based on 1991 constant prices as certified by the Department of Finance, and a population of not less than 250,000 inhabitants as certified by the NSO, or a contiguous territory of at least 2,000 square kilometers as certified by the Lands Management Bureau. The territory need not be contiguous if it comprises two or more islands or is separated by a chartered city or cities, which do not contribute to the income of the province.

Navarro vs. Ermita On April 3, 2002, the Office of the President, through its Deputy Executive Secretary for Legal Affairs, advised the Sangguniang Panlalawigan of the Province of Surigao del Norte of the deficient population in the proposed Province of Dinagat Islands.3
In July 2003, the Provincial Government of Surigao del Norte conducted a special census, with the assistance of an NSO District Census Coordinator, in the Dinagat Islands to determine its actual population in support of the house bill creating the Province of Dinagat Islands. The special census yielded a population count of 371,576 inhabitants in the proposed province. The NSO, however, did not certify the result of the special census. On July 30, 2003, Surigao del Norte Provincial Governor Robert Lyndon S. Barbers issued Proclamation No. 01, which declared as official, for all purposes, the 2003 Special Census in Dinagat Islands showing a population of 371,576.4 The Bureau of Local Government Finance certified that the average annual income of the proposed Province of Dinagat Islands for calendar year 2002 to 2003 based on the 1991 constant prices was P82,696,433.23. The land area of the proposed province is 802.12 square kilometers. On August 14, 2006 and August 28, 2006, the Senate and the House of Representatives, respectively, passed the bill creating the Province of Dinagat Islands. It was approved and enacted into law as R.A. No. 9355 on October 2, 2006 by President Gloria Macapagal-Arroyo. On December 2, 2006, a plebiscite was held in the mother Province of Surigao del Norte to determine whether the local government units directly affected approved of the creation of the Province of Dinagat Islands into a distinct and independent province comprising the municipalities of Basilisa, Cagdianao, Dinagat, Libjo (Albor), Loreto, San Jose, and Tubajon. The result of the plebiscite yielded 69,943 affirmative votes and 63,502 negative votes.5 On December 3, 2006, the Plebiscite Provincial Board of Canvassers proclaimed that the creation of Dinagat Islands into a separate and distinct province was ratified and approved by the majority of the votes cast in the plebiscite.6 On January 26, 2007, a new set of provincial officials took their oath of office following their appointment by President Gloria Macapagal-Arroyo. Another set of provincial officials was elected during the synchronized national and local elections held on May 14, 2007. On July 1, 2007, the elected provincial officials took their oath of office; hence, the Province of Dinagat Islands began its corporate existence.7 Petitioners contended that the creation of the Province of Dinagat Islands under R.A. No. 9355 is not valid because it failed to comply with either the population or land area requirement prescribed by the Local Government Code. Petitioners prayed that R.A. No. 9355 be declared unconstitutional, and that all subsequent appointments and elections to the new vacant positions in the newly created Province of Dinagat Islands be declared null and void. They also prayed for the return of the municipalities of the Province of Dinagat Islands and the return of the former districts to the mother Province of Surigao del Norte. Petitioners raised the following issues: I WHETHER OR NOT REPUBLIC ACT NO. 9355, CREATING THE NEW PROVINCE OF DINAGAT ISLANDS, COMPLIED WITH THE CONSTITUTION AND STATUTORY REQUIREMENTS UNDER SECTION 461 OF REPUBLIC ACT NO. 7160, OTHERWISE KNOWN AS THE LOCAL GOVERNMENT CODE OF 1991. II WHETHER OR NOT THE CREATION OF DINAGAT AS A NEW PROVINCE BY THE RESPONDENTS IS AN ACT OF GERRYMANDERING. III

Navarro vs. Ermita WHETHER OR NOT THE RESULT OF THE PLEBISCITE IS CREDIBLE AND TRULY REFLECTS THE MANDATE OF THE PEOPLE.8
In her Memorandum, respondent Governor Geraldine B. Ecleo-Villaroman of the Province of Dinagat Islands raises procedural issues. She contends that petitioners do not have the legal standing to question the constitutionality of the creation of the Province of Dinagat, since they have not been directly injured by its creation and are without substantial interest over the matter in controversy. Moreover, she alleges that the petition is moot and academic because the existence of the Province of Dinagat Islands has already commenced; hence, the petition should be dismissed. The contention is without merit. In Coconut Oil Refiners Association, Inc. v. Torres,9 the Court held that in cases of paramount importance where serious constitutional questions are involved, the standing requirements may be relaxed and a suit may be allowed to prosper even where there is no direct injury to the party claiming the right of judicial review. In the same vein, with respect to other alleged procedural flaws, even assuming the existence of such defects, the Court, in the exercise of its discretion, brushes aside these technicalities and takes cognizance of the petition considering its importance and in keeping with the duty to determine whether the other branches of the government have kept themselves within the limits of the Constitution.10 Further, supervening events, whether intended or accidental, cannot prevent the Court from rendering a decision if there is a grave violation of the Constitution.11 The courts will decide a question otherwise moot and academic if it is capable of repetition, yet evading review.12 The main issue is whether or not R.A. No. 9355 violates Section 10, Article X of the Constitution. Petitioners contend that the proposed Province of Dinagat Islands is not qualified to become a province because it failed to comply with the land area or the population requirement, despite its compliance with the income requirement. It has a total land area of only 802.12 square kilometers, which falls short of the statutory requirement of at least 2,000 square kilometers. Moreover, based on the NSO 2000 Census of Population, the total population of the proposed Province of Dinagat Islands is only 106,951, while the statutory requirement is a population of at least 250,000 inhabitants. Petitioners allege that in enacting R.A. No. 9355 into law, the House of Representatives and the Senate erroneously relied on paragraph 2 of Article 9 of the Rules and Regulations Implementing the Local Government Code of 1991, which states that "[t]he land area requirement shall not apply where the proposed province is composed of one (1) or more islands."13 The preceding italicized provision contained in the Implementing Rules and Regulations is not expressly or impliedly stated as an exemption to the land area requirement in Section 461 of the Local Government Code. Petitioners assert that when the Implementing Rules and Regulations conflict with the law that they seek to implement, the law prevails. On the other hand, respondents contend in their respective Memoranda that the Province of Dinagat Islands met the legal standard for its creation.
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First, the Bureau of Local Government Finance certified that the average annual income of the proposed Province of Dinagat Islands for the years 2002 to 2003 based on the 1991 constant prices was P82,696,433.25. Second, the Lands Management Bureau certified that though the land area of the Province of Dinagat Islands is 802.12 square kilometers, it is composed of one or more islands; thus, it is exempt from the required land area of 2,000 square kilometers under paragraph 2 of Article 9 of the Rules and Regulations Implementing the Local Government Code. Third, in the special census conducted by the Provincial Government of Surigao del Norte, with the assistance of a District Census Coordinator of the NSO, the number of inhabitants in the Province of Dinagat Islands as of 2003, or almost three years before the enactment of R.A. No. 9355 in 2006, was 371,576, which is more than the minimum requirement of 250,000 inhabitants.

Navarro vs. Ermita In his Memorandum, respondent Governor Ace S. Barbers contends that although the result of the special census conducted by the Provincial Government of Surigao del Norte on December 2, 2003 was never certified by the NSO, it is credible since it was conducted with the aid of a representative of the NSO. He alleged that the lack of certification by the NSO was cured by the presence of NSO officials, who testified during the deliberations on House Bill No. 884 creating the Province of Dinagat Islands, and who questioned neither the conduct of the special census nor the validity of the result.
The Ruling of the Court The petition is granted. The constitutional provision on the creation of a province in Section 10, Article X of the Constitution states: SEC. 10. No province, city, municipality, or barangay may be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the criteria established in the local government code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected."14 Pursuant to the Constitution, the Local Government Code of 1991 prescribed the criteria for the creation of a province, thus: SEC. 461. Requisites for Creation. -- (a) A province may be created if it has an average annual income, as certified by the Department of Finance, of not less than Twenty million pesos (P20,000,000.00) based on 1991 constant prices and either of the following requisites: (i) a contiguous territory of at least two thousand (2,000) square kilometers, as certified by the Lands Management Bureau; or (ii) a population of not less than two hundred fifty thousand (250,000) inhabitants as certified by the National Statistics Office: Provided, That, the creation thereof shall not reduce the land area, population, and income of the original unit or units at the time of said creation to less than the minimum requirements prescribed herein. (b) The territory need not be contiguous if it comprises two (2) or more islands or is separated by a chartered city or cities which do not contribute to the income of the province. (c) The average annual income shall include the income accruing to the general fund, exclusive of special funds, trust funds, transfers, and non-recurring income.15 As a clarification of the territorial requirement, the Local Government Code requires a contiguous territory of at least 2,000 square kilometers, as certified by the Lands Management Bureau. However, the territory need not be contiguous if it comprises two (2) or more islands or is separated by a chartered city or cities that do not contribute to the income of the province. If a proposed province is composed of two or more islands, does "territory," under Sec. 461 of the Local Government Code, include not only the land mass above the water, but also that which is beneath it? To answer the question above, the discussion in Tan v. Commission on Elections (COMELEC)16 is enlightening. In Tan v. COMELEC, petitioners therein contended that Batas Pambansa Blg. 885, creating the new Province of Negros del Norte, was unconstitutional for it was not in accord with Art. XI, Sec. 3 of the Constitution, and Batas Pambansa Blg. 337, the former Local Government Code. Although what was applicable then was the 1973 Constitution and the former Local Government Code, the provisions pertinent to the case are substantially similar to the provisions in this case.

Navarro vs. Ermita Art. XI, Sec. 3 of the 1973 Constitution provides:
Sec. 3. No province, city, municipality or barrio (barangay in the 1987 Constitution) may be created, divided, merged, abolished, or its boundary substantially altered except in accordance with the criteria established in the local government code, and subject to the approval by a majority of the votes in a plebiscite in the unit or units affected. The requisites for the creation of a province in Sec. 197 of Batas Pambansa Blg. 337 are similar to the requisites in Sec. 461 of the Local Government Code of 1991, but the requirements for population and territory/land area are lower now, while the income requirement is higher. Sec. 197 of Batas Pambansa Blg. 337, the former Local Government Code, provides: SEC. 197.Requisites for Creation.A province may be created if it has a territory of at least three thousand five hundred square kilometers, a population of at least five hundred thousand persons, an average estimated annual income, as certified by the Ministry of Finance, of not less than ten million pesos for the last three consecutive years, and its creation shall not reduce the population and income of the mother province or provinces at the time of said creation to less than the minimum requirements under this section. The territory need not be contiguous if it comprises two or more islands. The average estimated annual income shall include the income allotted for both the general and infrastructure funds, exclusive of trust funds, transfers and nonrecurring income.17 In Tan v. COMELEC, petitioners therein filed a case for Prohibition for the purpose of stopping the COMELEC from conducting the plebiscite scheduled on January 3, 1986. Since the Court was in recess, it was unable to consider the petition on time. Petitioners filed a supplemental pleading, averring that the plebiscite sought to be restrained by them was held as scheduled, but there were still serious issues raised in the case affecting the legality, constitutionality and validity of such exercise which should properly be passed upon and resolved by the Court. At issue in Tan was the land area of the new Province of Negros del Norte, and the validity of the plebiscite, which did not include voters of the parent Province of Negros Occidental, but only those living within the territory of the new Province of Negros del Norte. The Court held that the plebiscite should have included the people living in the area of the proposed new province and those living in the parent province. However, the Court did not direct the conduct of a new plebiscite, because the factual and legal basis for the creation of the new province did not exist as it failed to satisfy the land area requirement; hence, Batas Pambansa Blg. 885, creating the new Province of Negros del Norte, was declared unconstitutional. The Court found that the land area of the new province was only about 2,856 square kilometers, which was below the statutory requirement then of 3,500 square kilometers. Respondents in Tan insisted that when the Local Government Code speaks of the required territory of the province to be created, what is contemplated is not only the land area, but also the land and water over which the said province has jurisdiction and control. The respondents submitted that in this regard, the marginal sea within the three mile limit should be considered in determining the extent of the territory of the new province. The Court stated that "[s]uch an interpretation is strained, incorrect and fallacious."18 It held: The last sentence of the first paragraph of Section 197 is most revealing. As so stated therein the "territory need not be contiguous if it comprises two or more islands." The use of the word territory in this particular provision of the Local Government Code and in the very last sentence thereof, clearly, reflects that "territory" as therein used, has reference only to the mass of land area and excludes the waters over which the political unit exercises control. Said sentence states that the "territory need not be contiguous." Contiguous means (a) in physical contact; (b) touching along all or most of one side; (c) near, [n]ext, or adjacent (Webster's New World Dictionary, 1972 Ed., p. 307). "Contiguous," when employed as an adjective, as in the above sentence, is only used when it describes physical contact, or a touching of sides of two solid masses of matter. The meaning of particular terms in a statute may be ascertained by reference to words associated with or related to them in the statute (Animal Rescue League vs. Assessors, 138 A.L.R., p. 110). Therefore, in the context of the sentence above, what need not be "contiguous" is the

Navarro vs. Ermita "territory" the physical mass of land area. There would arise no need for the legislators to use the word contiguous if they had intended that the term "territory" embrace not only land area but also territorial waters. It can be safely concluded that the word territory in the first paragraph of Section 197 is meant to be synonymous with "land area" only. The words and phrases used in a statute should be given the meaning intended by the legislature (82 C.J.S., p. 636). The sense in which the words are used furnished the rule of construction (In re Winton Lumber Co., 63 p. 2d., p. 664).19
The discussion of the Court in Tan on the definition and usage of the terms "territory," and "contiguous," and the meaning of the provision, "The territory need not be contiguous if it comprises two or more islands," contained in Sec. 197 of the former Local Government Code, which provides for the requisites in the creation of a new province, is applicable in this case since there is no reason for a change in their respective definitions, usage, or meaning in its counterpart provision in the present Local Government Code contained in Sec. 461 thereof. The territorial requirement in the Local Government Code is adopted in the Rules and Regulations Implementing the Local Government Code of 1991 (IRR),20 thus: ART. 9. Provinces.(a) Requisites for creationA province shall not be created unless the following requisites on income and either population or land area are present: (1) Income An average annual income of not less than Twenty Million Pesos (P20,000,000.00) for the immediately preceding two (2) consecutive years based on 1991 constant prices, as certified by DOF. The average annual income shall include the income accruing to the general fund, exclusive of special funds, special accounts, transfers, and nonrecurring income; and (2) Population or land area - Population which shall not be less than two hundred fifty thousand (250,000) inhabitants, as certified by National Statistics Office; or land area which must be contiguous with an area of at least two thousand (2,000) square kilometers, as certified by LMB. The territory need not be contiguous if it comprises two (2) or more islands or is separated by a chartered city or cities which do not contribute to the income of the province. The land area requirement shall not apply where the proposed province is composed of one (1) or more islands. The territorial jurisdiction of a province sought to be created shall be properly identified by metes and bounds. However, the IRR went beyond the criteria prescribed by Section 461 of the Local Government Code when it added the italicized portion above stating that "[t]he land area requirement shall not apply where the proposed province is composed of one (1) or more islands." Nowhere in the Local Government Code is the said provision stated or implied. Under Section 461 of the Local Government Code, the only instance when the territorial or land area requirement need not be complied with is when there is already compliance with the population requirement. The Constitution requires that the criteria for the creation of a province, including any exemption from such criteria, must all be written in the Local Government Code.21 There is no dispute that in case of discrepancy between the basic law and the rules and regulations implementing the said law, the basic law prevails, because the rules and regulations cannot go beyond the terms and provisions of the basic law.22 Hence, the Court holds that the provision in Sec. 2, Art. 9 of the IRR stating that "[t]he land area requirement shall not apply where the proposed province is composed of one (1) or more islands" is null and void. Respondents, represented by the Office of the Solicitor General, argue that rules and regulations have the force and effect of law as long as they are germane to the objects and purposes of the law. They contend that the exemption from the land area requirement of 2,000 square kilometers is germane to the purpose of the Local Government Code to develop political and territorial subdivisions into self-reliant communities and make them more effective partners in the attainment of national goals.23 They assert that in Holy Spirit Homeowners Association, Inc. v. Defensor,24 the Court declared as valid the implementing rules and regulations of a statute, even though the administrative agency added certain provisions in the implementing rules that were not found in the law. In Holy Spirit Homeowners Association, Inc. v. Defensor, the provisions in the implementing rules and regulations, which were questioned by petitioner therein, merely filled in the details in accordance with a known standard. The law that was questioned was R.A. No. 9207, otherwise known as "National Government Center (NGC) Housing and Land Utilization Act of 2003." It was therein declared that the "policy of the State [was] to secure the land tenure of the urban

Navarro vs. Ermita poor. Toward this end, lands located in the NGC, Quezon City shall be utilized for housing, socioeconomic, civic, educational, religious and other purposes." Section 5 of R.A. No. 9207 created the National Government Center Administration Committee, which was tasked to administer, formulate the guidelines and policies and implement the land disposition of the areas covered by the law.
Petitioners therein contended that while Sec. 3.2 (a.1) of the IRR fixed the selling rate of a lot at P700.00 per sq. m., R.A. No. 9207 did not provide for the price. In addition, Sec. 3.2 (c.1) of the IRR penalizes a beneficiary who fails to execute a contract to sell within six (6) months from the approval of the subdivision plan by imposing a price escalation, while there is no such penalty imposed by R.A. No. 9207. Thus, they conclude that the assailed provisions conflict with R.A. No. 9207 and should be nullified. In Holy Spirit Homeowners Association, Inc., the Court held: Where a rule or regulation has a provision not expressly stated or contained in the statute being implemented, that provision does not necessarily contradict the statute. A legislative rule is in the nature of subordinate legislation, designed to implement a primary legislation by providing the details thereof. All that is required is that the regulation should be germane to the objects and purposes of the law; that the regulation be not in contradiction to but in conformity with the standards prescribed by the law. In Section 5 of R.A. No. 9207, the Committee is granted the power to administer, formulate guidelines and policies, and implement the disposition of the areas covered by the law. Implicit in this authority and the statutes objective of urban poor housing is the power of the Committee to formulate the manner by which the reserved property may be allocated to the beneficiaries. Under this broad power, the Committee is mandated to fill in the details such as the qualifications of beneficiaries, the selling price of the lots, the terms and conditions governing the sale and other key particulars necessary to implement the objective of the law. These details are purposely omitted from the statute and their determination is left to the discretion of the Committee because the latter possesses special knowledge and technical expertise over these matters. The Committees authority to fix the selling price of the lots may be likened to the rate-fixing power of administrative agencies. In case of a delegation of rate-fixing power, the only standard which the legislature is required to prescribe for the guidance of the administrative authority is that the rate be reasonable and just. However, it has been held that even in the absence of an express requirement as to reasonableness, this standard may be implied. In this regard, petitioners do not even claim that the selling price of the lots is unreasonable. The provision on the price escalation clause as a penalty imposed to a beneficiary who fails to execute a contract to sell within the prescribed period is also within the Committees authority to formulate guidelines and policies to implement R.A. No. 9207. The Committee has the power to lay down the terms and conditions governing the disposition of said lots, provided that these are reasonable and just. There is nothing objectionable about prescribing a period within which the parties must execute the contract to sell. This condition can ordinarily be found in a contract to sell and is not contrary to law, morals, good customs, public order, or public policy.25 Hence, the provisions in the implementing rules and regulations that were questioned in Holy Spirit Homeowners Association, Inc. merely filled in the necessary details to implement the objective of the law in accordance with a known standard, and were thus germane to the purpose of the law. In this case, the pertinent provision in the IRR did not fill in any detail in accordance with a known standard provided for by the law. Instead, the IRR added an exemption to the standard or criteria prescribed by the Local Government Code in the creation of a province as regards the land area requirement, which exemption is not found in the Code. As such, the provision in the IRR that the land area requirement shall not apply where the proposed province is composed of one or more islands is not in conformity with the standard or criteria prescribed by the Local Government Code; hence, it is null and void. Contrary to the contention of respondents, the extraneous provision cannot be considered as germane to the purpose of the law to develop territorial and political subdivisions into self-reliant communities because, in the first place, it already conflicts with the criteria prescribed by the law in creating a territorial subdivision.

Navarro vs. Ermita Further, citing Galarosa v. Valencia,26 the Office of the Solicitor General contends that the IRRs issued by the Oversight Committee composed of members of the legislative and executive branches of the government are entitled to great weight and respect, as they are in the nature of executive construction.
The case is not in point. In Galarosa, the issue was whether or not Galarosa could continue to serve as a member of the Sangguniang Bayan beyond June 30, 1992, the date when the term of office of the elective members of theSangguniang Bayan of Sorsogon expired. Galarosa was the incumbent president of the Katipunang Bayan or Association of Barangay Councils (ABC) of the Municipality of Sorsogon, Province of Sorsogon; and was appointed as a member of the Sangguniang Bayan (SB) of Sorsogon pursuant to Executive Order No. 342 in relation to Sec. 146 of Batas Pambansa Blg. 337, the former Local Government Code. Sec. 494 of the Local Government Code of 199127 states that the duly elected presidents of the liga [ng mga barangay] at the municipal, city and provincial levels, including the component cities and municipalities of Metropolitan Manila, shall serve as ex officio members of the sangguniang bayan, sangguniang panglungsod, and sangguniang panlalawigan, respectively. They shall serve as such only during their term of office as presidents of the liga chapters which, in no case, shall be beyond the term of office of the sanggunian concerned. The section, however, does not fix the specific duration of their term as liga president. The Court held that this was left to the by-laws of the liga pursuant to Art. 211(g) of the Rules and Regulations Implementing the Local Government Code of 1991. Moreover, there was no indication that Secs. 49128 and 494 should be given retroactive effect to adversely affect the presidents of the ABC; hence, the said provisions were to be applied prospectively. The Court stated that there is no law that prohibits ABC presidents from holding over as members of theSangguniang Bayan. On the contrary, the IRR, prepared and issued by the Oversight Committee upon specific mandate of Sec. 533 of the Local Government Code, expressly recognizes and grants the hold-over authority to the ABC presidents under Art. 210, Rule XXIX.29 The Court upheld the application of the hold-over doctrine in the provisions of the IRR and the issuances of the DILG, whose purpose was to prevent a hiatus in the government pending the time when the successor may be chosen and inducted into office. The Court held that Sec. 494 of the Local Government Code could not have been intended to allow a gap in the representation of the barangays, through the presidents of the ABC, in the sanggunian. Since the term of office of the punong barangays elected in the March 28, 1989 election and the term of office of the presidents of the ABC had not yet expired, and taking into account the special role conferred upon, and the broader powers and functions vested in the barangays by the Code, it was inferred that the Code never intended to deprive thebarangays of their representation in the sangguniang bayan during the interregnum when the liga had yet to be formally organized with the election of its officers. Under the circumstances prevailing in Galarosa, the Court considered the relevant provisions in the IRR formulated by the Oversight Committee and the pertinent issuances of the DILG in the nature of executive construction, which were entitled to great weight and respect. Courts determine the intent of the law from the literal language of the law within the laws four corners.30 If the language of the law is plain, clear and unambiguous, courts simply apply the law according to its express terms.31If a literal application of the law results in absurdity, impossibility or injustice, then courts may resort to extrinsic aids of statutory construction like the legislative history of the law,32 or may consider the implementing rules and regulations and pertinent executive issuances in the nature of executive construction. In this case, the requirements for the creation of a province contained in Sec. 461 of the Local Government Code are clear, plain and unambiguous, and its literal application does not result in absurdity or injustice. Hence, the provision in Art. 9(2) of the IRR exempting a proposed province composed of one or more islands from the land-area requirement cannot be considered an executive construction of the criteria prescribed by the Local Government Code. It is an extraneous provision not intended by the Local Government Code and, therefore, is null and void. Whether R.A. No. 9355 complied with the requirements of Section 461 of the Local Government Code in creating the Province of Dinagat Islands

Navarro vs. Ermita It is undisputed that R.A. No. 9355 complied with the income requirement specified by the Local Government Code. What is disputed is its compliance with the land area or population requirement.
R.A. No. 9355 expressly states that the Province of Dinagat Islands "contains an approximate land area of eighty thousand two hundred twelve hectares (80,212 has.) or 802.12 sq. km., more or less, including Hibuson Island and approximately forty-seven (47) islets x x x."33 R.A. No. 9355, therefore, failed to comply with the land area requirement of 2,000 square kilometers. The Province of Dinagat Islands also failed to comply with the population requirement of not less than 250,000 inhabitants as certified by the NSO. Based on the 2000 Census of Population conducted by the NSO, the population of the Province of Dinagat Islands as of May 1, 2000 was only 106,951. Although the Provincial Government of Surigao del Norte conducted a special census of population in Dinagat Islands in 2003, which yielded a population count of 371,000, the result was not certified by the NSO as required by the Local Government Code.34 Moreover, respondents failed to prove that with the population count of 371,000, the population of the original unit (mother Province of Surigao del Norte) would not be reduced to less than the minimum requirement prescribed by law at the time of the creation of the new province.35 Respondents contended that the lack of certification by the NSO was cured by the presence of the officials of the NSO during the deliberations on the house bill creating the Province of Dinagat Islands, since they did not object to the result of the special census conducted by the Provincial Government of Surigao del Norte. The contention of respondents does not persuade. Although the NSO representative to the Committee on Local Government deliberations dated November 24, 2005 did not object to the result of the provincial governments special census, which was conducted with the assistance of an NSO district census coordinator, it was agreed by the participants that the said result was not certified by the NSO, which is the requirement of the Local Government Code. Moreover, the NSO representative, Statistician II Ma. Solita C. Vergara, stated that based on their computation, the population requirement of 250,000 inhabitants would be attained by the Province of Dinagat Islands by the year 2065. The computation was based on the growth rate of the population, excluding migration. The pertinent portion of the deliberation on House Bill No. 884 creating the Province of Dinagat reads: THE CHAIRMAN (Hon. Alfredo S. Lim): . . . There is no problem with the land area requirement and to the income requirement. The problem is with the population requirement. xxxx Now because of this question, we would like to make it of record the stand and reply of National Statistics Office. Can we hear now from Ms. Solita Vergara? MS. VERGARA. We only certify population based on the counts proclaimed by the President. And in this case, we only certify the population based on the results of the 2000 census of population and housing. THE CHAIRMAN. Is that MS. VERGARA. Sir, as per Batas Pambansa, BP 72, we only follow kung ano po yong mandated by the law. So, as mandated by the law, we only certify those counts proclaimed official by the President. THE CHAIRMAN. But the government of Surigao del Norte is headed by Governor Robert Lyndon Ace Barbers and they conducted this census in year 2003 and yours was conducted in year 2000. So, within that time frame, three years, there could be an increase in population or transfer of residents, is that possible?

Navarro vs. Ermita MS. VERGARA. Yes, sir, but then we only conduct census of population every 10 years and we conduct special census every five years. So, in this case, maybe by next year, we will be conducting the 2006.
THE CHAIRMAN. But next year will be quite a long time, the matter is now being discussed on the table. So, is that the only thing you could say that its not authorized by National Statistics Office? MS. VERGARA. Yes, sir. We have passed a resolutionorders to the provincial officesto our provincial offices stating that we can provide assistance in the conduct, but then we cannot certify the result of the conduct as official. THE CHAIRMAN. May we hear from the Honorable Governor Robert Lyndon Ace Barbers, your reply on the statement of the representative from National Statistics Office. MR. BARBERS. Thank you, Mr. Chairman, good morning. Yes, your Honor, we have conducted a special census in the year 2003. We were accompanied by one of the employees from the Provincial National Statistics Office. However, we also admit the fact that our special census or the special census we conducted in 2003 was not validated or certified by the National Statistics Office, as provided by law. So, we admit on our part that the certification that I have issued based on the submission of records of each locality or each municipality from Dinagat Island[s] were true and correct based on our level, not on National Statistics Office level. But with that particular objection of Executive Director Ericta on what we have conducted, I believe, your Honor, it will be, however, moot and academic in terms of the provision under the Local Government Code on the requirements in making one area a province because what we need is a minimum of 20 million, as stated by the Honorable Chairman and, of course, the land area. Now, in terms of the land area, Dinagat Island[s] is exempted because xxx the area is composed of more than one island. In fact, there are about 47 low tide and high tide, less than 40? xxxx THE CHAIRMAN. Thank you, Governor. xxxx xxxx THE CHAIRMAN. Although the claim of the governor is, even if we hold in abeyance this questioned requirement, the other two requirements, as mandated by law, is already achieved the income and the land area. MS. VERGARA. We do not question po the results of any locally conducted census, kasi po talagang we provide assistance while theyre conducting their own census. But then, ang requirement po kasi is, basta we will not certifywe will not certify any population count as a result noong kanilang locally conducted census. Eh, sa Local Government Code po, we all know na ang xxx nire-require nila is a certification provided by National Statistics Office. Yon po yong requirement, di ba po? THE CHAIRMAN. Oo. But a certification, even though not issued, cannot go against actual reality because thats just a bureaucratic requirement. Ang ibig kong sabihin, ipagpalagay, a couple isang lalaki, isang babae nagmamahalan sila. As an offshoot of this undying love, nagkaroon ng mga anak, hindi ba, pero hindi kasal, its a live-in situation. Ang tanong ko lang, whether eventually, they got married or not, that love remains. And we cannot deny also the existence of the offspring out of that love, di ba? Kayayon lang. Okay. So, we just skip on this. MS. VERGARA. Your Honor. REP. ECLEO (GLENDA). Mr. Chairman. THE CHAIRMAN. Please, Ms. Vergara.

Navarro vs. Ermita MS. VERGARA. Yong sinasabi nyo po, sir, bale we computed the estimated population po ng Dinagat Province for the next years. So, based on our computation, mari-reach po ng Dinagat Provinceyong requirement na 250,000 population by the year 2065 pa po based on the growth rates during the period of .
THE CHAIRMAN. 2065? MS. VERGARA. 2065 po. xxxx THE CHAIRMAN. . . . [T]his is not the center of our argument since, as stated by the governor, kahit ha huwag na munang i-consider itong population requirement, eh, nakalagpas naman sila doon sa income and land area, hindi ba? Okay. Lets give the floor to Congresswoman Ecleo. REP. ECLEO (GLENDA). Thank you, Mr. Chairman. This is in connection with the special census. Before this was done, I went to the NSO. I talked to Administrator Ericta on the population. Then, I was told that the population, official population of Dinagat is 106,000. So, I told them that I want a special census to be conducted because there are so many houses that were not reached by the government enumerators, and I want to have my own or our own special census with the help of the provincial government. So, that is how it was conducted. Then, they told me that the official population of the proposed province will be on 2010. But at this moment, that is the official population of 106,000, even if our special census, we came up with 371,000 plus. So, that is it. THE CHAIRMAN. Thank you, Congresswoman. Your insights will be reflected in my reply to Senate President Drilon, so that he can also answer the letter of Bishop Cabahug. MS. VERGARA. Mr. Chairman, may clarifications lang din po ako. THE CHAIRMAN. Please. MS. VERGARA. Yon po sa sinasabi naming estimated population, we only based the computation doon sa growth rate lang po talaga, excluding the migration. xxxx MR. CHAIRMAN. Nong mga residents. MS. VERGARA. Yes, sir, natural growth lang po talaga siya.36 To reiterate, when the Dinagat Islands was proclaimed a new province on December 3, 2006, it had an official population of only 106,951 based on the NSO 2000 Census of Population. Less than a year after the proclamation of the new province, the NSO conducted the 2007 Census of Population. The NSO certified that as of August 1, 2007, Dinagat Islands had a total population of only 120,813,37 which was still below the minimum requirement of 250,000 inhabitants.38 In fine, R.A. No. 9355 failed to comply with either the territorial or the population requirement for the creation of the Province of Dinagat Islands.

Navarro vs. Ermita The Constitution clearly mandates that the creation of local government units must follow the criteria established in the Local Government Code.39 Any derogation of or deviation from the criteria prescribed in the Local Government Code violates Sec. 10, Art. X of the Constitution.40
Hence, R.A. No. 9355 is unconstitutional for its failure to comply with the criteria for the creation of a province prescribed in Sec. 461 of the Local Government Code. Whether the creation of the Province of Dinagat Islands is an act of gerrymandering Petitioners contend that the creation of the Province of Dinagat Islands is an act of gerrymandering on the ground that House Bill No. 884 excluded Siargao Island, with a population of 118,534 inhabitants, from the new province for complete political dominance by Congresswoman Glenda Ecleo-Villaroman. According to petitioners, if Siargao were included in the creation of the new province, the territorial requirement of 2,000 square kilometers would have been easily satisfied and the enlarged area would have a bigger population of 200,305 inhabitants based on the 2000 Census of Population by the NSO. But House Bill No. 884 excluded Siargao Island, because its inclusion would result in uncertain political control. Petitioners aver that, in the past, Congresswoman Glenda Ecleo-Villaroman lost her congressional seat twice to a member of an influential family based in Siargao. Therefore, the only way to complete political dominance is by gerrymandering, to carve a new province in Dinagat Islands where the Philippine Benevolent Members Association (PMBA), represented by the Ecleos, has the numbers. The argument of petitioners is unsubstantiated. "Gerrymandering" is a term employed to describe an apportionment of representative districts so contrived as to give an unfair advantage to the party in power.41 Fr. Joaquin G. Bernas, a member of the 1986 Constitutional Commission, defined "gerrymandering" as the formation of one legislative district out of separate territories for the purpose of favoring a candidate or a party.42 The Constitution proscribes gerrymandering, as it mandates each legislative district to comprise, as far as practicable, a contiguous, compact and adjacent territory.43 As stated by the Office of the Solicitor General, the Province of Dinagat Islands consists of one island and about 47 islets closely situated together, without the inclusion of separate territories. It is an unsubstantiated allegation that the province was created to favor Congresswoman Glenda Ecleo-Villaroman. Allegations of fraud and irregularities during the plebiscite cannot be resolved in a special civil action for certiorari Lastly, petitioners alleged that R.A. No. 9355 was ratified by a doubtful mandate in a plebiscite held on December 2, 2005, where the "yes votes" were 69,9343, while the "no votes" were 63,502. They contend that the 100% turnout of voters in the precincts of San Jose, Basilisa, Dinagat, Cagdianao and Libjo was contrary to human experience, and that the results were statistically improbable. Petitioners admit that they did not file any electoral protest questioning the results of the plebiscite, because they lacked the means to finance an expensive and protracted election case. Allegations of fraud and irregularities in the conduct of a plebiscite are factual in nature; hence, they cannot be the subject of this special civil action for certiorari under Rule 65 of the Rules of Court, which is a remedy designed only for the correction of errors of jurisdiction, including grave abuse of discretion amounting to lack or excess of jurisdiction.44 Petitioners should have filed the proper action with the Commission on Elections. However, petitioners admittedly chose not to avail themselves of the correct remedy. WHEREFORE, the petition is GRANTED. Republic Act No. 9355, otherwise known as [An Act Creating the Province of Dinagat Islands], is hereby declared unconstitutional. The proclamation of the Province of Dinagat Islands and the election of the officials thereof are declared NULL and VOID. The provision in Article 9 (2) of the Rules and Regulations Implementing the Local Government Code of 1991 stating, "The land area requirement shall not apply where the proposed province is composed of one (1) or more islands," is declared NULL and VOID. No costs. SO ORDERED.

Navarro vs. Ermita


Republic of the Philippines SUPREME COURT Baguio City EN BANC G.R. No. 180050 April 12, 2011

RODOLFO G. NAVARRO, VICTOR F. BERNAL, and RENE O. MEDINA, Petitioners, vs. EXECUTIVE SECRETARY EDUARDO ERMITA, representing the President of the Philippines; Senate of the Philippines, represented by the SENATE PRESIDENT; House of Representatives, represented by the HOUSE SPEAKER; GOVERNOR ROBERT ACE S. BARBERS, representing the mother province of Surigao del Norte; GOVERNOR GERALDINE ECLEO VILLAROMAN, representing the new Province of Dinagat Islands, Respondents, CONGRESSMAN FRANCISCO T. MATUGAS, HON. SOL T. MATUGAS, HON. ARTURO CARLOS A. EGAY, JR., HON. SIMEON VICENTE G. CASTRENCE, HON. MAMERTO D. GALANIDA, HON. MARGARITO M. LONGOS, and HON. CESAR M. BAGUNDOL, Intervenors. RESOLUTION NACHURA, J.: For consideration of the Court is the Urgent Motion to Recall Entry of Judgment dated October 20, 2010 filed by Movant-Intervenors1 dated and filed on October 29, 2010, praying that the Court (a) recall the entry of judgment, and (b) resolve their motion for reconsideration of the July 20, 2010 Resolution. To provide a clear perspective of the instant motion, we present hereunder a brief background of the relevant antecedents 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 certiorari8 seeking to nullify R.A. No. 9355 for being unconstitutional. They alleged that the creation of Dinagat as a new province, if uncorrected, would perpetuate an illegal act of Congress, and would unjustly deprive the people of Surigao del Norte of a large chunk of the provincial territory, Internal Revenue Allocation (IRA), and rich resources from the area. They pointed out that when the law was passed, Dinagat had a land area of 802.12 square kilometers only and a population of only 106,951, failing to comply with Section 10, Article X of the Constitution and of Section 461 of the LGC, on both counts, viz. Constitution, Article X Local Government

Navarro vs. Ermita 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 Decision9 granting the petition.10 The Decision declared R.A. No. 9355 unconstitutional for failure to comply with the requirements on population and land area in the creation of a province under the LGC. Consequently, it declared the proclamation of Dinagat and the election of its officials as null and void. The Decision likewise declared as null and void the provision on Article 9(2) of the Rules and Regulations Implementing the LGC (LGC-IRR), stating that, "[t]he land area requirement shall not apply where the proposed province is composed of one (1) or more islands" for being beyond the ambit of Article 461 of the LGC, inasmuch as such exemption is not expressly provided in the law.11 The Republic, represented by the Office of the Solicitor General, and Dinagat filed their respective motions for reconsideration of the Decision. In its Resolution12 dated May 12, 2010,13 the Court denied the said motions.14 Unperturbed, the Republic and Dinagat both filed their respective motions for leave of court to admit their second motions for reconsideration, accompanied by their second motions for reconsideration. These motions were eventually "noted without action" by this Court in its June 29, 2010 Resolution.15 Meanwhile, the movants-intervenors filed on June 18, 2010 a Motion for Leave to Intervene and to File and to Admit Intervenors Motion for Reconsideration of the Resolution dated May 12, 2010. They alleged that the COMELEC issued Resolution No. 8790, relevant to this case, which provides RESOLUTION NO. 8790 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;

Navarro vs. Ermita 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

Navarro vs. Ermita 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 rulings17 of the Court, allowing intervention as an exception to Section 2, Rule 19 of the Rules of Court that it should be filed at any time before the rendition of judgment. They alleged that, prior to the May 10, 2010 elections, their legal interest in this case was not yet existent. They averred that prior to the May 10, 2010 elections, they were unaware of the proceedings in this case. Even for the sake of argument that they had notice of the pendency of the case, they pointed out that prior to the said elections, Sol T. Matugas was a simple resident of Surigao del Norte, Arturo Carlos A. Egay, Jr. was a member of the Sangguniang Panlalawigan of the Second District of Surigao del Norte, and Mamerto D. Galanida was the Municipal Mayor of Socorro, Surigao del Norte, and that, pursuant to COMELEC Resolution No. 8790, it was only after they were elected as Governor of Surigao del Norte, Vice Governor of Surigao del Norte and Sangguniang Panlalawigan Member of the First District of Surigao del Norte, respectively, that they became possessed with legal interest in this controversy. On October 5, 2010, the Court issued an order for Entry of Judgment, stating that the decision in this case had become final and executory on May 18, 2010. Hence, the above motion. At the outset, it must be clarified that this Resolution delves solely on the instant Urgent Motion to Recall Entry of Judgment of 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,

Navarro vs. Ermita 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 movantsintervenors 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

Navarro vs. Ermita 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 movantsintervenors 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

Navarro vs. Ermita 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.

Navarro vs. Ermita (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.

Navarro vs. Ermita 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

Navarro vs. Ermita 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

Navarro vs. Ermita government unit to be created is a municipality or a component city, respectively. This exemption is absent in the enumeration of the requisites for the creation of a province under Section 461 of the LGC, although it is expressly stated under Article 9(2) of the LGC-IRR.
There appears neither rhyme nor reason why this exemption should apply to cities and municipalities, but not to provinces. In fact, considering the physical configuration of the Philippine archipelago, there is a greater likelihood that islands or group of islands would form part of the land area of a newly-created province than in most cities or municipalities. It is, therefore, logical to infer that the genuine legislative policy decision was expressed in Section 442 (for municipalities) and Section 450 (for component cities) of the LGC, but was inadvertently omitted in Section 461 (for provinces). Thus, when the exemption was expressly provided in Article 9(2) of the LGC-IRR, the inclusion was intended to correct the congressional oversight in Section 461 of the LGC and to reflect the true legislative intent. It would, then, be in order for the Court to uphold the validity of Article 9(2) of the LGC-IRR. This interpretation finds merit when we consider the basic policy considerations underpinning the principle of local autonomy. Section 2 of the LGC, of which paragraph (a) is pertinent to this case, provides Sec. 2. Declaration of Policy. (a) It is hereby declared the policy of the State that the territorial and political subdivisions of the State shall enjoy genuine and meaningful local autonomy to enable them to attain their fullest development as self-reliant communities and make them more effective partners in the attainment of national goals. Toward this end, the State shall provide for a more responsive and accountable local government structure instituted through a system of decentralization whereby local government units shall be given more powers, authority, responsibilities, and resources. The process of decentralization shall proceed from the national government to the local government units. This declaration of policy is echoed in Article 3(a) of the LGC-IRR26 and in the Whereas clauses of Administrative Order No. 270,27 which read WHEREAS, Section 25, Article II of the Constitution mandates that the State shall ensure the autonomy of local governments; WHEREAS, pursuant to this declared policy, Republic Act No. 7160, otherwise known as the Local Government Code of 1991, affirms, among others, that the territorial and political subdivisions of the State shall enjoy genuine and meaningful local autonomy to enable them to attain their fullest development as self-reliant communities and make them more effective partners in the attainment of national goals; WHEREAS, Section 533 of the Local Government Code of 1991 requires the President to convene an Oversight Committee for the purpose of formulating and issuing the appropriate rules and regulations necessary for the efficient and effective implementation of all the provisions of the said Code; and WHEREAS, the Oversight Committee, after due deliberations and consultations with all the concerned sectors of society and consideration of the operative principles of local autonomy as provided in the Local Government Code of 1991, has completed the formulation of the implementing rules and regulations; x x x Consistent with the declared policy to provide local government units genuine and meaningful local autonomy, contiguity and minimum land area requirements for prospective local government units should be liberally construed in order to achieve the desired results. The strict interpretation adopted by the February 10, 2010 Decision could prove to be counter-productive, if not outright absurd, awkward, and impractical. Picture an intended province that consists of several municipalities and component cities which, in themselves, also consist of islands. The component cities and municipalities which consist of islands are exempt from the minimum land area requirement, pursuant to Sections 450 and 442, respectively, of the LGC. Yet, the province would be made to comply with the minimum land area criterion of 2,000 square kilometers, even if it consists of several islands. This would mean that Congress has opted to assign a distinctive preference to create a province with contiguous land area over one composed of islands and negate the greater imperative of development of self-reliant communities, rural progress, and the delivery of basic services to the constituency. This preferential option would prove more difficult and burdensome if the 2,000-square-kilometer territory

Navarro vs. Ermita 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

Navarro vs. Ermita 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

Navarro vs. Ermita realized. So we will look at it with sympathy. We will review our position on the matter, how we arrived at the Senate version and we will adopt an open mind definitely when we come into it.
CHAIRMAN ALFELOR. Kanino yan? CHAIRMAN LINA. Book III. CHAIRMAN ALFELOR. Title? CHAIRMAN LINA. Title IV. CHAIRMAN ALFELOR. I have been pondering on the case of James, especially on economic stimulation of a certain area. Like our case, because I put myself on our province, our province is quite very big. Its composed of four (4) congressional districts and I feel it should be five now. But during the Batasan time, four of us talked and conversed proposing to divide the province into two. There are areas then, when since time immemorial, very few governors ever tread on those areas. That is, maybe youre acquainted with the Bondoc Peninsula of Quezon, fronting that is Ragay Gulf. From Ragay there is a long stretch of coastal area. From Albay going to Ragay, very few governors ever tread [there] before, even today. That area now is infested with NPA. That is the area of Congressman Andaya. Now, we thought that in order to stimulate growth, maybe provincial aid can be extended to these areas. With a big or a large area of a province, a certain administrator or provincial governor definitely will have no sufficient time. For me, if we really would like to stimulate growth, I believe that an area where there is physical or geographical impossibilities, where administrators can penetrate, I think we have to create certain provisions in the law where maybe we can treat it with special considerations. Now, we went over the graduate scale of the Philipppine Local Government Data as far as provinces are concerned. It is very surprising that there are provinces here which only composed of six municipalities, eight municipalities, seven municipalities. Like in Cagayan, Tuguegarao, there are six municipalities. Ah, excuse me, Batanes. CHAIRMAN LINA. Will you look at the case of --- how many municipalities are there in Batanes province? 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.

Navarro vs. Ermita 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 53332 of the LGC. As Section 533 provides, the Oversight Committee shall formulate and issue the appropriate rules and regulations necessary for the efficient and effective implementation of any and all provisions of this Code, thereby ensuring compliance with the principles of local autonomy as defined under the Constitution. It was also mandated by the Constitution that a local government code shall be enacted by Congress, to wit Section 3. The Congress shall enact a local government code which shall provide for a more responsive and accountable local government structure instituted through a system of decentralization with effective mechanisms of recall, initiative, and referendum, allocate among the different local government units their powers, responsibilities, and resources, and provide for the qualifications, election, appointment and removal, term, salaries, powers and functions and duties of local officials, and all other matters relating to the organization and operation of the local units. (Emphasis supplied.) 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

Navarro vs. Ermita 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 ofP82,696,433.23 at the time of its creation, as certified by the Bureau of Local Government Finance, which is four times more than the minimum requirement of P20,000,000.00 for the creation of a province. The delivery of basic services to its constituents has been proven possible and sustainable. Rather than looking at the results of the plebiscite and the May 10, 2010 elections as mere fait accompli circumstances which cannot operate in favor of Dinagats existence as a province, they must be seen from the perspective that Dinagat is ready and capable of becoming a province. This Court should not be instrumental in stunting such capacity. As we have held in League of Cities of the Philippines v. Commission on Elections35 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

Navarro vs. Ermita 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. SO ORDERED.

Miranda vs. SB

EN BANC
JOSE C. MIRANDA, Petitioner, G.R. NO. 154098 Present: DAVIDE, JR., C.J., PUNO, PANGANIBAN, QUISUMBING, YNARES-SANTIAGO, SANDOVAL-GUTIERREZ, CARPIO, AUSTRIA-MARTINEZ, * CORONA, CARPIO MORALES, CALLEJO, SR., AZCUNA, TINGA, CHICO-NAZARIO, and GARCIA, JJ. Promulgated: July 27, 2005 x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

- versus -

HON. SANDIGANBAYAN, OFFICE OF THE OMBUDSMAN, SEC. JOSE D. LINA, JR., in his capacity as Secretary of the DILG, and FAUSTINO DY, JR. in his capacity as Governor of the Province of Isabela, Respondents.

DECISION
PUNO, J.: First, the facts. The Ombudsman placed petitioner Jose C. Miranda (Mayor Miranda) then the mayor of Santiago City, Isabela, under preventive suspension for six months from 25 July 1997 to 25 January 1998 for alleged violations of Republic Act No. 6713, otherwise known as the Code of Conduct and Ethical Standards for Public Officials and Employees. [1] Subsequently, then Vice Mayor Amelita S. Navarro (Vice Mayor Navarro) filed a Complaint with the Office of the

Miranda vs. SB

Ombudsman (Ombudsman) on 1 December 1997 which was docketed as OMB-1-97-2312.[2] In the said Complaint, Vice Mayor Navarro alleged that Mayor Miranda committed the following acts on 24 November 1997 despite the continuing effectivity of the Ombudsmans preventive suspension order: (a) issued a memorandum addressed to Navarro advising her that he was assuming his position as City Mayor;[3] (b) gave directives to the heads of offices and other employees;[4] (c) issued Office Order No. 11-021 which authorized certain persons to start work;[5] and (d) insisted on performing the functions and duties of Mayor despite Navarrros requests to desist from doing so without a valid court order and in spite of the order of Department of Interior and Local Government (DILG) Undersecretary Manuel Sanchez directing him to cease from reassuming the position.[6] Vice Mayor Navarro contended that Mayor Miranda committed the felony of usurpation of authority or official functions under Article 177 of the Revised Penal Code (RPC).[7] In his counter-affidavit, Mayor Miranda asserted that he reassumed office on the advice of his lawyer and in good faith.[8] He contended that under Section 63(b) of the Local Government Code, local elective officials could not be preventively suspended for a period beyond 60 days.[9] He also averred that, on the day he reassumed office, he received a memorandum from DILG Undersecretary Manuel Sanchez instructing him to vacate his office and he immediately complied with the same.[10] Notably, Mayor Mirandas counter-affidavit also stated that he left the mayoralty post after coercion by the Philippine National Police.[11] On 28 October 1998, the Ombudsman filed with the Sandiganbayan an Information against Mayor Miranda for violation of Article 177 of the RPC, penalizing usurpation of authority. On 20 November 1998, the Sandiganbayan ordered the Office of Special Prosecutor to conduct a reinvestigation of the case in light of the manifestations made by prosecution and defense counsel.[12] After reinvestigation, Special Prosecution Officer Rodrigo V. Coquia (Coquia) recommended the dismissal of the case in a Resolution dated 14 September 2000. [13] Coquia held that Miranda reassumed his office in good faith and on mistake of fact due to the difficult questions of law involved.[14]

Miranda vs. SB

Then Ombudsman Aniano A. Desierto (Ombudsman Desierto) referred Coquias resolution to the Ombudsmans Chief Legal Counsel for review. The Chief Legal Counsel disagreed with Coquias findings and recommended the filing of the case against Mayor Miranda. [15] He pointed out that Mayor Mirandas invocation of good faith was belied by the fact that he received a memorandum from the DILG informing him that his view of the preventive suspension period was untenable and that he should serve out its remaining period. [16] He further noted that Miranda violated the orders of both the Ombudsman and the DILG.[17] Ombudsman Desierto adopted the Chief Legal Counsels recommendation,[18] and the case was re-raffled to Special Prosecution Officer Evelyn T. Lucero. Subsequently, the prosecution filed an amended Information with the Sandiganbayan,[19] to which the petitioner interposed a negative plea.[20] On 28 November 2001, the prosecution filed before the Sandiganbayan a motion to suspend Mayor Miranda pendente lite based on Section 13 of Republic Act No. 3019 (R.A. No. 3019), otherwise known as the Anti-Graft and Corrupt Practices Act.[21] Miranda opposed the motion on the ground that the offense of usurpation of authority or official functions under Article 177 of the RPC is not embraced by Section 13 of R.A. No. 3019 which only contemplates offenses enumerated under R.A. No. 3019, Title VII, Book II of the RPC or which involve fraud upon government or public funds or property.[22] In a Resolution dated 4 February 2002, the Sandiganbayan preventively suspended Mayor Miranda from office for 90 days.[23] The anti-graft court held that a violation of Article 177 of the RPC involves fraud which in a general sense is deemed to comprise anything calculated to deceive, including all acts, omissions, and concealment involving a breach of legal or equitable duty, trust or confidence justly reposed, resulting in damage to another or by which an undue and unconscious advantage is taken of another. [24] It further ruled that Mirandas act fell within the catch-all provision x x x or for any offense involving fraud upon government.[25] Mirandas motion for reconsideration was denied in the Sandiganbayans Resolution dated 17 June 2002.[26] Hence, the present petition assailing the Sandiganbayans orders of preventive suspension. The petitioner contends that the Sandiganbayan gravely abused its discretion when it preventively suspended him on a ground not authorized by law and raises

Miranda vs. SB

the following issues: (1) whether Section 13 of R.A. No. 3019 applies only to fraudulent acts involving public funds or property; and (2) whether the crime of usurpation of authority or official functions involves fraud upon government or public funds or property found in Section 13 of R.A. No. 3019. We rule in the negative. First. Section 13 of R.A. No. 3019, as amended, provides: Section 13. Suspension and loss of benefits. Any incumbent public officer against whom any criminal prosecution under a valid information under this Act or under Title 7, Book II of the Revised Penal Code or for any offense involving fraud upon government or public funds or property whether as a simple or as a complex offense and in whatever stage of execution and mode of participation, is pending in court, shall be suspended from office. Should he be convicted by final judgment, he shall lose all retirement or gratuity benefits under any law, but if he is acquitted, he shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during suspension, unless in the meantime administrative proceedings have been filed against him. In the event that such convicted officer, who may have already been separated from the service, has already received such benefits he shall be liable to restitute the same to the Government.

The Sandiganbayan properly construed Section 13 of R.A. No. 3019 as covering two types of offenses: (1) any offense involving fraud on the government; and (2) any offense involving public funds or property. Contrary to the submission of the petitioner, nothing in R.A. No. 3019 evinces any legislative intent to limit Section 13 only to acts involving fraud on public funds or property. The phrase any offense involving fraud upon government or public funds or property is clear and categorical. To limit the use of government as an adjective that qualifies funds is baseless. The word public precedes funds and distinguishes the same from private funds. To qualify further public funds as government funds, as petitioner claims is the laws intent, is plainly superfluous. We are bound by the rule that a statute should be construed reasonably with reference to its controlling purpose and its provisions should not be given a meaning that is

Miranda vs. SB

inconsistent with its scope and object. R.A. No. 3019, commonly known as the Anti-Graft and Corrupt Practices Act, should be read to protect the State from fraud by its own officials. Second. We further hold that the Sandiganbayan did not gravely abuse its discretion when it ruled that petitioners act fell within the catch -all provision x x x or for any offense involving fraud upon government. The term fraud is defined, viz.: An instance or an act of trickery or deceit esp. when involving misrepresentation: an act of deluding[27]

It is obvious to the eyes that the phrase fraud upon government means any instance or act of trickery or deceit against the government. It cannot be read restrictively so as to be equivalent to malversation of funds as this is covered by the preceding phrase any offense involving . . . public funds or property. It ought to follow that fraud upon government was committed wh en the petitioner allegedly assumed the duties and performed acts pertaining to the Office of the Mayor under pretense of official position. The dissent opines that fraud upon government is not necessarily an essential element of the crime of usurpation of authority. The submission may be correct as a general proposition but general propositions hardly decide a case. In the case at bar, the issue is whether the alleged acts of usurpation of authority committed by the petitioner involve fraud upon governm ent or public funds or property as the term is understood under Section 13 of R.A. No. 3019. In ruling in the affirmative, the Sandiganbayan held: Let us take a look at the acts complained of as alleged in the Amended Information dated July 27, 2001: x x x the above-named accused, a public officer, being then the elected City Mayor of Santiago City, while under preventive suspension did then and there, willfully, unlawfully and knowingly and under pretense of official position, assume the duties and functions of the Office of the Mayor, issue directives and memoranda, and appoint certain persons to various positions in the City Government and perform acts pertaining to an office to which he knowingly was deprived of. Moreover, in private complainant Amelita S. Navarros Affidavit of Complaint dated November 26, 1997, she said: x x x, he proceeded to his office and started

Miranda vs. SB

giving directives to the various heads of office and other employees, the unexpected acts of respondents had caused serious disruptions in the day to day affairs of the city government. Accuseds acts therefore in assuming the duties and function of the Office of the Mayor despite his suspension from said office resulted to a clear disruption of office and worst, a chaotic situation in the affairs of the government as the employees, as well as the public, suffered confusion as to who is the head of the Office. This actuation of herein accused constitutes fraud which in general sense is deemed to comprise anything calculated to deceive, including all acts, omissions, and concealment involving a breach of legal or equitable duty, trust or confidence justly reposed, resulting in damage to another or by which an undue and unconscious advantage is taken of another (37 Am. Jur. 2d 19 at Sec. 19). Hence, the act complained of against accused herein falls in the catchall provision x x x or for any offense involving fraud upon government x x x. Moreover, the firmly entrenched doctrine which was held by the Highest Tribunal in a long line of cases is that x x x under Section 13 of the Anti -Graft and Corrupt Practices Law, the suspension of a public officer is mandatory after a determination has been made of the validity of the Information x x x. In fact, as early as 1984 in the case of Bayot v. Sandiganbayan, 128 SCRA 383, the Honorable Supreme Court speaking thru Justice Relova said: Once the information is found to be sufficient in form and substance, then the Court must issue the order of suspension as a matter of course. There are no ifs and buts about it. x x x After a perusal of the amended information herein, it clearly appeared that the same was apparently valid for it conforms to the requirements laid down under Section 6[,] Rule 110 of the Rules of Court. In fact, accused herein interposed a negative plea thereto thereby tacitly acquiescing to the validity of the said Information. There being no valid ground raised by the accused sufficient enough to warrant denial of the prayer of the prosecution in its Motion to Suspend Accused Pende[n]te Lite (sic) and in consonance with the imperious mandate of the law, the said prayer should be accorded affirmative relief.[28] (Citations omitted) In denying petitioners Motion for Reconsideration, the Sandiganbayan further held: Accused in his motion substantially alleged that Article 177 (Usurpation of Authority and Official Function) of the Revised Penal Code, which is the charge against herein accused, does not fall under the catchall provision of Section 13 of Republic Act No. 3019 x x x or for any offense involving fraud upon government or

Miranda vs. SB

public funds or property x x x. He said that the acts complained of as alleged in the Information do not constitute fraud upon government or public fund or property. Though the argument by the accused seems plausible, this Court is still inclined to uphold its ruling suspending accused pendente lite. The accused argued that the fraud contemplated in the law is one involving (1) government funds or property; and (2) public funds or property. This is precisely availing in the case at bar. The Information in herein case, says: x x x accused x x x assume the duties and functi ons of the Office of the Mayor, issue directives and memoranda and appoint certain persons to various positions in the city government, and perform acts pertaining to an office to which he knowingly was deprived of. When accused -mayor appointed persons in various positions, he indirectly dealt with the citys funds as those persons appointed will be given their respective salaries, benefits and other monetary consideration which will be paid wholly or mainly out of the citys funds. Additionally, when he performed acts pertaining to the Office of the Mayor, i.e.[,] approval of vouchers, and payment of other expenses which is subject to proof, he likewise indirectly dealt with the funds of the city. Moreover, as the prosecution said, when accused Miranda, willfully and knowingly, during the effectivity of his suspension barged into the City Hall, issued orders and directives and performed functions as City Mayor, he was sending the unwritten yet visible message that he was authorized to do and function as such. x x x. We hold this as a fraud upon government resulting in the chaos or confusion albeit temporary, as the employees would be in a quandary whom to follow or obey. Hence, considering that the charge herein evidently falls within the compass of the suspension provision invoked by the prosecution, there is no cogent reason for this Court to depart from its previous ruling. Further, considering the mandatory tenor of Section 13[,] Republic Act No. 3019, the motion for reconsideration is hereby denied. Accordingly, the Motion for Reconsideration is denied for lack of merit.[29]

This Court finds no reason to disagree with the Sandiganbayan. Its conclusions are amply supported by the record. Additionally, the issue of whether petitioner committed fraud upon the government or public funds or property is essentially factual. In a special civil action for certiorari, the only question that may be raised is whether or not the respondent acted without or in excess of jurisdiction or with grave abuse of discretion. The Court cannot correct errors of fact or law which do not amount to grave abuse of discretion.[30]

Miranda vs. SB

The dissenting opinion, however, says there was no fraud. It holds that it would be fraud of public funds if these public officials just collected their salaries without rendering service to the government. It further asserts that fraud upon government must be read so as to require that malversation of funds was committed.[31] This is a complete volte face from its claim that Section 13 of R.A. No. 3019 covers two types of offenses: (1) any offense involving fraud upon the government; and (2) any offense involving public funds or property. [32] What is more, adopting the dissenting opinions line of reasoning would render superfluous the phrase fraud upon government as malversation is subsumed by an y offense involving public funds or property. Third. We are not a bit persuaded by the posture of the petitioner that he reassumed office under an honest belief that he was no longer under preventive suspension. Petitioners pretense cannot stand scrutiny. Petitioners own affidavit states:[33] 8. That on November 24, 1997, at that time, (sic) I had already served my single preventive suspension for a total number of ONE HUNDRED TWENTY (120) days more or less counted from July 24, 1997, which far exceeds the allowable period of 60 days as maximum preventive suspension, for a single suspension for a local elective official like me as provided for under the Local Government Code of 1991 (sic) on the same date, November 24, 1997 in good faith and upon the advise (sic) of my lawyers, I notified both the Ombudsman and DILG of my intention to assume my office as the duly elected City Mayor of Santiago City; 9. That earlier on November 24, 1997 I started to reassume my office and functions as City Mayor of Santiago City; surprisingly on the same date, November 24, 1997 I received a memorandum issued by Undersecretary Manuel R. Sanchez of DILG instructing me to cease and desist from my plan to reassume the functions and duties of my office; 10. For less than a week, after November 24, 1997 Vice-Mayor AMELITA NAVARRO relentlessly harassed and threatened me and my constituents with bodily harm using the strong arm of the law thru the brute force of the PNP courteousy (sic) of Undersecretary Manuel R. Sanchez I was constrained to ceased (sic) from performing my duties and functions to avoid any possible unfortunate incident that may happen to me and any constituents; x x x.[34] (Emphases supplied)

Miranda vs. SB

By petitioners own admission, he refused to leave his position despite the memorandum of Undersecretary Sanchez and left only a few days after receipt thereof due to the coercion of the Philippine National Police. This contradicts his assertion that he immediately complied with the memorandum of Undersecretary Sanchez.[35] Petitioner cannot escape from his own admission. To be sure, petitioners honest belief defense is old hat. In the 1956 case of People v. Hilvano,[36] the facts are: When Mayor Fidencio Latorre of Villareal, Samar, departed for Manila on official business early in the morning of September 22, 1952, he designated the herein defendant Francisco Hilvano, councilor, to discharge the duties of his office. Later, during office hours on that same day, Vice-Mayor Juan Latorre went to the municipal building; and having found Hilvano acting in the place of the Mayor, he served written notices to the corresponding municipal officers, including Hilvano, that he (Juan Latorre) as Vice-Mayor was assuming the duties of the absent mayor. However, Hilvano refused to yield, arguing that he had been designated by the Mayor. Whereupon the Vice-Mayor sent a telegram to the Executive Secretary informing the latter of the controversy. And the said Secretary replied by letter, that under sec. 2195 of the Revised Administrative Code it was the Vice-Mayor who should discharge the duties of the Mayor during the latters temporary absence. Shown this official pronouncement, Hilvano still refused to surrender the position. Again the Vice-Mayor sought the opinion of the Provincial Fiscal, who by letter (Exhibit D), replied that the Vice-Mayor had the right to the office. Notwithstanding such opinion which was exhibited to him Hilvano declined to vacate the post, which he held for about a month, appointing some policemen, solemnizing marriages and collecting the corresponding salary for mayor. Wherefore Francisco Hilvano was prosecuted and after trial was convicted of usurpation of public authority under Republic Act No. 10. He appealed in due time. In rejecting the defense of the accused Hilvano, we ruled:[37] There is no excuse for defendant-appellant. In the beginning he might have pleaded good faith, invoking the designation by the Mayor; but after he had been shown the letter of the Executive Secretary and the opinion of the provincial fiscal, he had no right thereafter stubbornly to stick to the position. He was rightfully convicted.

Miranda vs. SB

Petitioners excuse for violating the order of preventive suspension is too f limsy to merit even a side-glance. He alleged that he merely followed the advice of his lawyer. If petitioner and his counsel had an iota of respect for the rule of law , they should have assailed the validity of the order of suspension in court instead of taking the law into their own hands. Fourth. It should be stressed that petitioner was suspended by the Sandiganbayan.

Under Section 13 of R.A. No. 3019, this suspension is mandatory if the information is sufficient. Understandably, the dissent argues that the Amended Information is insufficient in form as it should have expressly and clearly stated that Miranda re -assumed office to defraud the government or that in re-assuming office Miranda committed acts that defrauded the government[38] and that it is improper to take into account the petitioners admissions in his affidavit for this purpose. With due respect, the dissent is way off-line. The records will show that petitioner did not file a motion to quash the information or a motion for bill of particulars before pleading to the information. It is basic that entering a plea waives any objection the petitioner may have to the validity of the information except on the following grounds: (1) the information charges no offense; (2) the trial court has no jurisdiction over the offense charged; (3) the penalty or the offense has been extinguished; and (4) double jeopardy has attached. [39] Objections to the sufficiency of the allegations in the Amended Information do not fall among the exceptions to the rule. They fall under the objection that the information does not conform substantially to the prescribed form.[40] Needless to state, the petitioner has by his acts acquiesced to the validity and sufficiency of the Amended Information. It is, thus, incorrect for the dissenting opinion to peddle the proposition that the petitioner has been deprived of his constitutional right to be apprised of the nature and cause of the accusation against him. Worse, it is improper for the dissenting opinion to raise this issue motu proprio. Under our Rules of Court, it is the petitioner who should raise this objection in a motion to quash or motion for bill of particulars before entering his plea.[41] The irregular procedure followed by the dissent would encourage the pernicious practice of sandbagging where counsel foregoes raising a pleading defect before trial where it can be e asily corrected only to raise the defect later in the hope of obtaining an arrest of judgment or new trial

Miranda vs. SB

from a sympathetic magistrate.[42] It is precisely this evil that is addressed by Rule 117, Section 9 of our Revised Rules of Criminal Procedure. Even assuming for the nonce, that the objection to the sufficiency of the information was raised in a timely fashion by the petitioner, the dissenting opinions arguments still do not convince. The validity or sufficiency of allegations in an information is determined according to the provisions of Section 9 of the Revised Rules of Criminal Procedure, viz: SECTION 9. Cause of the Accusation. The acts or omissions complained of as constituting the offense and the qualifying and aggravating circumstances must be stated in ordinary and concise language and not necessarily in the language used in the statute but in terms sufficient to enable a person of common understanding to know what offense is being charged as well as its qualifying and aggravating circumstances and for the court to pronounce judgment.[43]

The test is whether the crime is described in intelligible terms with such particularity as to apprise the accused, with reasonable certainty, of the offense charged. The raison detre of the rule is to enable the accused to suitably prepare his defense.[44] A perusal of the Amended Information will bear out that it has hurdled this legal bar. We quote its contents: That on or about 24 November 1997, in the City of Santiago, Isabela, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, a public officer, being then the elected City Mayor of Santiago City, while under preventive suspension, did, then and there, willfully, unlawfully, and knowingly and under pretense of official position, assume the duties and function of the Office of the Mayor, issue directives and memoranda, and appoint certain persons to various positions in the city government, and perform acts pertaining to an office to which he knowingly was deprived of.[45]

Using this test, it cannot be said that the Amended Information failed to properly apprise the petitioner of the charge against him. The information charged the petitioner with assuming the duties and performing acts pertaining to the office of Mayor willfully, unlawfully and knowingly under the pretense of official position. Moreover, it states some of the specific acts which constitute usurpation of official functions, namely, issuing directives and memoranda and appointing certain persons to various positions in the city government. These allegations are clear

Miranda vs. SB

enough for a layman to understand. Indeed, even the petitioner does not complain about their ambiguity. Only the dissent does. Fifth. The dissenting opinion also contends that the Ombudsmans authority to preventively suspend local elective officials for 6 months is limited by Section 63(b) of the Local Government Code. Under the latter law, petitioner can only be suspended for a maximum period of 60 days. It then jumps to the conclusion that petitioner could not have usurped authority because he reassumed office after 60 days.[46] With due respect, the dissent fails to focus on the proper issue. The issue before this Court is whether the Sandiganbayan committed a grave abuse of discretion in suspending the petitioner for 90 days. The validity of the Ombudsmans order of preventive suspension of the petitioner for 6 months is not the one assailed in the case at bar. The irrelevance of the suspension order of the Ombudsman notwithstanding, the reliance of the dissenting opinion on Garcia v.

Mojica is inapropos. In Garcia, we held: Given these findings, we cannot say now that there is no evidence sufficiently strong to justify the imposition of preventive suspension against petitioner. But considering its purpose and the circumstances in the case brought before us, it does appear to us that the imposition of the maximum period of six months is unwarranted. On behalf of respondents, the Solicitor General stated during his oral argument at the hearing that the documents mentioned in respondents' comment (such as purchase orders, purchase requests, and disbursement vouchers), documents that show petitioner's guilt, were obtained after petitioner had been suspended. Even if an afterthought, he claimed they strengthen the evidence of respondents against petitioner. If the purpose of the preventive suspension was to enable the investigating authority to gather documents without intervention from petitioner, then, from respondents' submission, we can only conclude that this purpose was already achieved, during the nearly month-long suspension of petitioner from June 25 to July 19, 1999. Granting that now the evidence against petitioner is already strong, even without conceding that initially it was weak, it is clear to us that the maximum six-month period is excessive and definitely longer than necessary for the Ombudsman to make its legitimate case against petitioner. We must conclude that the period during which petitioner was already preventively suspended, has been sufficient for the lawful purpose of preventing

Miranda vs. SB

petitioner from hiding and destroying needed documents, or harassing and preventing witnesses who wish to appear against him. We reach the foregoing conclusion, however, without necessarily subscribing to petitioner's claim that the Local Government Code, which he averred should apply to this case of an elective local official, has been violated. True, under said Code, preventive suspension may only be imposed after the issues are joined, and only for a maximum period of sixty days. Here, petitioner was suspended without having had the chance to refute first the charges against him, and for the maximum period of six months provided by the Ombudsman Law. But as respondents argue, administrative complaints commenced under the Ombudsman Law are distinct from those initiated under the Local Government Code. Respondents point out that the shorter period of suspension under the Local Government Code is intended to limit the period of suspension that may be imposed by a mayor, a governor, or the President, who may be motivated by partisan political considerations. In contrast the Ombudsman, who can impose a longer period of preventive suspension, is not likely to be similarly motivated because it is a constitutional body. The distinction is valid but not decisive, in our view, of whether there has been grave abuse of discretion in a specific case of preventive suspension. [47] (Emphases supplied)

Nowhere in Garcia is it stated that the limits provided in the Local Government Code apply to the Ombudsman. In fact, the Court expressly stated that its decision was rendered without subscribing to the petitioners claim that the Local Government Code had been violated. In fine, the Court only ruled that the Ombudsman acted with grave abuse of discretion in imposing a 6month preventive suspension since it was admitted that the documents required were already obtained by 19 July 1999 or 24 days after the imposition of the preventive suspension. Therefore, the purpose for which the suspension was imposed was already served. The dissenting opinion also cites the case of Rios v. Sandiganbayan[48] as basis for assailing the Ombudsmans order of preventive suspension.Rios is neither here nor there since the powers of the Sandiganbayan were at issue in that case, not those of the Ombudsman. It is also worth noting thatRios cited Section 63 of the Local Government Code as its legal basis. This provision provides: SECTION 63. Preventive Suspension. (a) Preventive suspension may be imposed:

Miranda vs. SB

(1) (2) (3) (b)

By the President, if the respondent is an elective official of a province, a highly urbanized or an independent component city; By the governor, if the respondent is an elective official of a component city or municipality; or By the mayor, if the respondent is an elective official of the barangay.

(c)

Preventive suspension may be imposed at any time after the issues are joined, when the evidence of guilt is strong, and given the gravity of the offense, there is great probability that the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence: Provided, That, any single preventive suspension of local elective officials shall not extend beyond sixty (60) days: Provided, further, That in the event that several administrative cases are filed against an elective official, he cannot be preventively suspended for more than ninety (90) days within a single year on the same ground or grounds existing and known at the time of the first suspension. Upon expiration of the preventive suspension, the suspended elective official shall be deemed reinstated in office without prejudice to the continuation of the proceedings against him, which shall be terminated within one hundred twenty (120) days from the time he was formally notified of the case against him. However, if the delay in the proceedings of the case is due to his fault, neglect, or request, other than the appeal duly filed, the duration of such delay shall not be counted in computing the time of termination of the case.

It is plain that the provision was only meant as a cap on the discretionary power of the President, governor and mayor to impose excessively long preventive suspensions. The Ombudsman is not mentioned in the said provision and was not meant to be governed thereby. Indeed, the reason is not hard to distill. The President, governor and mayor are political personages. As such, the possibility of extraneous factors influencing their decision to impose preventive suspensions is not remote. The Ombudsman, on the other hand, is not subject to political pressure given the independence of the office which is protected by no less than the Constitution. This view was embraced by the Court in Hagad v. Gozo-Dadole[49] and Garcia v. Mojica.[50] In Hagad, we held: Respondent local officials contend that the 6-month preventive suspension without pay under Section 24 of the Ombudsman Act is much too repugnant to the 60-day preventive suspension provided by Section 63 of the Local

Miranda vs. SB

Government Code to even now maintain its application. The two provisions govern differently. In order to justify the preventive suspension of a public official under Section 24 of R.A. No. 6770, the evidence of guilt should be strong, and (a) the charge against the officer or employee should involve dishonestly, oppression or grave misconduct or neglect in the performance of duty; (b) that the charges should warrant removal from the service; or (c) the respondent's continued stay in office would prejudice the case filed against him. The Ombudsman can impose the 6-month preventive suspension to all public officials, whether elective or appointive, who are under investigation. Upon the other hand, in imposing the shorter period of sixty (60) days of preventive suspension prescribed in the Local Government Code of 1991 on an elective local official (at any time after the issues are joined), it would be enough that (a) there is reasonable ground to believe that the respondent has committed the act or acts complained of, (b) the evidence of culpability is strong,(c) the gravity of the offense so warrants, or (d) the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence.[51]

In the same vein, we made the following observations in Garcia, viz.: Respondents may be correct in pointing out the reason for the shorter period of preventive suspension imposable under the Local Government Code. Political color could taint the exercise of the power to suspend local officials by the mayor, governor, or President's office.In contrast the Ombudsman, considering the constitutional origin of his Office, always ought to be insulated from the vagaries of politics, as respondents would have us believe. x x x It was also argued in Hagad, that the six-month preventive suspension under the Ombudsman Law is "much too repugnant" to the 60-day period that may be imposed under the Local Government Code. But per J. Vitug, "the two provisions govern differently."[52] (Emphases supplied)

There is no reason to reverse this ruling. Our above ruling is in accord with the intent of the law. It bears emphasis that Senator Pimentel[53] explained during the Senate deliberations that the purpose of Section 63 of the Code is to prevent the abuse of the power of preventive suspension by members of the executive branch, to wit: The President.[54] I recall that in the case of Iloilo City Mayor Ganzon, he challenged the right of the President, acting through the Secretary of Local Government, I think, Luis Santos, to suspend him - -

Miranda vs. SB

Senator Pimentel. That is true, Mr. President. The President. - - contending that under the new Constitution, even the President does not have that right. Senator Pimentel. Now, as far as we are concerned, the Senate Committee is ready to adopt a more stringent rule regarding the power of removal and suspension by the Office of the President over local government officials , Mr. President. We would only wish to point out that in a subsequent section, we have provided for the power of suspension of local government officials to be limited only to 60 days and not more than 90 days in any one year, regardless of the number of administrative charges that may be filed against a local government official. We, in fact, had in mind the case of Mayor Ganzon of Iloilo where the Secretary of Local Government sort of serialized the filing of charges against him so that he can be continuously suspended when one case is filed right after the other, Mr. President. The President. Can that be done under this new Code? Senator Pimentel. Under our proposal, that can no longer be done, Mr. President.[55]

Verily, Section 63 of the Local Government Code does not govern preventive suspensions imposed by the Ombudsman, which is a constitutionally created office and independent from the Executive branch of government.[56] The Ombudsmans power of preventive suspension is governed by Republic Act No. 6770,[57] otherwise known as The Ombudsman Act of 1989, which provides: SECTION 24. Preventive Suspension. The Ombudsman or his Deputy may preventively suspend any officer or employee under his authority pending an investigation, if in his judgment the evidence of guilt is strong, and (a) the charge against such officer or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal from the service; or (c) the respondent's continued stay in office may prejudice the case filed against him. The preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but not more than six months, without pay, except when the delay in the disposition of the case by the Office of the Ombudsman is due to the fault, negligence or petition of the respondent, in which case the period of such delay

Miranda vs. SB

shall not be counted in computing provided.[58] (Emphasis supplied)

the

period

of

suspension

herein

The six-month period of preventive suspension imposed by the Ombudsman [59] was indubitably within the limit provided by its enabling law. This enabling law has not been modified by the legislature. The dissenting opinion submits that providing for a six-month limit for the Ombudsman while keeping the limit for executive officials at sixty days violates the constitutional proscription against equal protection of the law. In essence, it avers that there is no substantial distinction between preventive suspensions handed down by the Ombudsman and those imposed by executive officials. On the contrary, there is a world of difference between them. The Constitution has endowed the Ombudsman with unique safeguards to ensure immunity from political pressure. Among these statutory protections are fiscal autonomy,[60] fixed term of office[61] and classification as an impeachable officer.[62] This much was recognized by this Court in the earlier cited case ofGarcia v. Mojica.[63] Moreover, there are stricter safeguards for imposition of preventive suspension by the Ombudsman. The Ombudsman Act of 1989 requires that the Ombudsman determine: (1) that the evidence of guilt is strong; and (2) that any of the following circumstances are present: (a) the charge against such officer or employee involves dishonesty, oppression, or grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal from the service; or (c) the respondent's continued stay in office may prejudice the case filed against him.[64] The dissenting opinion finally points out the possibility of abuse by the Ombudsman in imposing preventive suspensions. The short reply is that all powers are susceptible of abuse but that is no reason to strike down the grant of power. Suffice it to say that the proper remedies against abuse in the exercise of power are a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure or amendment of the Ombudsmans enabling law by the legislature, not a contortionist statutory interpretation by this Court.

Miranda vs. SB

IN VIEW WHEREOF, the instant petition is DISMISSED there being no showing that the Sandiganbayan gravely abused its discretion in issuing its Resolution of 4 February 2002, preventively suspending the petitioner for 90 days. SO ORDERED.

Atienza vs. Villarosa

EN BANC

[G.R. No. 161081. May 10, 2005]

RAMON M. ATIENZA, in his capacity as Vice-Governor of the Province of Occidental Mindoro, petitioner, vs. JOSE T. VILLAROSA, in his capacity as Governor of the Province of Occidental Mindoro, respondent. DECISION
CALLEJO, SR., J.:

Before the Court is the petition for review on certiorari filed by Ramon M. Atienza, in his capacity as Vice-Governor of the Province of Occidental Mindoro, seeking to reverse and set aside the Decision[1] dated November 28, 2003 of the Court of Appeals in CA-G.R. SP No. 72069. The assailed decision dismissed the petition for prohibition under Rule 65 of the Rules of Court filed by petitioner Atienza which had sought to enjoin the implementation of the Memoranda dated June 25, 2002 and July 1, 2002 issued by Jose T. Villarosa, Governor of the same province. The present case arose from the following undisputed facts: Petitioner Atienza and respondent Villarosa were the Vice-Governor and Governor, respectively, of the Province of Occidental Mindoro. On June 26, 2002, the petitioner Vice-Governor received the Memorandum dated June 25, 2002 issued by the respondent Gove rnor concerning the AUTHORITY TO SIGN PURCHASE ORDERS OF SUPPLIES, MATERIALS, EQUIPMENT[S], INCLUDING FUEL, REPAIRS AND MAINTENANCE OF THE SANGGUNIANG PANLALAWIGAN. The said memorandum reads:

For proper coordination and to ensure efficient and effective local government administration particularly on matters pertaining to supply and property management, effective immediately, all Purchase Orders issued in connection with the procurement of supplies, materials and equipment[s] including fuel, repairs and maintenance needed in the transaction of public business or in the pursuit of any undertaking, project or activity of the Sangguniang Panlalawigan, this province, shall be approved by the undersigned in his capacity as the local chief executive of the province. The provision of DILG Opinion No. 148-1993 which states that the authority to sign Purchase Orders of supplies, materials and equipment[s] of the Sanggunian belongs to the local chief executive, serves as basis of this memorandum. For strict compliance.
[2]

In reply to the above memorandum, the petitioner Vice-Governor wrote the respondent Governor stating that:

We are of the opinion that purchase orders for supplies, materials and equipment are included under those as authorized for signature by the Vice-chief executive of the Sanggunian on the basis of

Atienza vs. Villarosa

the DILG Opinion No. 96-1995 as affirmed by the COA Opinions on June 28, April 11 and February 9, 1994 and coursing it to the Governor for his approval is no longer necessary, the fact that [Secs.] 466 and 468, RA 7160 already provides for the separation of powers between the executive and legislative. Such authority even include everything necessary for the legislative research program of the Sanggunian.
[3]

Unimpressed, the respondent Governor issued the Memorandum dated July 1, 2002 relating to the TERMINATION OF CONTRACT OF SERVICES OF CASUAL/JOB ORDER EMPLOYEES AND REAPPOINTMENT OF THE RESPECTIVE RECOMMENDEES. The said memorandum reads:

For faithful and appropriate enforcement and execution of laws and issuances and to promote efficiency in the government service, effective immediately, all existing contract of employment casual/job order basis and reappointment of the recommendees entered into by Vice-Governor Ramon M. Atienza are hereby terminated for being unauthorized. Aside from being signed by the unauthorized signatory, the following facts regarding the appointments were considered: 1. The appointment of 28 clerks on top of existing permanent employees is a clear manifestation of an excessive and bloated bureaucracy; 2. The appointment of an X-ray Technician detailed at the Provincial Health Office and some clerks detailed at various offices in the province were not proper to be assigned by the ViceGovernor; 3. The appointment of 30 messengers, utility workers and drivers ran counter to COA Opinion as cited in the letter of the undersigned dated 28 June 2002, addressed to the Vice-Governor. However, in order to accommodate the Vice-Governor and the members of the Sangguniang Panlalawigan, the undersigned, in his capacity as the local chief executive of the province, will allow four (4) casual/job order employees to be assigned to the Vice-Governor and one (1) casual/job order employee to be assigned to each member of the Sangguniang Panlalawigan. The Vice-Governor and all the Sanggunian Members are hereby directed to submit immediately the names of their recommendees to the undersigned for immediate approval of their respective appointments. Please be guided accordingly.
[4]

On July 3, 2002, the respondent Governor issued another Memorandum regarding the ENFORCIBILITY (sic) OF PREVIOUS MEMORANDA ISSUED ON JUNE 20, 26 AND JULY 1, 2002. It provides that:

Please be properly advised that the Memoranda dated June 20, 26 and July 1, 2002 issued by the undersigned regarding the issuance of permit to travel and authority to sign Purchase Orders of

Atienza vs. Villarosa

supplies, materials, equipment, including fuel, repairs and maintenance of the Sangguniang Panlalawigan, is to be strictly adhered to for compliance. Likewise for strict compliance is the Memorandum dated July 1, 2002 with reference to the Cancellation of the Appointment of Casual/Job Order Employees of the Sangguniang Panlalawigan Members/Office of the Vice-Governor previously signed by Vice-Governor Ramon M. Atienza. Please be guided accordingly.
[5]

In his Letter dated July 9, 2002, the petitioner Vice-Governor invoked the principle of separation of powers as applied to the local government units, i.e., the respondent, as the Governor, the head of the executive branch, and the petitioner, as the Vice-Governor, the head of the legislative branch, which is the Sangguniang Panlalawigan. The petitioner Vice-Governor reiterated his request for the respondent to make a deeper study on the matter before implementing his memoranda. The request, however, went unheeded as the respondent Governor insisted on obliging the department heads of the provincial government to comply with the memoranda. The petitioner Vice-Governor thus filed with the Court of Appeals the petition for prohibition assailing as having been issued with grave abuse of discretion the respondent Governors Memora nda dated June 25, 2002 and July 1, 2002. The petitioner Vice-Governor claimed that these memoranda excluded him from the use and enjoyment of his office in violation of the pertinent provisions of Republic Act No. 7160, or the Local Government Code of 1991, and its implementing rules and regulations. It was prayed that the respondent Governor be enjoined from implementing the assailed memoranda. The appellate court, in its Decision dated November 28, 2003, dismissed the petition for prohibition. Citing Section 344[6] of Rep. Act No. 7160, the CA upheld the authority of the respondent Governor to issue the Memorandum dated June 25, 2002 as it recognized his authority to approve the purchase orders. The said provision provides in part that approval of the disbursement voucher by the local chief executive himself shall be required whenever local funds are disbursed. The CA explained that Section 466(a)(1)[7] of the same Code, relied upon by the petitioner ViceGovernor, speaks of the authority of the Vice-Governor to sign allwarrants drawn on the public treasury for all expenditures appropriated for the operation of the sangguniang panlalawigan. In declaring this provision inapplicable, the CA reasoned that the approval of purchase orders is different from the power of the Vice-Governor to sign warrants drawn against the public treasury. Section 361[8] was, likewise, held to be inapplicable ratiocinating, thus:

[R]equisitioning, which is provided under Section 361 of RA 7160, is the act of requiring that something be furnished. In the procurement function, it is the submission of written requests for supplies and materials and the like. It could be inferred that, in the scheme of things, approval of purchase requests is different from approval of purchase orders. Thus, the inapplicability of Section 361.
Anent the Memorandum dated July 1, 2002, the CA ruled that the issue on whether it could be enjoined had already been rendered moot and academic. The CA pointed out that the subject of the said memorandum could no longer be enjoined or restrained as the termination of the employees had already been effected. It opined that where the act sought to be enjoined in the prohibition proceedings had already been performed and there is nothing more to restrain, the case is already moot and academic.

Atienza vs. Villarosa

The petitioner Vice-Governor now seeks recourse to this Court alleging that the appellate court committed reversible error in ruling that it is the Governor, and not the Vice-Governor, who has the authority to sign purchase orders of supplies, materials, equipment, including fuel, repairs and maintenance of the Sangguniang Panlalawigan. The petitioner Vice-Governor, likewise, takes exception to the holding of the CA that the issue relating to the July 1, 2002 Memorandum had been rendered moot and academic. He points out that the appointment of casual/job order employees is exercised by the appointing authority every six months in the case of casual employees and per job order as to job order employees. Thus, while the July 1, 2002 Memorandum had already been implemented, what is being sought to be enjoined is the respondent Governors continued usurpation of the petitioner Vice Governors authority to appoint the employees of the Sangguniang Panlalawigan under the pertinent provisions of Rep. Act No. 7160. For his part, the respondent Governor maintains that his Memoranda dated June 25, 2002 and July 1, 2002 are valid. He asserts that the approval of purchase orders is different from the power of the Vice-Governor to sign warrants drawn against the provincial treasury under Section 466(a)(1) of Rep. Act No. 7160. Rather, he insists on the application of the last clause in Section 344 which states that the approval of the disbursement by the local chief executive is required whenever local funds are disbursed. The respondent Governor likewise defends the validity of the Memorandum dated July 1, 2002 stating that it was issued upon finding that the petitioner Vice-Governor appointed, among others, 28 clerks on top of the existing permanent employees resulting in an excessive and bloated bureaucracy. He concedes the appointing power of the Vice-Governor but submits that this is limited to the employees of the Sangguniang Panlalawigan and that he is not authorized to appoint officials and employees of the Office of the Vice-Governor. As correctly presented by the appellate court, the issues for resolution in this case are:

A. Who between the petitioner and the respondent is authorized to approve purchase orders issued in connection with the procurement of supplies, materials, equipment, including fuel, repairs and maintenance of the Sangguniang Panlalawigan? B. Does respondent Villarosa, as local chief executive, have the authority to terminate or cancel the appointments of casual/job order employees of the Sangguniang Panlalawigan Members and the Office of the Vice-Governor?
[9]

Before resolving the foregoing issues, it is noted that petitioner Atienza and respondent Villarosa had ceased to be the Vice-Governor and Governor, respectively, of the Province of Occidental Mindoro effective June 30, 2004 when the newly-elected officials of the province took their oaths of offices. The petitioner Vice-Governor did not run for re-election during the May 2004 elections while the respondent Governor did not succeed in his re-election bid. The expiration of their terms of offices has effectively rendered the case moot. However, even in cases where supervening events had made the cases moot, the Court did not hesitate to resolve the legal or constitutional issues raised to formulate controlling principles to guide the bench, bar and the public. [10] In this case, there is compelling reason for the Court to resolve the issues presented in order to clarify the scope of the respective powers of the Governor and Vice-Governor under the pertinent provisions of the Local Government Code of 1991. To resolve the substantive issues presented in the instant case, it is well to recall that Rep. Act No. 7160 was enacted to give flesh to the constitutional mandate to provide for a mor e responsive and accountable local government structure instituted through a system of decentralization with effective mechanism of recall, initiative and referendum, allocate among the different local government units their

Atienza vs. Villarosa

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 matters relating to the organization and operation of the local units.[11] In this connection, the provisions of Rep. Act No. 7160 are anchored on principles that give effect to decentralization. Among these principles are: [t]here shall be an effective allocation among the different local government units of their respective powers, functions, responsibilities, and resources; [t]here shall be established in every local government unit an accountable, efficient, and dynamic organizational structure and operating mechanism that will meet the priority needs and service requirements of its communities; [p]rovinces with respect to component cities and municipalities, and cities and municipalities with respect to component barangays, shall ensure that the acts of their component units are within the scope of their prescribed powers and functions; and [e]ffective mechanisms for ensuring the accountability of local government units to their respective constituents shall be strengthened in order to upgrade continually the quality of local leadership.[12] With these guideposts, the Court shall now address the issue on who between the Governor and Vice-Governor is authorized to approve purchase orders issued in connection with the procurement of supplies, materials, equipment, including fuel, repairs and maintenance of the Sangguniang Panlalawigan. We hold that it is the Vice-Governor who has such authority. Under Rep. Act No. 7160, local legislative power for the province is exercised by the Sangguniang Panlalawigan[13] and the Vice-Governor is its presiding officer.[14]Being vested with legislative powers, the Sangguniang Panlalawigan enacts ordinances, resolutions and appropriates funds for the general welfare of the province in accordance with the provisions of Rep. Act No. 7160.[15] The same statute vests upon the Vice-Governor the power to:

(1) Be the presiding officer of the sangguniang panlalawigan and sign all warrants drawn on the provincial treasury for all expenditures appropriated for the operation of the sangguniang panlalawigan.
[16]

Further, Section 344 provides:

Sec. 344. Certification on, and Approval of, Vouchers. No money shall be disbursed unless the local budget officer certifies to the existence of appropriation that has been legally made for the purpose, the local accountant has obligated said appropriation, and the local treasurer certifies to the availability of funds for the purpose. Vouchers and payrolls shall be certified to and approved by the head of the department or office who has administrative control of the fund concerned, as to validity, propriety and legality of the claim involved. Except in cases of disbursements involving regularly recurring administrative expenses such as payrolls for regular or permanent employees, expenses for light, water, telephone and telegraph services, remittances to government creditor agencies such as the GSIS, SSS, LBP, DBP, National Printing Office, Procurement Service of the DBM and others, approval of the disbursement voucher by the local chief executive himself shall be required whenever local funds are disbursed. In cases of special or trust funds, disbursements shall be approved by the administrator of the fund. In case of temporary absence or incapacity of the department head or chief of office, the officer nextin-rank shall automatically perform his function and he shall be fully responsible therefor.

Atienza vs. Villarosa

Reliance by the CA on the clause approval of the disbursement voucher by the local chief executive himself shall be required whenever local funds are disbursed of the above section (Section 344) to rule that it is the Governor who has the authority to approve purchase orders for the supplies, materials or equipment for the operation of theSangguniang Panlalawigan is misplaced. This clause cannot prevail over the more specific clause of the same p rovision which provides that vouchers and payrolls shall be certified to and approved by the head of the department or office who has administrative control of the fund concerned. The Vice-Governor, as the presiding officer of the Sangguniang Panlalawigan, has administrative control of the funds of the said body. Accordingly, it is the Vice-Governor who has the authority to approve disbursement vouchers for expenditures appropriated for the operation of the Sangguniang Panlalawigan. On this point, Section 39 of the Manual on the New Government Accounting System for Local Government Units, prepared by the Commission on Audit (COA), is instructive:

Sec. 39. Approval of Disbursements. Approval of disbursements by the Local Chief Executive (LCE) himself shall be required whenever local funds are disbursed, except for regularly recurring administrative expenses such as: payrolls for regular or permanent employees, expenses for light, water, telephone and telegraph services, remittances to government creditor agencies such as GSIS, BIR, PHILHEALTH, LBP, DBP, NPO, PS of the DBM and others, where the authority to approve may be delegated. Disbursement vouchers for expenditures appropriated for the operation of the Sanggunian shall be approved by the provincial Vice Governor, the city Vice-Mayor or the municipal Vice-Mayor, as the case may be.
[17]

While Rep. Act No. 7160 is silent as to the matter, the authority granted to the Vice-Governor to sign all warrants drawn on the provincial treasury for all expenditures appropriated for the operation of the Sangguniang Panlalawigan as well as to approve disbursement vouchers relating thereto necessarily includes the authority to approve purchase orders covering the same applying the doctrine of necessary implication. This doctrine is explained, thus:

No statute can be enacted that can provide all the details involved in its application. There is always an omission that may not meet a particular situation. What is thought, at the time of enactment, to be an all-embracing legislation may be inadequate to provide for the unfolding of events of the future. So-called gaps in the law develop as the law is enforced. One of the rules of statutory construction used to fill in the gap is the doctrine of necessary implication. The doctrine states that what is implied in a statute is as much a part thereof as that which is expressed. Every statute is understood, by implication, to contain all such provisions as may be necessary to effectuate its object and purpose, or to make effective rights, powers, privileges or jurisdiction which it grants, including all such collateral and subsidiary consequences as may be fairly and logically inferred from its terms. Ex necessitate legis. And every statutory grant of power, right or privilege is deemed to include all incidental power, right or privilege. This is so because the greater includes the lesser, expressed in the maxim, in eo plus sit, simper inest et minus.
[18]

Warrants are order[s] directing the treasurer of the municipality to pay money out of funds in city treasury which are or may become available for purpose specified to designated person[s].[19] Warrants of a municipal corporation are generally orders payable when funds are found. They are issued for the payment of general municipal debts and expenses subject to the rule that they shall be paid in the order of presentation.[20]

Atienza vs. Villarosa

The ordinary meaning of voucher is a document which shows that services have been performed or expenses incurred. It covers any acquittance or receipt discharging the person or evidencing payment by him. When used in connection with disbursement of money, it implies some instrument that shows on what account or by what authority a particular payment has been made, or that services have been performed which entitle the party to whom it is issued to payment. [21] Purchase order, on the other hand, is an authorization by the issuing party for the recipient to provide materials or services for which issuing party agrees to pay; it is an offer to buy which becomes binding when those things ordered have been provided.[22] When an authorized person approves a disbursement voucher, he certifies to the correctness of the entries therein, among others: that the expenses incurred were necessary and lawful, the supporting documents are complete and the availability of cash therefor. Further, the person who performed the services or delivered the supplies, materials or equipment is entitled to payment. [23] On the other hand, the terms and conditions for the procurement of supplies, materials or equipment, in particular, are contained in a purchase order. The tenor of a purchase order basically directs the supplier to deliver the articles enumerated and subject to the terms and conditions specified therein. [24] Hence, the express authority to approve disbursement vouchers and, in effect, authorize the payment of money claims for supplies, materials or equipment, necessarily includes the authority to approve purchase orders to cause the delivery of the said supplies, materials or equipment. Since it is the Vice-Governor who approves disbursement vouchers and approves the payment for the procurement of the supplies, materials and equipment needed for the operation of the Sangguniang Panlalawigan, then he also has the authority to approve the purchase orders to cause the delivery of the said supplies, materials or equipment. Indeed, the authority granted to the Vice-Governor to sign all warrants drawn on the provincial treasury for all expenditures appropriated for the operation of theSangguniang Panlalawigan as well as to approve disbursement vouchers relating thereto is greater and includes the authority to approve purchase orders for the procurement of the supplies, materials and equipment necessary for the operation of the Sangguniang Panlalawigan. Anent the second issue, the appellate court likewise committed reversible error in holding that the implementation of the Memorandum dated July 1, 2002 had rendered the petition moot and academic. It is recognized that courts will decide a question otherwise moot and academic if it is capable of repetition yet evading review.[25] Even if the employees whose contractual or job order employment had been terminated by the implementation of the July 1, 2002 Memorandum may no longer be reinstated, still, similar memoranda may be issued by other local chief executives. Hence, it behooves the Court to resolve whether the Governor has the authority to terminate or cancel the appointments of casual/job order employees of the Sangguniang Panlalawigan and the Office of the Vice-Governor. We hold that the Governor, with respect to the appointment of the officials and employees of the Sangguniang Panlalawigan, has no such authority. Among the powers granted to the Governor under Section 465 of Rep. Act No. 7160 are:

Sec. 465. The Chief Executive: Powers, Duties, Functions and Compensation. (a) The provincial governor, as the chief executive of the provincial government, shall exercise such powers and perform such duties and functions as provided by this Code and other laws. (b) For efficient, effective and economical governance the purpose of which is the general welfare of the province and its inhabitants pursuant to Section 16 of this Code, the provincial governor shall:

Atienza vs. Villarosa

(v) Appoint all officials and employees whose salaries and wages are wholly or mainly paid out of provincial funds and whose appointments are not otherwise provided for in this Code, as well as those he may be authorized by law to appoint.
On the other hand, Section 466 vests on the Vice-Governor the power to, among others:

(2) Subject to civil service law, rules and regulations, appoint all officials and employees of the sangguniang panlalawigan, except those whose manner of appointment is specifically provided in this Code.
Thus, while the Governor has the authority to appoint officials and employees whose salaries are paid out of the provincial funds, this does not extend to the officials and employees of the Sangguniang Panlalawigan because such authority is lodged with the Vice-Governor. In the same manner, the authority to appoint casual and job order employees of the Sangguniang Panlalawigan belongs to the Vice-Governor. The authority of the Vice-Governor to appoint the officials and employees of the Sangguniang Panlalawigan is anchored on the fact that the salaries of these employees are derived from the appropriation specifically for the said local legislative body. Indeed, the budget source of their salaries is what sets the employees and officials of the Sangguniang Panlalawigan apart from the other employees and officials of the province. Accordingly, the appointing power of the Vice-Governor is limited to those employees of the Sangguniang Panlalawigan, as well as those of the Office of the ViceGovernor, whose salaries are paid out of the funds appropriated for the Sangguniang Panlalawigan . As a corollary, if the salary of an employee or official is charged against the provincial funds, even if this employee reports to the Vice-Governor or is assigned to his office, the Governor retains the authority to appoint the said employee pursuant to Section 465(b)(v) of Rep. Act No. 7160. However, in this case, it does not appear whether the contractual/job order employees, whose appointments were terminated or cancelled by the Memorandum dated July 1, 2002 issued by the respondent Governor, were paid out of the provincial funds or the funds of the Sangguniang Panlalawigan. Nonetheless, the validity of the said memorandum cannot be upheld because it absolutely prohibited the respondent Vice-Governor from exercising his authority to appoint the employees, whether regular or contractual/job order, of the Sangguniang Panlalawigan and restricted such authority to one of recommendatory nature only. [26] This clearly constituted an encroachment on the appointment power of the respondent Vice- Governor under Section 466(a)(2) of Rep. Act No. 7160. At this juncture, it is well to note that under Batas Pambansa Blg. 337, the Local Government Code prior to Rep. Act No. 7160, the Governor was the presiding officer of the Sangguniang Panlalawigan:

Sec. 205. Composition. (1) Each provincial government shall have a provincial legislature hereinafter known as the sangguniang panlalawigan, upon which shall be vested the provincial legislative power. (2) The sangguniang panlalawigan shall be composed of the governor, vice-governor, elective members of the said sanggunian, and the presidents of the katipunang panlalawigan and thekabataang barangay provincial federation who shall be appointed by the President of the Philippines.

Atienza vs. Villarosa

Sec. 206. Sessions. (3) The governor, who shall be the presiding officer of the sangguniang panlalawigan, shall not be entitled to vote except in case of a tie.
With Rep. Act No. 7160, the union of legislative and executive powers in the office of the local chief executive under the BP Blg. 337 has been disbanded, so that either department now comprises different and non-intermingling official personalities with the end in view of ensuring a better delivery of public service and provide a system of check and balance between the two. [27] Senator Aquilino Pimentel, the principal author of Rep. Act No. 7160, explained that the Vice Governor is now the presiding officer of the Sangguniang Panlalawigan. The City Vice-Mayor presides at meetings of the Sangguniang Panlungsod and the Municipal Vice-Mayor at the sessions of the Sangguniang Bayan. The idea is to distribute powers among elective local officials so that the legislative, which is the Sanggunian, can properly check the executive, which is the Governor or the Mayor and vice versa and exercise their functions without any undue interference from one by the other.[28] The avowed intent of Rep. Act. No. 7160, therefore, is to vest on the Sangguniang Panlalawigan independence in the exercise of its legislative functions vis-a-vis the discharge by the Governor of the executive functions. The Memoranda dated June 25, 2002 and July 1, 2002 of the respondent Governor, which effectively excluded the petitioner Vice-Governor, the presiding officer of the Sangguniang Panlalawigan, from signing the purchase orders for the procurement of supplies, materials or equipment needed for the operation of the Sangguniang Panlalawigan as well as from appointing its casual and job order employees, constituted undue interference with the latters functions. The assailed memoranda are clearly not in keeping with the intent of Rep. Act No. 7160 and their implementation should thus be permanently enjoined. WHEREFORE, the petition is GRANTED. The Memoranda dated June 25, 2002 and July 1, 2002 issued by respondent Governor Jose T. Villarosa are NULL AND VOID. SO ORDERED.

Catu vs. Rellosa


Republic of the Philippines SUPREME COURT Manila FIRST DIVISION A.C. No. 5738 February 19, 2008

WILFREDO M. CATU, complainant, vs. ATTY. VICENTE G. RELLOSA, respondent. RESOLUTION CORONA, J.: Complainant Wilfredo M. Catu is a co-owner of a lot1 and the building erected thereon located at 959 San Andres Street, Malate, Manila. His mother and brother, Regina Catu and Antonio Catu, contested the possession of Elizabeth C. Diaz-Catu2 and Antonio Pastor3 of one of the units in the building. The latter ignored demands for them to vacate the premises. Thus, a complaint was initiated against them in the Lupong Tagapamayapa of Barangay 723, Zone 79 of the 5th District of Manila4 where the parties reside. Respondent, as punong barangay of Barangay 723, summoned the parties to conciliation meetings.5 When the parties failed to arrive at an amicable settlement, respondent issued a certification for the filing of the appropriate action in court. Thereafter, Regina and Antonio filed a complaint for ejectment against Elizabeth and Pastor in the Metropolitan Trial Court of Manila, Branch 11. Respondent entered his appearance as counsel for the defendants in that case. Because of this, complainant filed the instant administrative complaint,6 claiming that respondent committed an act of impropriety as a lawyer and as a public officer when he stood as counsel for the defendants despite the fact that he presided over the conciliation proceedings between the litigants as punong barangay. In his defense, respondent claimed that one of his duties as punong barangay was to hear complaints referred to the barangay's Lupong Tagapamayapa. As such, he heard the complaint of Regina and Antonio against Elizabeth and Pastor. As head of the Lupon, he performed his task with utmost objectivity, without bias or partiality towards any of the parties. The parties, however, were not able to amicably settle their dispute and Regina and Antonio filed the ejectment case. It was then that Elizabeth sought his legal assistance. He acceded to her request. He handled her case for free because she was financially distressed and he wanted to prevent the commission of a patent injustice against her. The complaint was referred to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation. As there was no factual issue to thresh out, the IBP's Commission on Bar Discipline (CBD) required the parties to submit their respective position papers. After evaluating the contentions of the parties, the IBP-CBD found sufficient ground to discipline respondent.7 According to the IBP-CBD, respondent admitted that, as punong barangay, he presided over the conciliation proceedings and heard the complaint of Regina and Antonio against Elizabeth and Pastor. Subsequently, however, he represented Elizabeth and Pastor in the ejectment case filed against them by Regina and Antonio. In the course thereof, he prepared and signed pleadings including the answer with counterclaim, pre-trial brief, position paper and notice of appeal. By so doing, respondent violated Rule 6.03 of the Code of Professional Responsibility: Rule 6.03 - A lawyer shall not, after leaving government service, accept engagement or employment in connection with any matter in which he intervened while in said service. Furthermore, as an elective official, respondent contravened the prohibition under Section 7(b)(2) of RA 6713:8

Catu vs. Rellosa SEC. 7. Prohibited Acts and Transactions. - In addition to acts and omissions of public officials and employees now prescribed in the Constitution and existing laws, the following shall constitute prohibited acts and transactions of any public official ands employee and are hereby declared to be unlawful:
xxx xxx xxx

(b) Outside employment and other activities related thereto. - Public officials and employees during their incumbency shall not: xxx xxx xxx

(2) Engage in the private practice of profession unless authorized by the Constitution or law , provided that such practice will not conflict or tend to conflict with their official functions; xxx (emphasis supplied) According to the IBP-CBD, respondent's violation of this prohibition constituted a breach of Canon 1 of the Code of Professional Responsibility: CANON 1. A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY THE LAWS OF THE LAND, PROMOTE RESPECT FOR LAW AND LEGAL PROCESSES. (emphasis supplied) For these infractions, the IBP-CBD recommended the respondent's suspension from the practice of law for one month with a stern warning that the commission of the same or similar act will be dealt with more severely.9 This was adopted and approved by the IBP Board of Governors.10 We modify the foregoing findings regarding the transgression of respondent as well as the recommendation on the imposable penalty. Rule 6.03 of the Code of Professional Responsibility Applies Only to Former Government Lawyers Respondent cannot be found liable for violation of Rule 6.03 of the Code of Professional Responsibility. As worded, that Rule applies only to a lawyer who has left government service and in connection "with any matter in which he intervened while in said service." In PCGG v. Sandiganbayan,11 we ruled that Rule 6.03 prohibits former government lawyers from accepting "engagement or employment in connection with any matter in which [they] had intervened while in said service." Respondent was an incumbent punong barangay at the time he committed the act complained of. Therefore, he was not covered by that provision. Section 90 of RA 7160, Not Section 7(b)(2) of RA 6713, Governs The Practice of Profession of Elective Local Government Officials Section 7(b)(2) of RA 6713 prohibits public officials and employees, during their incumbency, from engaging in the private practice of their profession "unless authorized by the Constitution or law, provided that such practice will not conflict or tend to conflict with their official functions." This is the general law which applies to all public officials and employees. For elective local government officials, Section 90 of RA 716012 governs: SEC. 90. Practice of Profession. - (a) All governors, city and municipal mayors are prohibited from practicing their profession or engaging in any occupation other than the exercise of their functions as local chief executives. (b) Sanggunian members may practice their professions, engage in any occupation, or teach in schools except during session hours: Provided, That sanggunian members who are members of the Bar shall not:

Catu vs. Rellosa


(1) Appear as counsel before any court in any civil case wherein a local government unit or any office, agency, or instrumentality of the government is the adverse party; (2) Appear as counsel in any criminal case wherein an officer or employee of the national or local government is accused of an offense committed in relation to his office; (3) Collect any fee for their appearance in administrative proceedings involving the local government unit of which he is an official; and (4) Use property and personnel of the Government except when the sanggunian member concerned is defending the interest of the Government. (c) Doctors of medicine may practice their profession even during official hours of work only on occasions of emergency: Provided, That the officials concerned do not derive monetary compensation therefrom. This is a special provision that applies specifically to the practice of profession by elective local officials. As a special law with a definite scope (that is, the practice of profession by elective local officials), it constitutes an exception to Section 7(b)(2) of RA 6713, the general law on engaging in the private practice of profession by public officials and employees. Lex specialibus derogat generalibus.13 Under RA 7160, elective local officials of provinces, cities, municipalities and barangays are the following: the governor, the vice governor and members of the sangguniang panlalawigan for provinces; the city mayor, the city vice mayor and the members of the sangguniang panlungsod for cities; the municipal mayor, the municipal vice mayor and the members of the sangguniang bayan for municipalities and the punong barangay, the members of the sangguniang barangay and the members of the sangguniang kabataan for barangays. Of these elective local officials, governors, city mayors and municipal mayors are prohibited from practicing their profession or engaging in any occupation other than the exercise of their functions as local chief executives. This is because they are required to render full time service. They should therefore devote all their time and attention to the performance of their official duties. On the other hand, members of the sangguniang panlalawigan, sangguniang panlungsod or sangguniang bayanmay practice their professions, engage in any occupation, or teach in schools except during session hours. In other words, they may practice their professions, engage in any occupation, or teach in schools outside their session hours. Unlike governors, city mayors and municipal mayors, members of the sangguniang panlalawigan,sangguniang panlungsod or sangguniang bayan are required to hold regular sessions only at least once a week.14 Since the law itself grants them the authority to practice their professions, engage in any occupation or teach in schools outside session hours, there is no longer any need for them to secure prior permission or authorization from any other person or office for any of these purposes. While, as already discussed, certain local elective officials (like governors, mayors, provincial board members and councilors) are expressly subjected to a total or partial proscription to practice their profession or engage in any occupation, no such interdiction is made on the punong barangay and the members of the sangguniang barangay. Expressio unius est exclusio alterius.15 Since they are excluded from any prohibition, the presumption is that they are allowed to practice their profession. And this stands to reason because they are not mandated to serve full time. In fact, the sangguniang barangay is supposed to hold regular sessions only twice a month.16 Accordingly, as punong barangay, respondent was not forbidden to practice his profession. However, he should have procured prior permission or authorization from the head of his Department, as required by civil service regulations. A Lawyer In Government Service Who Is Not Prohibited To Practice Law Must Secure Prior Authority From The Head Of His Department A civil service officer or employee whose responsibilities do not require his time to be fully at the disposal of the government can engage in the private practice of law only with the written permission of the head of the department concerned.17 Section 12, Rule XVIII of the Revised Civil Service Rules provides:

Catu vs. Rellosa Sec. 12. No officer or employee shall engage directly in any private business, vocation, or professionor be connected with any commercial, credit, agricultural, or industrial undertaking without a written permission from the head of the Department: Provided, That this prohibition will be absolute in the case of those officers and employees whose duties and responsibilities require that their entire time be at the disposal of the Government; Provided, further, That if an employee is granted permission to engage in outside activities, time so devoted outside of office hours should be fixed by the agency to the end that it will not impair in any way the efficiency of the officer or employee: And provided, finally, that no permission is necessary in the case of investments, made by an officer or employee, which do not involve real or apparent conflict between his private interests and public duties, or in any way influence him in the discharge of his duties, and he shall not take part in the management of the enterprise or become an officer of the board of directors. (emphasis supplied)
As punong barangay, respondent should have therefore obtained the prior written permission of the Secretary of Interior and Local Government before he entered his appearance as counsel for Elizabeth and Pastor. This he failed to do. The failure of respondent to comply with Section 12, Rule XVIII of the Revised Civil Service Rules constitutes a violation of his oath as a lawyer: to obey the laws. Lawyers are servants of the law, vires legis, men of the law. Their paramount duty to society is to obey the law and promote respect for it. To underscore the primacy and importance of this duty, it is enshrined as the first canon of the Code of Professional Responsibility. In acting as counsel for a party without first securing the required written permission, respondent not only engaged in the unauthorized practice of law but also violated civil service rules which is a breach of Rule 1.01 of the Code of Professional Responsibility: Rule 1.01 - A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct. (emphasis supplied) For not living up to his oath as well as for not complying with the exacting ethical standards of the legal profession, respondent failed to comply with Canon 7 of the Code of Professional Responsibility: CANON 7. A LAWYER SHALL AT ALL TIMES UPHOLD THE INTEGRITY AND THE DIGNITY OF THE LEGAL PROFESSION AND SUPPORT THE ACTIVITIES OF THE INTEGRATED BAR. (emphasis supplied) Indeed, a lawyer who disobeys the law disrespects it. In so doing, he disregards legal ethics and disgraces the dignity of the legal profession. Public confidence in the law and in lawyers may be eroded by the irresponsible and improper conduct of a member of the bar.18 Every lawyer should act and comport himself in a manner that promotes public confidence in the integrity of the legal profession.19 A member of the bar may be disbarred or suspended from his office as an attorney for violation of the lawyer's oath20 and/or for breach of the ethics of the legal profession as embodied in the Code of Professional Responsibility. WHEREFORE, respondent Atty. Vicente G. Rellosa is hereby found GUILTY of professional misconduct for violating his oath as a lawyer and Canons 1 and 7 and Rule 1.01 of the Code of Professional Responsibility. He is therefore SUSPENDED from the practice of law for a period of six months effective from his receipt of this resolution. He is sternly WARNED that any repetition of similar acts shall be dealt with more severely. Respondent is strongly advised to look up and take to heart the meaning of the word delicadeza. Let a copy of this resolution be furnished the Office of the Bar Confidant and entered into the records of respondent Atty. Vicente G. Rellosa. The Office of the Court Administrator shall furnish copies to all the courts of the land for their information and guidance. SO ORDERED.

Quirog vs. Aumentado

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 163443 November 11, 2008

LIZA M. QUIROG and RENE L. RELAMPAGOS, petitioners vs. GOVERNOR ERICO B. AUMENTADO, respondent. x--------------------------------------x G.R. No. 163568 November 11, 2008

CIVIL SERVICE COMMISSION, petitioner vs. COURT OF APPEALS and GOV. ERICO B. AUMENTADO, respondents. DECISION LEONARDO-DE CASTRO, J.: Before this Court are two consolidated petitions for review under Rule 45 of the Rules of Court both assailing and seeking to set aside the Court of Appeals' (CA) Decision1 dated March 31, 2003 and theResolution2 dated April 12, 2004 in CA-G.R. SP No. 70255. The Decision set aside Resolution Nos. 011812 and 020271 dated November 20, 2001 and February 22, 2002, respectively, of the Civil Service Commission in Administrative NDC No. 01-88 and reinstated the (a) June 28, 2001 Order and (b) July 23, 2001 Decision of the Civil Service Commission Regional Office No. VII. The facts as culled from the records are as follows: On May 28, 2001, Bohol Provincial Governor Rene L. Relampagos permanently appointed3 Liza M. Quirog as Provincial Government Department Head4 of the Office of the Bohol Provincial Agriculture (PGDH-OPA). The appointment was confirmed by the Sangguniang Panlalawigan in Resolution No. 2001-1995 on June 1, 2001. On even date, Quirog took her oath of office. Before the issuance of the permanent appointment, the Personnel Selection Board (PSB) of the Human Resource Management and Development Office of Bohol issued a certification6 that Quirog was one of two candidates qualified for the position of PGDH-OPA.

Quirog vs. Aumentado

A copy of the Monthly Report on Personnel Actions (ROPA) covering the months of May and June 2001 of the provincial government was submitted to the Civil Service Commission Regional Office No. VII (CSCROVII), Cebu City. In the Order dated June 28, 20017, the Director of CSCROVII invalidated Quirog's appointment as PGDH-OPA upon finding that the same was part of the bulk appointments issued by then Governor Relampagos after the May 14, 2001 elections allegedly in violation of Item No. 3(d)8 of CSC Resolution No. 010988 dated June 4, 2001. The Order pointed out that the prohibition against the issuance ofmidnight appointments was already laid down as early as February 29, 2000 in CSC Resolution No. 000550.9 Both Relampagos and Quirog moved for reconsideration of the CSCROVII Order, alleging that when the latter took her oath of office on June 1, 2001, CSC Resolution No. 010988 was not yet effective as it took effect only on June 4, 2001. They argued that the subject appointment cannot be considered a midnight appointment because it was made days before the expiration of Relampagos' term, and that Quirog was already the acting Provincial Agriculturist a year prior to said appointment or since June 19, 2000.10Besides, so they asserted, since Quirog had already taken her oath of office, assumed her duties and collected her salary for the month of June, 2001, she had already acquired a legal, not merely equitable, right to the position in question, which cannot be taken away from her either by revocation of the appointment or by removal except for cause and with previous notice and hearing. In a decision11 dated July 23, 2001, the CSCROVII denied Quirog's and Relampagos' motion for reconsideration for lack of legal personality to file such pleading, citing Section 2, Rule VI of CSC Memorandum Circular (MC) No. 40, series of 1998. The CSCROVII explained that only the appointing officer may request reconsideration of the disapproval of an appointment by the Civil Service Commission. Even if Relampagos was the one who appointed Quirog, he could not file a motion for reconsideration because his term as governor had already expired. Aggrieved, the petitioners in G.R. No. 163443 appealed to the Civil Service Commission (CSC) where their joint appeal was docketed as Adm. NDC No. 01-88. On November 20, 2001, the CSC issued Resolution No. 011812,12 which granted the said joint appeal and set aside the order and decision of the CSCROVII. More specifically, the Resolution states: WHEREFORE, the joint appeal of former Governor Rene L. Relampagos and Liza M. Quirog is hereby GRANTED. Accordingly, the decision dated July 23, 2001 of the Civil Service Commission-Regional Office No. VII and CSCRO No. VII Order dated June 28, 2001 are hereby set aside. Said Regional Office is enjoined to approve the appointment of Quirog to the position of Provincial Government Head, Office of the Provincial Agriculturist, Province of Bohol.

Quirog vs. Aumentado

According to the CSC, since Relampagos had ceased to be the appointing authority upon the expiration of his term as governor and incumbent Governor Erico B. Aumentado was not the official who made the subject appointment, equity dictates that the appointee Quirog be allowed to question the decision to obviate possible damage or injury to the delivery of public service. The CSC also declared that the appointment of Quirog was not a midnight appointment as it was not hurriedly issued nor did it subvert the policies of the incoming administration. The CSC relaxed the application of Item 3(a)13 in CSC Resolution 01-0988 requiring that appointments should have gone through the regular screening by the PSB before the election ban or the prohibited period from March 30, 2001 to May 14, 2001. After noting that the selection board only deliberated upon Quirog's qualifications on May 24, 2001, or after the election ban, the CSC ratiocinated that the spirit, rather than the letter of the said rule should prevail as long as the case did not involve a midnight appointment proscribed by Aytona v. Castillo, et al.14 Lastly, the CSC justified Quirog's appointment even though such was included among 46 post-election appointments because of the need to immediately fill up in a permanent capacity the vacant position of Provincial Agriculturist and the fact that Governor Aumentado expressly declared his trust and confidence in Quirog in his Memorandum No. 115 dated July 2, 2001. On December 10, 2001, incumbent Bohol Governor Erico B. Aumentado filed an amended Motion for Reconsideration16 of the CSC Resolution No. 011812. He insisted that Quirog and Relampagos had no legal personality to file a motion for reconsideration of the disapproved appointment or to appeal the same. He insisted that Quirog's appointment was a midnight appointment. Aumentado added that the selection board which screened Quirog's qualifications was not validly constituted and that the subject appointment was made more than six months from the time it was published on July 23, 2000 in violation of CSC Resolution No. 01011417 dated January 10, 2001. Aumentado insisted that Relampagos made 97, not 46, mass appointments on the eve of his term, 95 of which were invalidated by the CSC Bohol Field Office and two, including that of Quirog, by the CSCROVII. In Resolution No. 02027118 dated February 22, 2002, the CSC denied Aumentado's motion for reconsideration. Aumentado then filed a petition for review19 under Rule 43 of the Rules of Court with the CA where it was docketed as CA-G.R. SP No. 70255. On March 31, 2003, the CA rendered the herein challenged Decision,20 granting Aumentado's petition. The CA reversed and set aside CSC Resolution No. 011812 and ruled that Quirog's appeal should have been dismissed outright for lack of legal personality: WHEREFORE, based on the foregoing premises, the instant petition is hereby GRANTED, the assailed CSC Resolution Nos. 011812 and 020271, dated November 20, 2001 and February 22, 2002 respectively, are REVERSED and SET ASIDE. The CSCROVII's June 28, 2001 Order and its July 23, 2001 Decision are hereby REINSTATED. SO ORDERED.

Quirog vs. Aumentado

On April 12, 2004, the CA rendered the second assailed Resolution,21 denying Quirog and Relampagos' motion for reconsideration. From the adverse decision of the CA, the CSC as well as Relampagos and Quirog interposed separate petitions for review on certiorari. Relampagos and Quirog's petition22 filed on June 25, 2004, was docketed as G.R. No. 163443, while the CSC's petition23 filed on July 8, 2004, was docketed as G.R. No. 163568. In the Resolution24 dated July 13, 2004, the Court ordered the consolidation of the two petitions. The consolidated petitions present the following issues for the Court's resolution: (1) whether or not petitioners Relampagos and Quirog have the legal standing to file a motion for reconsideration of, or appeal from, the disapproval of the latter's appointment by the Civil Service Commission, (2) whether or not Quirog's appointment violated Item 3 of CSC Resolution No. 010988 dated June 4, 2001, and 3) whether or not the subject appointment was a midnight appointment. In the herein challenged decision, the CA held that only the appointing authority could challenge the CSC's disapproval of an appointment. In arriving at such a conclusion, the CA relied solely on Section 2 of Rule VI of CSC Memorandum Circular (MC) No. 40, series of 199825 which provides: Sec. 2. Requests for reconsideration of, or appeal from, the disapproval of an appointment may be made by the appointing authority and submitted to the Commission within fifteen (15) days from receipt of the disapproved appointment. The petitioners share the view that the word may in the afore-quoted provision simply means that a request for reconsideration or appeal from a disapproved appointment is not vested exclusively in the appointing authority and that Quirog's appeal should have been given due course because she was the real party-in-interest, being the one aggrieved by the disapproval of the appointment. Petitioners Quirog and Relampagos contend that their appeal before the CA should not have been dismissed on a mere technicality such as lack of legal personality. They argued that litigants must be afforded full opportunity for the adjudication of their case on the merits. The CSC for its part, pointed out that in previously decided cases, the CSC allowed the appointees to take relief from the disapproval of their appointments as an exception to the rule on legal standing. Upon the other hand, respondent Aumentado maintains that the controlling rule on the matter of legal standing is the afore-cited Section 2, Rule VI, CSC MC No. 40, series of 1998. He anchors his argument in Mathay, Jr. v. Civil Service Commission,26 where the Court laid down the ruling that only the appointing authority can request for reconsideration of a CSC-disapproved appointment.

Quirog vs. Aumentado

The Court rules for the petitioners. In the recent case of Abella, Jr. v. Civil Service Commission,27 the Court declared that both the appointing authority and the appointee are equally real parties in interest who have the requisite legal standing to bring an action challenging a CSC disapproval of an appointment. In said case, we held that: The CSC's disapproval of an appointment is a challenge to the exercise of the appointing authority's discretion. The appointing authority must have the right to contest the disapproval. Thus, Section 2 of Rule VI of CSC Memorandum Circular 40, s. 1998 is justified insofar as it allows the appointing authority to request reconsideration or appeal. xxx Although the earlier discussion demonstrates that the appointing authority is adversely affected by the CSC's Order and is a real party in interest, the appointee is rightly a real party in interest too. He is also injured by the CSC disapproval, because he is prevented from assuming the office in a permanent capacity. Moreover, he would necessarily benefit if a favorable judgment is obtained, as an approved appointment would confer on him all the rights and privileges of a permanent appointee. xxx Section 2 of Rule VI of CSC Memorandum Circular 40, s. 1998 should not be interpreted to restrict solely to the appointing authority the right to move for a reconsideration of, or to appeal, the disapproval of an appointment. PD 807 and EO 292, from which the CSC derives the authority to promulgate its rules and regulations, are silent on whether appointees have a similar right to file motions for reconsideration of, or appeals from, unfavorable decisions involving appointments. Indeed, there is no legislative intent to bar appointees from challenging the CSC's disapproval. The view that only the appointing authority may request reconsideration or appeal is too narrow. The appointee should have the same right. Parenthetically, CSC Resolution 99-1936 recognizes the right of the adversely affected party to appeal to the CSC Regional Offices prior to elevating a matter to the CSC Central Office. The adversely affected party necessarily includes the appointee.28 Also, in Abella, Jr, we held that the right of the appointee to seek reconsideration or appeal was not the main issue in Mathay: This judicial pronouncement does not override Mathay v. Civil Service Commission xxx. The Court merely noted in passing -- by way of obiter -- that based on a similar provision, only the appointing officer could request reconsideration of actions taken by the CSC on appointments.

Quirog vs. Aumentado

In that case, Quezon City Mayor Ismael A. Mathay Jr. sought the nullification of CSC Resolutions that recalled his appointment of a city government officer. He filed a Petition assailing the CA Decision, which had previously denied his Petition for Certiorari for being the wrong remedy and for being filed out of time. We observed then that the CSC Resolutions were already final and could no longer be elevated to the CA. Furthermore, Mathay's Petition for Certiorari filed with the CA was improper, because there was an available remedy of appeal. And the CSC could not have acted without jurisdiction, considering that it was empowered to recall an appointment initially approved. The right of the appointee to seek reconsideration or appeal was not the main issue in Mathay. At any rate, the present case is being decided en banc, and the ruling may reverse previous doctrines laid down by this Court. 29 Clearly, pursuant to Abella, Jr., Quirog had the right to ask for reconsideration of, or to appeal the adverse ruling of CSCROVII. In contrast, Relampagos, by reason of the expiration of his term as governor, had lost the legal personality to contest the disapproval of the appointment. As to the validity of Quirog's appointment, the CSCROVII disapproved Quirog's appointment for non-compliance with Item No. 3 of CSC Resolution No. 010988 dated June 4, 2001. Item No. 3 refers to the disapproval of appointments unless certain requisites are complied with. Item No. 3 reads: 3. All appointments, whether original, transfer, reemployment, reappointment, promotion or demotion, x x x which are issued AFTER the elections, regardless of their dates of effectivity and/or date of receipt by the Commission, x x x shall be disapproved unless the following requisites concur relative to their issuance: a) The appointment has gone through the regular screening by the Personnel Selection Board (PSB) before the prohibited period on the issuance of appointments as shown by the PSB report or minutes of its meeting; b) That the appointee is qualified; c) There is a need to fill up the vacancy immediately in order not to prejudice public service and/or endanger public safety; d) That the appointment is not one of those mass appointments issued after the elections. The CSC ruled that the promotional appointment extended to Quirog by Governor Relampagos was not violative of the aforesaid CSC Resolution. This interpretation by the CSC of its own rules should be given great weight and consideration for after all, it is the agency tasked with interpreting or applying the same.

Quirog vs. Aumentado

Records disclose that on May 28, 2001, the PSB of the Human Resource Management and Development Office of Bohol, issued a certification30 that Quirog was one of two candidates qualified for the position of PGDH-OPA. On the same day, Quirog was appointed by then Governor Relampagos and on June 1, 2001, she took her oath of office. CSC Resolution No. 010988 was issued three days later, or on June 4, 2001. Evidently, the CSCROVII should not have subjected Quirog's appointment to the requirements under said resolution, as its application is against the prospective application of laws. Having no provision regarding its retroactive application to appointments made prior to its effectivity, CSC Resolution No. 010988 must be taken to be of prospective application. As we have held time and again: Since the retroactive application of a law usually divests rights that have already become vested, the rule in statutory construction is that all statutes are to be construed as having only a prospective operation unless the purpose and intention of the legislature to give them a retrospective effect is expressly declared or is necessarily implied from the language used.31 Prescinding therefrom, it cannot be said that Quirog's appointment violated CSC Resolution No. 010988, the said Resolution having taken effect after the questioned appointment was extended. It cannot also be said that Quirog's appointment was a midnight appointment. The constitutional prohibition on so-called midnight appointments, specifically, those made within two (2) months immediately prior to the next presidential elections, applies only to the President or Acting President.32 As the Court ruled in De Rama v. CA33: The records reveal that when the petitioner brought the matter of recalling the appointments of the fourteen (14) private respondents before the CSC, the only reason he cited to justify his action was that these were midnight appointments that are forbidden under Article VII, Section 15 of the Constitution. However, the CSC ruled, and correctly so, that the said prohibition applies only to presidential appointments. In truth and in fact, there is no law that prohibits local elective officials from making appointments during the last days of his or her tenure. We, however, hasten to add that the aforementioned ruling does not mean that the raison d' etre behind the prohibition against midnight appointments may not be applied to those made by chief executives of local government units, as here. Indeed, the prohibition is precisely designed to discourage, nay, even preclude, losing candidates from issuing appointments merely for partisan purposes thereby depriving the incoming administration of the opportunity to make the corresponding appointments in line with its new policies. As we held in Aytona v. Castillo: The filling up of vacancies in important positions, if few, and so spaced as to afford some assurance of deliberate action and careful consideration of the need for the

Quirog vs. Aumentado

appointment and the appointee's qualifications may undoubtedly be permitted. But the issuance of 350 appointments in one night and the planned induction of almost all of them in a few hours before the inauguration of the new President may, with some reason, be regarded by the latter as an abuse of Presidential prerogatives, the steps taken being apparently a mere partisan effort to fill all vacant positions irrespective of fitness and other conditions, and thereby to deprive the new administration of an opportunity to make the corresponding appointments.34 (Emphasis ours) The appointment of Quirog cannot be categorized as a midnight appointment. For it is beyond dispute that Quirog had been discharging and performing the duties concomitant with the subject position for a year prior to her permanent appointment thereto. Surely, the fact that she was only permanently appointed to the position of PGDH-OPA after a year of being the Acting Provincial Agriculturist more than adequately shows that the filling up of the position resulted from deliberate action and a careful consideration of the need for the appointment and the appointee's qualifications. The fact that Quirog had been the Acting Provincial Agriculturist since June 2000 all the more highlights the public need for said position to be permanently filled up. Besides, as correctly held by the CSC: A careful evaluation of the circumstances obtaining in the issuance of the appointment of Quirog shows the absence of the element of hurriedness on the part of former Governor Relampagos which characterizes a midnight appointment. There is also wanting in the records of the case the subversion by the former governor of the policies of the incumbent Governor Erico Aumentado as a logical consequence of the issuance of Quirog's appointment by the latter. Both elements are the primordial considerations by the Supreme Court when it laid down its ruling in prohibiting midnight appointments in the landmark case of Aytona vs Castillo, et. al.35 In any event, respondent Governor Aumentado, in a Memorandum36 dated March 4, 2003, has reinstated Quirog to the permanent position of PGDH-OPA. Such act of respondent bespeaks of his acceptance of the validity of Quirog's appointment and recognition that indeed, the latter is qualified for the subject position. WHEREFORE, the assailed Decision dated March 31, 2003 and the Resolution dated April 12, 2004 of the Court of Appeals are REVERSED AND SET ASIDE and CSC Resolution Nos. 011812 and 020271 dated November 20, 2001 and February 22, 2002, respectively, are AFFIRMED. SO ORDERED.

Laceda Sr. Vs. Limena

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 182867 November 25, 2008

ROBERTO LACEDA, SR., petitioner, vs. RANDY L. LIMENA and COMMISSION ON ELECTIONS, respondents. RESOLUTION QUISUMBING, J.: From this Court's June 10, 2008 Resolution1 dismissing his petition for certiorari, petitioner Roberto Laceda, Sr. filed the instant motion for reconsideration,2 insisting that the Commission on Elections (COMELEC) committed grave abuse of discretion in issuing the Resolutions dated January 15, 20083and May 7, 20084 in SPA No. 07-028 (BRGY). The facts are as follows: Petitioner Roberto Laceda, Sr., and private respondent Randy L. Limena were candidates for Punong Barangay of Barangay Panlayaan, West District, Sorsogon City, during the October 29, 2007 Barangay and Sangguniang Kabataan Elections. On October 23, 2007, Limena filed a petition for disqualification and/or declaration as an ineligible candidate5 against Laceda before the COMELEC, contending that Laceda had already served as Punong Barangay for Brgy. Panlayaan for three consecutive terms since 1994, and was thus prohibited from running for the fourth time under Section 2 of Republic Act No. 91646which provides: SEC. 2. Term of Office.-The term of office of all barangay and sangguniang kabataan officials after the effectivity of this Act shall be three (3) years. No barangay elective official shall serve for more than three (3) consecutive terms in the same position: Provided, however, That the term of office shall be reckoned from the 1994 barangay elections. Voluntary renunciation of office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which the elective official was elected. Limena likewise attached the following certification from the Department of the Interior and Local Government: THIS IS TO CERTIFY that per records in this office HON. ROBERTO LACEDA, SR., incumbent Punong Barangay of Panlayaan, West District, Sorsogon City. was

Laceda Sr. Vs. Limena

elected as Punong Barangay during the May 9, 1994, May 12, 1997 and July 15, 2002 Barangay Elections. He resigned from office on March 20, 1995 to run as Municipal Councilor. Hence, he is covered by the three-term rule of paragraph 2, Section 2 of RA 9164 which provides that: "No barangay elective official shall serve for more than three (3) consecutive terms in the same position: Provided, however, that the term of office shall be reckoned from the 1994 barangay elections. Voluntary renunciation of office [for] any length of time shall not be considered as an interruption in the continuity of service for the full term for which the elective official was elected."7 xxxx In his Answer,8 Laceda admitted having served as Punong Barangay of Panlayaan for three consecutive terms. However, he asserted that when he was elected for his first two terms, Sorsogon was still a municipality, and that when he served his third term, the Municipality of Sorsogon had already been merged with the Municipality of Bacon to form a new political unit, the City of Sorsogon, pursuant to Republic Act No. 8806.9 Thus, he argued that his third term was actually just his first in the new political unit and that he was accordingly entitled to run for two more terms. Laceda likewise argued that assuming he had already served three consecutive terms, Rep. Act No. 9164 which imposes the three-term limit, cannot be made to apply to him as it would violate his vested right to office. He alleged that when he was elected in 1994 the prohibition did not exist. Had he known that there will be a law preventing him to run for the fourth time, he would not have run for office in 1994 as he was looking forward to the election in 2007.10 On January 15, 2008, the COMELEC declared Laceda disqualified and cancelled his certificate of candidacy: WHEREFORE, this Commission RESOLVED, as it hereby RESOLVED, to declare Respondent Roberto Laceda, Sr. DISQUALIFIED from running as Punong Barangay of Panlayaan, West District, Sorsogon City and consequently denies due course and cancels his Certificate of Candidacy. SO ORDERED.11 Laceda moved for reconsideration, but his motion was denied by the COMELEC in a Resolution dated May 7, 2008. Aggrieved, Laceda filed a petition for certiorari before this Court. On June 10, 2008, this Court dismissed the petition for failure to sufficiently show that any grave abuse of discretion was committed by the COMELEC in rendering the assailed Resolutions of January 15, 2008 and May 7, 2008. Hence, this motion for reconsideration. Laceda insists that the COMELEC committed grave abuse of discretion in basing its decision on the requisites enunciated in Lonzanida v. Commission on Elections12 for the application of the three-term prohibition in Section 4313 of the Local Government Code.14 Laceda argues

Laceda Sr. Vs. Limena

that said case is inapplicable since it involved the position of municipal mayor while the instant case concerned the position of Punong Barangay. He likewise insists that he served his third term in a new political unit and therefore he should not be deemed already to have served a third term as Punong Barangay for purposes of applying the three-term limit.15 For reasons hereafter discussed, the motion for reconsideration cannot prosper. Section 2 of Rep. Act No. 9164, like Section 43 of the Local Government Code from which it was taken, is primarily intended to broaden the choices of the electorate of the candidates who will run for office, and to infuse new blood in the political arena by disqualifying officials from running for the same office after a term of nine years. This Court has held that for the prohibition to apply, two requisites must concur: (1) that the official concerned has been elected for three consecutive terms in the same local government post and (2) that he or she has fully served three consecutive terms.16 In this case, while it is true that under Rep. Act No. 8806 the municipalities of Sorsogon and Bacon were merged and converted into a city thereby abolishing the former and creating Sorsogon City as a new political unit, it cannot be said that for the purpose of applying the prohibition in Section 2 of Rep. Act No. 9164, the office of Punong Barangay of Barangay Panlayaan, Municipality of Sorsogon, would now be construed as a different local government post as that of the office of Punong Barangay of Barangay Panlayaan, Sorsogon City. The territorial jurisdiction of Barangay Panlayaan, Sorsogon City, is the same as before the conversion. Consequently, the inhabitants of the barangay are the same. They are the same group of voters who elected Laceda to be their Punong Barangay for three consecutive terms and over whom Laceda held power and authority as their Punong Barangay. Moreover, Rep. Act No. 8806 did not interrupt Laceda's term. In Latasa v. Commission on Elections,17 which involved a similar question, this Court held that where a person has been elected for three consecutive terms as a municipal mayor and prior to the end or termination of such three-year term the municipality has been converted by law into a city, without the city charter interrupting his term until the end of the three-year term, the prohibition applies to prevent him from running for the fourth time as city mayor thereof, there being no break in the continuity of the terms. Thus, conformably with the democratic intent of Rep. Act No. 9164 and this Court's ruling in Latasa v. Commission on Elections, we hold that the prohibition in Section 2 of said statute applies to Laceda. The COMELEC did not err nor commit any abuse of discretion when it declared him disqualified and cancelled his certificate of candidacy. WHEREFORE, petitioner Roberto Laceda, Sr.'s Motion for Reconsideration18 dated July 25, 2008 assailing this Court's Resolution dated June 10, 2008 is DENIED with FINALITY. SO ORDERED.

Ong vs. Alegre

EN BANC
FRANCIS G. ONG, Present: PANGANIBAN, C.J. PUNO, QUISUMBING, YNARES-SANTIAGO, SANDOVAL-GUTIERREZ, CARPIO AUSTRIA-MARTINEZ, CORONA, CARPIO MORALES, CALLEJO, SR., AZCUNA, TINGA, CHICO-NAZARIO, and GARCIA, JJ. G.R. Petitioner, No. 163295

- versus -

JOSEPH STANLEY ALEGRE and Promulgated: COMMISSION ON ELECTIONS, Respondents. January 23, 2006 x---------------------x ROMMEL G. ONG, Petitioner, versus G.R. No. 163354

JOSEPH STANLEY ALEGRE and COMMISSION ON ELECTIONS, Respondents. x----------------------------------------x

Ong vs. Alegre

DECISION GARCIA, J.:

Before the Court are these two separate petitions under Rule 65 of the Rules of Court to nullify and set aside certain issuances of the Commission on Elections (COMELEC) en banc. The first, docketed as G.R. No. 163295, is a petition for certiorari with petitioner Francis G. Ong impugning the COMELEC en bancresolution[1] dated May 7, 2004 in SPA Case No. 04-048, granting private respondent Joseph Stanley Alegre's motion for reconsideration of the resolution dated March 31, 2004[2] of the COMELECs First Division. The second, G.R. No. 163354, is for certiorari, prohibition and mandamus, with application for injunctive relief, filed by petitioner Rommel Ong, brother of Francis, seeking, among other things, to stop the COMELEC from enforcing and implementing its aforesaid May 7, 2004 en banc resolution in SPA Case No. 04-048 pending the outcome of the petition in G.R. No. 163295. Per its en banc Resolution of June 1, 2004, the Court ordered the consolidation of these petitions. The recourse stemmed from the following essential and undisputed factual backdrop: Private respondent Joseph Stanley Alegre (Alegre) and petitioner Francis Ong (Francis) were candidates who filed certificates of candidacy for mayor of San Vicente, Camarines Norte in the May 10, 2004 elections. Francis was then the incumbent mayor. On January 9, 2004, Alegre filed with the COMELEC Provincial Office a Petition to Disqualify, Deny Due Course and Cancel Certificate of Candidacy[3] of Francis. Docketed

Ong vs. Alegre

as SPA Case No. 04-048, the petition to disqualify was predicated on the threeconsecutive term rule, Francis having, according to Alegre, ran in the May 1995, May 1998, and May 2001 mayoralty elections and have assumed office as mayor and discharged the duties thereof for three (3) consecutive full terms corresponding to those elections. To digress a bit, the May 1998 elections saw both Alegre and Francis opposing each other for the office of mayor of San Vicente, Camarines Norte, with the latter being subsequently proclaimed by COMELEC winner in that contest. Alegre subsequently filed an election protest, docketed as Election Case No. 6850 before the Regional Trial Court (RTC) at Daet, Camarines Norte. In it, the RTC declared Alegre as the duly elected mayor in that 1998 mayoralty contest,[4] albeit the decision came out only on July 4, 2001, when Francis had fully served the 1998-2001 mayoralty term and was in fact already starting to serve the 2001-2004 term as mayor-elect of the municipality of San Vicente. Acting on Alegres petition to disqualify and to cancel Francis certificate of candidacy for the May 10, 2004 elections, the First Division of the COMELEC rendered on March 31, 2004 a resolution[5] dismissing the said petition of Alegre, rationalizing as follows:
We see the circumstances in the case now before us analogous to those obtaining in the sample situations addressed by the Highest Court in the Borja case. Herein, one of the requisites for the application of the three term rule is not present. Francis Ong might have indeed fully served the mayoral terms of 1995 to 1998; 1998 to 2001 and 2001 to 2004. The mayoral term however, from 1998 to 2001 cannot be considered his because he was not duly elected thereto. The [RTC] of Daet, Camarines Norte, Branch 41 has voided his election for the 1998 term when it held, in its decision that Stanley Alegre was the legally elected mayor in the 1998 mayoralty election in San Vicente, Camarines Norte. This disposition had become final after the [COMELEC] dismissed the appeal filed by Ong, the case having become moot and academic. xxx xxx xxx

On the basis of the words of the Highest Court pronounced in the Lonzanida case and applicable in the case at bench, Ong could not be considered as having served as mayor from 1998 to 2001 because he was not duly elected to the post; he merely assumed office as a presumptive winner; which presumption was later overturned when [the RTC] decided with finality that [he] lost in the May 1998 elections. (Words in bracket and emphasis in the original).

Undaunted, Alegre filed a timely motion for reconsideration, contending, in the main, that there was a misapplication of the three-term rule, as applied in the cited cases of Borja vs. Comelec and Lonzanida vs. Comelec, infra.

Ong vs. Alegre

On May 7, 2004, the COMELEC en banc issued, in SPA No. 04-048, a resolution[6] reversing the March 31, 2004 resolution of the COMELECs First Division and thereby (a) declaring Francis as disqualified to run for mayor of San Vicente, Camarines Norte in the May 10, 2004; (b) ordering the deletion of Francis name from the official list of candidates; and (c) directing the concerned board of election inspectors not to count the votes cast in his favor. The following day, May 8, Francis received a fax machine copy of the aforecited May 7, 2004 resolution, sending him posthaste to seek the assistance of his political party, the Nationalist Peoples Coalition, which immediately nominated his older brother, Rommel Ong(Rommel), as substitute candidate. At about 5:05 p.m. of the very same day - which is past the deadline for filing a certificate of candidacy, Rommel filed his own certificate of candidacy for the position of mayor, as substitute candidate for his brother Francis. The following undisputed events then transpired:
1. On May 9, 2004, or a day before the May 10 elections, Alegre filed a Petition to Deny Due Course to or Cancel Certificate of Rommel Ong.

2. Atty. Evillo C. Pormento, counsel for the Ong brothers, addressed a letter[7] to Provincial Election Supervisor (PES) of Camarines Norte Liza Z. Cario and Acting Election Officer Emily G. Basilonia in which he appealed that, owing to the COMELECs inaction on Alegre's petition to cancel Rommels certificate of candidacy, the name Rommel Ong be included in the official certified list of candidates for mayor of San Vicente, Camarines Norte. The desired listing was granted by the PES Carino.

3. On May 10, 2004, Alegre wrote[8] to then COMELEC Commissioner Virgilio Garcillano, Commissioner-in-Charge for Regions IV and V, seeking clarification on the legality of the action thus taken by the PES Cario. Responding, Commissioner Garcillano issued a Memorandum under date May 10, 2004[9] addressed to PES Liza D. Zabala-Cario, ordering her to implement the resolution of the COMELEC en banc in SPA No. 04-048 promulgated on May 7, 2004.[10] Said Memorandum partly stated:

The undersigned ADOPTS the recommendation of Atty. Alioden D. Dalaig [Director IV, Law Department], which he quote your stand, "that substitution is not proper if the certificate of the substituted candidacy is denied due course. In the Resolution of the Commission En banc, the Certificate of candidacy of Francis Ong was denied due course," and elaborated further that: "x x x there is an existing policy of the Commission not to include the name of a substitute candidate in the certified list of candidates unless the substitution is approved by the Commission. In view, thereof, it is recommended that 1) the substitute certificate of candidacy of Rommel Ong Gan Ong, should be denied due course; and 2) the election officer be directed to delete his name from the list of candidates." The above position of the Commission was in line with the pronouncement of Supreme Court in Miranda vs. Abaya (311 SCRA 617) which states: "There can no valid substitution where a candidate is excluded not only by disqualification but also by denial and cancellation of his certificate of candidacy."

Ong vs. Alegre


In view thereof, you are hereby directed to faithfully implement the said Resolution of the Commission En Banc in SPA No. 04-048 promulgated on May 7, 2004. (Emphasis in the original; words in bracket added].

Owing to the aforementioned Garcillano Memorandum, it would seem that the Chairman of the Municipal Board of Canvasser of San Vicente

issued an order enjoining all concerned not to canvass the votes cast for Rommel, prompting the latter to file a protest with that Board.[11] 5. On May 11, 2004, the Municipal Board of Canvassers proclaimed Alegre as the winning candidate for the mayoralty post in San Vicente, Camarines Norte.[12]

On May 12, 2004, Francis filed before the Court a petition for certiorari, presently docketed as G.R. No. 163295. His brother Rommels petition in G.R. No. 163354 followed barely a week after. In our en banc resolution dated June 1, 2004, G.R. No. 163295 and G.R. No. 163354 were consolidated.[13] Meanwhile, on June 4, 2004, the COMELEC issued an order dismissing private respondent Alegres Petition to Deny Due Course to or Cancel Certificate of Candidacy of Rommel Ong, for being moot and academic.[14] The issues for resolution of the Court are: In G.R. No. 163295, whether the COMELEC acted with grave abuse of discretion amounting to lack or excess of jurisdiction in issuing its en banc resolution dated May 7, 2004 declaring petitioner Francis as disqualified to run for Mayor of San Vicente, Camarines Norte in the May 10, 2004 elections and consequently ordering the deletion of his name from the official list of candidates so that any vote cast in his favor shall be considered stray. In G.R. No. 163354, whether the COMELEC committed grave abuse of discretion when it denied due course to Rommels certificate of candidacy in the same mayoralty election as substitute for his brother Francis. A resolution of the issues thus formulated hinges on the question of whether or not petitioner Franciss assumption of office as Mayor of San Vicente, Camarines Norte for

Ong vs. Alegre

the mayoralty term 1998 to 2001 should be considered as full service for the purpose of the three-term limit rule. Respondent COMELEC resolved the question in the affirmative. Petitioner Francis, on the other hand, disagrees. He argues that, while he indeed assumed office and discharged the duties as Mayor of San Vicente for three consecutive terms, his proclamation as mayor-elect in the May 1998 election was contested and eventually nullified per the decision of the RTC of Daet, Camarines Norte dated July 4, 2001. Pressing the point, petitioner argues, citing Lonzanida vs. Comelec[15], that a proclamation subsequently declared void is no proclamation at all and one assuming office on the strength of a protested proclamation does so as a presumptive winner and subject to the final outcome of the election protest. The three-term limit rule for elective local officials is found in Section 8, Article X of the 1987 Constitution, which provides:
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.

Section 43 (b) of the Local Government Code restates the same rule as follows:
Sec. 43. Term of Office. xxx xxx xxx

(b) No local elective official shall serve for more than three consecutive years in the same position. Voluntary renunciation of the office for any length of time shall not be considered an interruption in the continuity of service for the full term for which the elective official concerned was elected.

For the three-term limit for elective local government officials to apply, two conditions or requisites must concur, to wit: (1) that the official concerned has been elected for three (3) consecutive terms in the same local government post, and (2) that he has fully served three (3) consecutive terms.[16] With the view we take of the case, the disqualifying requisites are present herein, thus effectively barring petitioner Francis from running for mayor of San Vicente, Camarines Norte in the May 10, 2004 elections. There can be no dispute about petitioner Francis Ong having been duly elected mayor of that municipality in the May 1995 and

Ong vs. Alegre

again in the May 2001 elections and serving the July 1, 1995- June 30, 1998 and the July 1, 2001-June 30, 2004 terms in full. The herein controversy revolves around the 19982001 mayoral term, albeit there can also be no quibbling that Francis ran for mayor of the same municipality in the May 1998 elections and actually served the 1998-2001 mayoral term by virtue of a proclamation initially declaring him mayor-elect of the municipality of San Vicente. The question that begs to be addressed, therefore, is whether or not Franciss assumption of office as Mayor of San Vicente, Camarines Norte from July 1, 1998 to June 30, 2001, may be considered as one full term service in the context of the consecutive three-term limit rule. We hold that such assumption of office constitutes, for Francis, service for the full term, and should be counted as a full term served in contemplation of the three-term limit prescribed by the constitutional and statutory provisions, supra, barring local elective officials from being elected and serving for more than three consecutive term for the same position. It is true that the RTC-Daet, Camarines Norte ruled in Election Protest Case No. 6850, that it was Francis opponent (Alegre) who won in the 1998 mayoralty race
[17]

and, therefore, was the legally elected mayor of San Vicente. However, that disposition, it must be stressed, was without practical and legal use and value, having been promulgated after the term of the contested office has expired. Petitioner Francis contention that he was only a presumptive winner in the 1998 mayoralty derby as his proclamation was under protest did not make him less than a duly elected mayor. His proclamation by the Municipal Board of Canvassers of San Vicente as the duly elected mayor in the 1998 mayoralty election coupled by his assumption of office and his continuous exercise of the functions thereof from start to finish of the term, should legally be taken as service for a full term in contemplation of the three-term rule. The absurdity and the deleterious effect of a contrary view is not hard to discern. Such contrary view would mean that Alegre would under the three-term rule - be considered as having served a term by virtue of a veritably meaningless electoral protest ruling, when another actually served such term pursuant to a proclamation made in due course after an election.

Ong vs. Alegre

Petitioner cites, but, to our mind, cannot seek refuge from the Courts ruling in, Lonzanida vs. Comelec,[18] citing Borja vs. Comelec[19]. In Lonzanida, petitioner Lonzanida was elected and served for two consecutive terms as mayor of San Antonio, Zambales prior to the May 8, 1995 elections. He then ran again for the same position in the May 1995 elections, won and discharged his duties as Mayor. However, his opponent contested his proclamation and filed an election protest before the RTC of Zambales, which, in a decision dated January 9, 1997, ruled that there was a failure of elections and declared the position vacant. The COMELEC affirmed this ruling and petitioner Lonzanida acceded to the order to vacate the post. Lonzanida assumed the office and performed his duties up to March 1998 only. Now, during the May 1998 elections, Lonzanida again ran for mayor of the same town. A petition to disqualify, under the three-term rule, was filed and was eventually granted. There, the Court held that Lonzanida cannot be considered as having been duly elected to the post in the May 1995 election, and that he did not fully serve the 1995-1998 mayoralty term by reason of involuntary relinquishment of office. As the Court pointedly observed, Lonzanida cannot be deemed to have served the May 1995 to 1998 term because he was ordered to vacate [and in fact vacated] his post before the expiration of the term. The difference between the case at bench and Lonzanida is at once apparent. For one, in Lonzanida, the result of the mayoralty election was declared a nullity for the stated reason of failure of election, and, as a consequence thereof, the proclamation of Lonzanida as mayor-elect was nullified, followed by an order for him to vacate the office of mayor. For another, Lonzanida did not fully serve the 1995-1998 mayoral term, there being an involuntary severance from office as a result of legal processes. In fine, there was an effective interruption of the continuity of service. On the other hand, the failure-of-election factor does not obtain in the present case. But more importantly, here, there was actually no interruption or break in the continuity of Francis service respecting the 1998-2001 term. Unlike Lonzanida, Francis was never unseated during the term in question; he never ceased discharging his duties and responsibilities as mayor of San Vicente, Camarines Norte for the entire period covering the 1998-2001 term.

Ong vs. Alegre

The ascription, therefore, of grave abuse of discretion on the part of the COMELEC en banc when it disqualified Francis from running in the May 10, 2004 elections for the mayoralty post of San Vicente and denying due course to his certificate of candidacy by force of the constitutional and statutory provisions regarding the threeterm limit rule for any local elective official cannot be sustained. What the COMELEC en banc said in its May 7, 2004 assailed Resolution commends itself for concurrence:
As correctly pointed out by Petitioner-Movant [Alegre]in applying the ruling in the Borja and Lonzanida cases in the instant petition will be erroneous because the factual milieu in those cases is different from the one obtaining here. Explicitly, the three-term limit was not made applicable in the cases of Borja and Lonzanida because there was an interruption in the continuity of service of the three consecutive terms. Here, Respondent Ong would have served continuously for three consecutive terms, from 1995 to 2004. His full term from 1998 to 2001 could not be simply discounted on the basis that he was not duly elected thereto on account of void proclamation because it would have iniquitous effects producing outright injustice and inequality as it rewards a legally disqualified and repudiated loser with a crown of victory. (Word in bracket added; emphasis in the original)

Given the foregoing consideration, the question of whether or not then Commissioner Virgilio Garcillano overstepped his discretion when he issued the May 10, 2004 Memorandum, ordering the implementation of aforesaid May 7, 2004 COMELEC en banc resolution even before its finality[20] is now of little moment and need not detain us any longer.

Just as unmeritorious as Francis petition in G.R. No. 163295 is Rommels petition in G.R. No. 163354 in which he (Rommel) challenges the COMELEC's act of not including his name as a substitute candidate in the official list of candidates for the May 10, 2004 elections. As it were, existing COMELEC policy[21] provides for the non-inclusion of the name of substitute candidates in the certified list of candidates pending approval of the substitution.

Not to be overlooked is the Courts holding in Miranda vs. Abaya,[22] that a candidate whose certificate of candidacy has been cancelled or not given due course cannot be substituted by another belonging to the same political party as that of the former, thus:

Ong vs. Alegre

While there is no dispute as to whether or not a nominee of a registered or accredited political party may substitute for a candidate of the same party who had been disqualified for any cause, this does not include those cases where the certificate of candidacy of the person to be substituted had been denied due course and cancelled under Section 78 of the Code. Expressio unius est exclusio alterius. While the law enumerated the occasions where a candidate may be validly substituted, there is no mention of the case where a candidate is excluded not only by disqualification but also by denial and cancellation of his certificate of candidacy. Under the foregoing rule, there can be no valid substitution for the latter case, much in the same way that a nuisance candidate whose certificate of candidacy is denied due course and/or cancelled may not be substituted. If the intent of the lawmakers were otherwise, they could have so easily and conveniently included those persons whose certificates of candidacy have been denied due course and/or cancelled under the provisions of Section 78 of the Code. xxx xxx xxx

A person without a valid certificate of candidacy cannot be considered a candidate in much the same way as any person who has not filed any certificate of candidacy at all can not, by any stretch of the imagination, be a candidate at all. xxx xxx xxx

After having considered the importance of a certificate of candidacy, it can be readily understood why in Bautista [Bautista vs. Comelec, G.R. No. 133840, November 13, 1998] we ruled that a person with a cancelled certificate is no candidate at all. Applying this principle to the case at bar and considering that Section 77 of the Code is clear and unequivocal that only an official candidate of a registered or accredited party may be substituted, there demonstrably cannot be any possible substitution of a person whose certificate of candidacy has been cancelled and denied due course.

In any event, with the hard reality that the May 10, 2004 elections were already pass, Rommel Ongs petition in G.R. No. 163354 is already moot and academic.

WHEREFORE, the instant petitions are DISMISSED and the assailed en banc Resolution dated May 7, 2004 of the COMELEC, in SPA No. 04-048 AFFIRMED.

Costs against petitioners.

SO ORDERED.

Rivera III vs. COMELEC

EN BANC
ATTY. VENANCIO Q. RIVERA III and ATTY. NORMANDICK DE GUZMAN, Petitioners, -versusCOMELEC and BOKING MORALES, MARINO G.R. No. 167591

Respondents. x---------------------------------------------x ANTHONY D. DEE, Petitioner,

G.R. No. 170577 Present: PUNO, C.J., QUISUMBING, YNARES-SANTIAGO, SANDOVAL-GUTIERREZ, CARPIO, * AUSTRIA-MARTINEZ, * CORONA, CARPIO MORALES, AZCUNA, TINGA, CHICO-NAZARIO, GARCIA, VELASCO, JR., and ** NACHURA, JJ.

-versus-

COMELEC and BOKING MORALES,

MARINO Promulgated: Respondents. May 9, 2007

x-----------------------------------------------------------------------------------------x DECISION SANDOVAL-GUTIERREZ, J.: For our resolution are two consolidated petitions for certiorari under Rule 65 of the 1997 Rules of Civil Procedure, as amended, assailing the Resolutions dated March 14, 2005 and November 8, 2005 of the COMELEC En Banc. G.R. No. 167591

Rivera III vs. COMELEC

ATTY. VENANCIO Q. RIVERA III and ATTY. NORMANDICK DE GUZMAN v. COMELEC and MARINO BOKING MORALES In the May 2004 Synchronized National and Local Elections, respondent Marino Boking Morales ran as candidate for mayor of Mabalacat, Pampanga for the term commencing July 1, 2004 to June 30, 2007. Prior thereto or on January 5, 2004, he filed his Certificate of Candidacy. On January 10, 2004, Attys. Venancio Q. Rivera and Normandick De Guzman, petitioners, filed with the Second Division of the Commission on Elections (COMELEC) a petition to cancel respondent Morales Certificate of Candidacy on the ground that he was elected and had served three previous consecutive terms as mayor of Mabalacat. They alleged that his candidacy violated Section 8, Article X of the Constitution and Section 43 (b) of Republic Act (R.A.) No. 7160, also known as the Local Government Code. In his answer to the petition, respondent Morales admitted that he was elected mayor of Mabalacat for the term commencing July 1, 1995 to June 30, 1998 (first term) and July 1, 2001 to June 30, 2004 (third term), but he served the second term from July 1, 1998 to June 30, 2001 only as a caretaker of the office or as a de facto officer because of the following reasons: a. He was not validly elected for the second term 1998 to 2001 since his proclamation as mayor was declared void by the Regional Trial Court (RTC), Branch 57, Angeles City in its Decision dated April 2, 2001 in Election Protest Case (EPC) No. 98-131. The Decision became final and executory on August 6, 2001; and b. He was preventively suspended by the Ombudsman in an anti-graft case from January 16, 1999 to July 15, 1999. On May 6, 2004, the COMELEC Second Division rendered its Resolution finding respondent Morales disqualified to run for the position of municipal mayor on the ground that he had already served three (3) consecutive terms. Accordingly, his Certificate of Candidacy was cancelled. On May 7, 2004, he filed with the COMELEC En Banc a motion for reconsideration. On March 14, 2005, the COMELEC En Banc issued a Resolution granting respondent Morales motion for reconsideration and setting aside that of the Second Division. The COMELEC En Banc held that since the Decision in EPC No. 98-131 of the RTC, Branch 57, Angeles City declared respondent Morales proclamation void, his discharge of the duties in

Rivera III vs. COMELEC

the Office of the Mayor in Mabalacat is that of a de facto officer or a de facto mayor. Therefore, his continuous service for three consecutive terms has been severed. Hence, this petition for certiorari. G.R. No. 170577 ANTHONY DEE v. COMMISSION ON ELECTIONS and MARIO BOKING MORALES On May 24, 2004, after respondent Morales was proclaimed the duly elected mayor of Mabalacat for the term commencing July 1, 2004 to June 30, 2007, petitioner Anthony Dee, also a candidate for mayor, filed with the RTC, Branch 61, Angeles City a petition for quo warranto against the said respondent. Petitioner alleged that respondent Morales, having served as mayor for three consecutive terms, is ineligible to run for another term or fourth term. The case was docketed as Civil Case No. 11503. In his answer, respondent Morales raised the following defenses: a. He was not validly elected for the term 1998 to 2001 since the RTC, Branch 57, Angeles City declared in its Decision that his proclamation as mayor of Mabalacat was void. Petitioner Dee was then proclaimed the duly elected mayor; and b. He was preventively suspended for six months by the Ombudsman, during the same term in an anti-graft case, an interruption in the continuity of his service as municipal mayor of Mabalacat.[1] In its Decision dated November 22, 2004, the RTC dismissed petitioner Dees petition for quo warranto on the ground that respondent Morales did not serve the three-term limit since he was not the duly elected mayor of Mabalacat, but petitioner Dee in the May 1998 elections for the term 1998 to 2001, thus:
Respondent, Marino Morales, was not the duly elected mayor of Mabalacat, Pampanga in the May 1998 elections for the term 1998 to 2001 because although he was proclaimed as the elected mayor of Mabalacat, Pampanga by the Municipal Board of Canvassers, had assumed office and discharged the duties of mayor, his close rival, the herein petitioner, Anthony D. Dee, was declared the duly elected Mayor of Mabalacat, Pampanga in the Decision promulgated on April 2, 2001 in Election Protest EPC No. 98-131 filed by Anthony Dee against herein respondent, Marino Morales, and decided by RTC, Br. 57, Angeles City. x x x.

Rivera III vs. COMELEC

Petitioner Dee interposed an appeal to the COMELEC First Division, alleging that respondent Morales violated the three-term limit rule when he ran for re-election (fourth time) as mayor in the 2004 elections. Consequently, his proclamation as such should be set aside. In a Resolution dated July 29, 2005 the COMELEC First Division issued a Resolution dismissing the appeal. It held that respondent Morales cannot be deemed to have served as mayor of Mabalacat during the term 1998 to 2001 because his proclamation was declared void by the RTC, Branch 57 of Angeles City. He only served as a caretaker, thus, his service during that term should not be counted. On August 12, 2005, petitioner Dee filed with the COMELEC En Banc a motion for reconsideration. In a Resolution dated November 8, 2005, the COMELEC En Banc affirmed the questioned Resolution of the Second Division. Hence, petitioner Dees instant petition for certiorari. Both cases may be decided based on the same facts and issues. It is undisputed that respondent Morales was elected to the position of mayor of Mabalacat for the following consecutive terms: a) b) c) d) July 1, 1995 to June 30, 1998 July 1, 1998 to June 30, 2001 July 1, 2001 to June 30, 2004 July 1, 2004 to June 30, 2007

THE PRINCIPAL ISSUE. Respondent Morales argued and the Comelec held that the July 1, 2003 to June 30, 2007 term is not his fourth because his second term, July 1, 1998 toJune 30, 2001 to which he was elected and which he served, may not be counted since his proclamation was declared void by the RTC, Branch 57 of Angeles City. Respondent Morales is wrong. This Court, through Mr. Justice Cancio C. Garcia, resolved the same issue in Ong v. Alegre[2] with identical facts, thus:
To digress a bit, the May 1998 elections saw both Alegre and Francis opposing each other for the office of mayor of San Vicente, Camarines Norte, with the latter being subsequently proclaimed by the COMELEC winner in the contest. Alegre subsequently filed an election protest, docketed as Election Case No. 6850 before the Regional Trial Court (RTC) at Daet, Camarines Norte. In it, the RTC declared Alegre as the duly elected mayor in that 1998 mayoralty contest,

Rivera III vs. COMELEC

albeit the decision came out only on July 4, 2001, when Francis had fully served the 1998-2001 mayoralty term and was in fact already starting to serve the 2001-2004 term as mayor-elected for the municipality of San Vicente. x x x A resolution of the issues thus formulated hinges on the question of whether or not petitioner Francis assumption of office as mayor of San Vicente, Camarines Norte for the mayoralty term 1998 to 2001 should be considered as full service for the purpose of the three-term limit rule. Respondent COMELEC resolved the question in the affirmative. Petitioner Francis, on the other hand, disagrees. He argues that, while he indeed assumed office and discharged the duties as Mayor of San Vicente for three consecutive terms, his proclamation as mayor-elected in the May 1998 election was contested and eventually nullified per the Decision of the RTC of Daet, Camarines Norte dated July 4, 2001. Pressing the point, petitioner argues, citing Lonzanida v. Comelec, that a proclamation subsequently declared void is no proclamation at all and one assuming office on the strength of a protested proclamation does so as a presumptive winner and subject to the final outcome of the election protest. x x x For the three-term limit for elective local government officials to apply, two conditions or requisites must concur, to wit: (1) that the official concerned has been elected for three (3) consecutive terms in the same local government post, and (2) that he has fully served three (3) consecutive terms. With the view we take of the case, the disqualifying requisites are present herein, thus effectively barring petitioner Francis from running for mayor of San Vicente, Camarines Norte in the May 10, 2004 elections. There can be no dispute about petitioner Francis Ong having been duly elected mayor of that municipality in the May 1995 and again in the May 2001 elections and serving the July 1, 1995-June 30, 1998 and the July 1, 2001-June 30, 2004 terms in full. The herein controversy revolves around the 1998-2001 mayoral term, albeit there can also be no quibbling that Francis ran for mayor of the same municipality in the May 1998 elections and actually served the 1998-2001 mayoral term by virtue of a proclamation initially declaring him mayor-elect of the municipality of San Vicente. The question that begs to be addressed, therefore, is whether or not Francis assumption of office as Mayor of San Vicente, Camarines Norte from July 1, 1998 to June 30, 2001, may be considered as one full term service in the context of the consecutive three-term limit rule. We hold that such assumption of office constitutes, for Francis, service for the full term, and should be counted as a full term served in contemplation of the three-term limit prescribed by the constitutional and statutory provisions, supra, barring local elective officials from being elected and serving for more than three consecutive terms for the same position. It is true that the RTC-Daet, Camarines Norte ruled in Election Protest Case No. 6850, that it was Francis opponent (Alegre) who won in the 1998 mayoralty race and, therefore, was the legally elected mayor of San Vicente. However, that disposition, it must be stressed, was without practical and legal use and value, having been promulgated after the term of the contested office has expired. Petitioner Francis contention that he was only a presumptive winner in the 1998 mayoralty derby as his proclamation was under protest did not make him less than a duly elected mayor. His proclamation by the Municipal Board of Canvassers of San Vicente as the duly elected

Rivera III vs. COMELEC

mayor in the 1998 mayoralty election coupled by his assumption of office and his continuous exercise of the functions thereof from start to finish of the term, should legally be taken as service for a full term in contemplation of the three-term rule. The absurdity and the deleterious effect of a contrary view is not hard to discern. Such contrary view would mean that Alegre would-under the three-term rule-be considered as having served a term by virtue of a veritably meaningless electoral protest ruling, when another actually served such term pursuant to a proclamation made in due course after an election. Petitioner cites, but, to our mind, cannot seek refuge from the Courts ruling in Lonzanida v. Comelec, citing Borja v. Comelec. In Lonzanida, petitioner Lonzanida was elected and served for two consecutive terms as mayor of San Antonio, Zambales prior to the May 8, 1995 elections. He then ran again for the same position in the May 1995 elections, won and discharged his duties as Mayor. However, his opponent contested his proclamation and filed an election protest before the RTC of Zambales, which, in a decision dated January 8, 1997, ruled that there was a failure of elections and declared the position vacant. The COMELEC affirmed this ruling and petitioner Lonzanida acceded to the order to vacate the post. Lonzanida assumed the office and performed his duties up to March 1998 only. Now, during the May 1998 elections, Lonzanida again ran for mayor of the same town. A petition to disqualify, under the three-term rule, was filed and was eventually granted. There, the Court held that Lonzanida cannot be considered as having been duly elected to the post in the May 1995 election, and that he did not fully serve the 1995-1998 mayoralty term by reason of involuntary relinquishment of office. As the Court pointedly observed, Lonzanida cannot be deemed to have served the May 1995 to 1998 term because he was ordered to vacate [and in fact vacated] his post before the expiration of the term. The difference between the case at bench and Lonzanida is at once apparent. For one, in Lonzanida, the result of the mayoralty elections was declared a nullity for the stated reason of failure of election, and, as a consequence thereof, the proclamation of Lonzanida as mayor-elect was nullified, followed by an order for him to vacate the office of the mayor. For another, Lonzanida did not fully serve the 1995-1998 mayoral term, there being an involuntary severance from office as a result of legal processes. In fine, there was an effective interruption of the continuity of service. On the other hand, the failure-of-election factor does not obtain in the present case. But more importantly, here, there was actually no interruption or break in the continuity of Francis service respecting the 1998-2001 term. Unlike Lonzanida, Francis was never unseated during the term in question; he never ceased discharging his duties and responsibilities as mayor of San Vicente, Camarines Norte for the entire period covering the 1998-2001 term.

It bears stressing that in Ong v. Alegre cited above, Francis Ong was elected and assumed the duties of the mayor of San Vicente, Camarines Norte for three consecutive terms. But his proclamation as mayor in the May 1998 election was declared void by the RTC of Daet, Camarines Norte in its Decision dated July 4, 2001. As ruled by this Court, his service for the term 1998 to 2001 is for the full term. Clearly, the three-term limit rule applies to him. Indeed, there is no reason why this ruling should not also apply to respondent Morales who is similarly situated.

Rivera III vs. COMELEC

Here, respondent Morales invoked not only Lonzanida v. COMELEC,[3] but also Borja, Jr. v. Commission on Elections[4] which is likewise inapplicable. The facts in Borja are:
Private respondent Jose T. Capco was elected vice-mayor of Pateros on January 18, 1998 for a term ending June 30, 1992. On September 2, 1989, he became mayor, by operation of law, upon the death of the incumbent, Cesar Borja. On May 11, 1992, he ran and was elected mayor for a term of three years which ended on June 30, 1995. On May 8, 1995, he was reelected mayor for another term of three years ending June 30, 1998. On March 27, 1998, private respondent Capco filed a certificate of candidacy for mayor of Pateros relative to the May 11, 1998 elections, Petitioner Benjamin U. Borja, Jr., who was also a candidate for mayor, sought Capcos disqualification on the theory that the latter would have already served as mayor for three consecutive terms by June 30, 1998 and would therefore be ineligible to serve for another term after that. On April 30, 1998, the Second Division of the Commission on Elections ruled in favor of petitioner and declared private respondent Capco disqualified from running for reelection as mayor of Pateros. However, on motion of private respondent, the COMELEC en banc, voting 5-2, reversed the decision and declared Capco eligible to run for mayor in the May 11, 1998 elections. x xx

This Court held that Capcos assumption of the office of mayor upon the death of the incumbent may not be regarded as a term under Section 8, Article X of the Constitution and Section 43 (b) of R.A. No. 7160 (the Local Government Code). He held the position from September 2, 1989 to June 30, 1992, a period of less than three years. Moreover, he was not elected to that position. Similarly, in Adormeo v. COMELEC,[5] this Court ruled that assumption of the office of mayor in a recall election for the remaining term is not the term contemplated under Section 8, Article X of the Constitution and Section 43 (b) of R.A. No. 7160 (the Local Government Code). As the Court observed, there was a break in the service of private respondent Ramon T. Talanga as mayor. He was a private citizen for a time before running for mayor in the recall elections. Here, respondent Morales was elected for the term July 1, 1998 to June 30, 2001. He assumed the position. He served as mayor until June 30, 2001. He was mayor for the entire period notwithstanding the Decision of the RTC in the electoral protest case filed by petitioner Dee ousting him (respondent) as mayor. To reiterate, as held in Ong v. Alegre,[6] such circumstance does not constitute an interruption in serving the full term. Section 8, Article X of the Constitution can not be more clear and explicit

Rivera III vs. COMELEC

The term of the office of elected local officials x x x, shall be three years and no such official shall serve for more than three consecutive terms. x x x

Upon the other hand, Section 43 (b) of R.A. No. 7160 (the Local Government Code) clearly provides:
No local official shall serve for more than three consecutive terms in the same position. x x x

Respondent Morales is now serving his fourth term. He has been mayor of Mabalacat continuously without any break since July 1, 1995. In just over a month, by June 30, 2007, he will have been mayor of Mabalacat for twelve (12) continuous years. In Latasa v. Comelec,[7] the Court explained the reason for the maximum term limit, thus:
The framers of the Constitution, by including this exception, wanted to establish some safeguards against the excessive accumulation of power as a result of consecutive terms. As Commissioner Blas Ople stated during the deliberations: x x x I think we want to prevent future situations where, as a result of continuous service and frequent re-elections, officials from the President down to the municipal mayor tend to develop a proprietary interest in their positions and to accumulate these powers and prerequisites that permit them to stay on indefinitely or to transfer these posts to members of their families in a subsequent election. x x x xxx It is evident that in the abovementioned cases, there exists a rest period or a break in the service of local elective official. In Lonzanida, petitioner therein was a private citizen a few months before the next mayoral elections. Similarly, in Adormeo and Socrates, the private respondents therein lived as private citizens for two years and fifteen months respectively. Indeed, the law contemplates a rest period during which the local elective official steps down from office and ceases to exercise power or authority over the inhabitants of the territorial jurisdiction of a particular local government unit. This Court reiterates that the framers of the Constitution specifically included an exception to the peoples freedom to choose those who will govern them in order to avoid the evil of a single person accumulating excessive power over a particular territorial jurisdiction as a result of a prolonged stay in the same office. To allow petitioner Latasa to vie for the position of city mayor after having served for three consecutive terms as municipal mayor would obviously defeat the very intent of the framers when they wrote this exception. Should he be allowed another three consecutive term as mayor of the City of Digos, petitioner would then be possibly holding office as chief executive over the same territorial jurisdiction and inhabitants for a total of

Rivera III vs. COMELEC

eighteen consecutive years. This is the very scenario sought to be avoided by the Constitution, if not abhorred by it.

This is the very situation in the instant case. Respondent Morales maintains that he served his second term (1998 to 2001) only as a caretaker of the office or as a de facto officer. Section 8, Article X of the Constitution is violated and its purpose defeated when an official serves in the same position for three consecutive terms. Whether as caretaker or de facto officer, he exercises the powers and enjoys the prerequisites of the office which enables him to stay on indefinitely. Respondent Morales should be promptly ousted from the position of mayor of Mabalacat.

G.R. No. 167591 Having found respondent Morales ineligible, his Certificate of Candidacy dated December 30, 2003 should be cancelled. The effect of the cancellation of a Certificate of Candidacy is provided under Sections 6 and 7 of R.A. No. 6646, thus:
SECTION 6. Effect of Disqualification Case. Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of guilt is strong. SECTION 7. Petition to Deny Due Course To or Cancel a Certificate of Candidacy. The procedure hereinabove provided shall apply to petitions to deny due course to or cancel a certificate of candidacy as provided in Section 78 of Batas Pambansa Blg. 881.

in relation to Section 211 of the Omnibus Election Code, which provides:


SEC. 211. Rules for the appreciation of ballots. In the reading and appreciation of ballots, every ballot shall be presumed to be valid unless there is clear and good reason to justify its rejection. The board of election inspectors shall observe the following rules, bearing in mind that the object of the election is to obtain the expression of the voters will: xxx 19. Any vote in favor of a person who has not filed a certificate of candidacy or in favor of a candidate for an office for which he did not present himself shall be considered as a stray vote but it shall not invalidate the whole ballot.

Rivera III vs. COMELEC

xxx

In the light of the foregoing, respondent Morales can not be considered a candidate in the May 2004 elections. Not being a candidate, the votes cast for him SHOULD NOT BE COUNTED and must be considered stray votes. G.R. No. 170577 Since respondent Morales is DISQUALIFIED from continuing to serve as mayor of Mabalacat, the instant petition for quo warranto has become moot. Going back to G.R. No. 167591, the question now is whether it is the vice-mayor or petitioner Dee who shall serve for the remaining portion of the 2004 to 2007 term. In Labo v. Comelec,[8] this Court has ruled that a second place candidate cannot be proclaimed as a substitute winner, thus:
The rule, therefore, is: the ineligibility of a candidate receiving majority votes does not entitle the eligible candidate receiving the next highest number of votes to be declared elected. A minority or defeated candidate cannot be deemed elected to the office. xxx It is therefore incorrect to argue that since a candidate has been disqualified, the votes intended for the disqualified candidate should, in effect, be considered null and void. This would amount to disenfranchising the electorate in whom sovereignty resides. At the risk of being repetitious, the people of Baguio City opted to elect petitioner Labo bona fide, without any intention to misapply their franchise, and in the honest belief that Labo was then qualified to be the person to whom they would entrust the exercise of the powers of the government. Unfortunately, petitioner Labo turned out to be disqualified and cannot assume the office. Whether or not the candidate whom the majority voted for can or cannot be installed, under no circumstances can minority or defeated candidate be deemed elected to the office. Surely, the 12,602 votes cast for petitioner Ortega is not a larger number than the 27,471 votes cast for petitioner Labo (as certified by the Election Registrar of Baguio City; rollo, p. 109; GR No. 105111). xxx As a consequence of petitioners ineligibility, a permanent vacancy in the contested office has occurred. This should now be filled by the vice-mayor in accordance with Section 44 of the Local Government Code, to wit:

Rivera III vs. COMELEC

Sec. 44. Permanent vacancies in the Offices of the Governor, Vice-Governor, Mayor and Vice-Mayor. (a) If a permanent vacancy occurs in the office of the governor or mayor, the vice-governor or the vice-mayor concerned shall become the governor or mayor. x x x

WHEREFORE, the petition in G.R. No. 167591 is GRANTED. Respondent Morales Certificate of Candidacy dated December 30, 2003 is cancelled. In view of the vacancy in the Office of the Mayor in Mabalacat, Pampanga, the vice-mayor elect of the said municipality in the May 10, 2004 Synchronized National and Local Elections is hereby declared mayor and shall serve as such for the remaining duration of the term July 1, 2004 to June 30, 2007. The petition in G.R. No. 170577 is DISMISSED for being moot. This Decision is immediately executory. SO ORDERED.

Montebon vs. COMELEC


Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 182088 January 30, 2009

ROBERTO L. DIZON, Petitioner, vs COMMISSION ON ELECTIONS and MARINO P. MORALES, Respondents. DECISION CARPIO, J.: The Case This is a petition for certiorari and prohibition, with prayer for the issuance of a temporary restraining order and writ of preliminary injunction under Rule 65 of the 1997 Rules of Civil Procedure. The present petition seeks the reversal of the Resolution dated 27 July 2007 of the Commission on Elections (COMELEC) Second Division which dismissed the petition to disqualify and/or to cancel Marino P. Morales (Morales) certificate of candidacy, as well as the Resolution dated 14 February 2008 of the COMELEC En Banc which denied Roberto L. Dizons (Dizon) motion for reconsideration. The Facts The COMELEC Second Division stated the facts as follows: Roberto L. Dizon, hereinafter referred to as petitioner, is a resident and taxpayer of the Municipality of Mabalacat, Pampanga. Marino P. Morales, hereinafter referred to as respondent, is the incumbent Mayor of the Municipality of Mabalacat, Pampanga. Petitioner alleges respondent was proclaimed as the municipal mayor of Mabalacat, Pampanga during the 1995, 1998, 2001 and 2004 elections and has fully served the same. Respondent filed his Certificate of Candidacy on March 28, 2007 again for the same position and same municipality. Petitioner argues that respondent is no longer eligible and qualified to run for the same position for the May 14, 2007 elections under Section 43 of the Local Government Code of 1991. Under the said provision, no local elective official is allowed to serve for more than three (3) consecutive terms for the same position. Respondent, on the other hand, asserts that he is still eligible and qualified to run as Mayor of the Municipality of Mabalacat, Pampanga because he was not elected for the said position in the 1998 elections. He avers that the Commission en banc in SPA Case No. A-04-058, entitled Atty. Venancio Q. Rivera III and Normandick P. De Guzman vs. Mayor Marino P. Morales, affirmed the decision of the Regional Trial Court of Angeles City declaring Anthony D. Dee as the duly elected Mayor of Mabalacat, Pampanga in the 1998 elections. Respondent alleges that his term should be reckoned from 2001 or when he was proclaimed as Mayor of Mabalacat, Pampanga. Respondent further asserts that his election in 2004 is only for his second term. Hence, the three term rule provided under the Local Government Code is not applicable to him. Respondent further argues that the grounds stated in the instant petition are not covered under Section 78 of the Omnibus Election Code. Respondent further contend [sic] that even if it is covered under the aforementioned provision, the instant petition failed to allege any material misrepresentation in the respondents Certificate of Candidacy.1

Montebon vs. COMELEC


The Ruling of the COMELEC Second Division In its Resolution dated 27 July 2007, the COMELEC Second Division took judicial notice of this Courts ruling in the consolidated cases of Atty. Venancio Q. Rivera III v. COMELEC and Marino "Boking" Morales in G.R. No. 167591 and Anthony Dee v. COMELEC and Marino "Boking" Morales in G.R. No. 170577 (Rivera case) promulgated on 9 May 2007. The pertinent portions of the COMELEC Second Divisions ruling read as follows: Respondent was elected as mayor of Mabalacat from July 1, 1995 to June 30, 1998. There was no interruption of his second term from 1998 to 2001. He was able to exercise the powers and enjoy the position of a mayor as "caretaker of the office" or a "de facto officer" until June 30, 2001 notwithstanding the Decision of the RTC in an electoral protest case. He was again elected as mayor from July 1, 2001 to June 30, 2003 [sic]. It is worthy to emphasize that the Supreme Court ruled that respondent has violated the three-term limit under Section 43 of the Local Government Code. Respondent was considered not a candidate in the 2004 Synchronized National and Local Elections. Hence, his failure to qualify for the 2004 elections is a gap and allows him to run again for the same position in the May 14, 2007 National and Local Elections. WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES to DENY the instant Petition to Cancel the Certificate of Candidacy and/or Petition for the Disqualification of Marino P. Morales for lack of merit.2 Dizon filed a motion for reconsideration before the COMELEC En Banc. The Ruling of the COMELEC En Banc The COMELEC En Banc affirmed the resolution of the COMELEC Second Division. The pertinent portions of the COMELEC En Bancs Resolution read as follows: Respondents certificate of candidacy for the May 2004 Synchronized National and Local Elections was cancelled pursuant to the above-mentioned Supreme Court decision which was promulgated on May 9, 2007. As a result, respondent was not only disqualified but was also not considered a candidate in the May 2004 elections. Another factor which is worth mentioning is the fact that respondent has relinquished the disputed position on May 16, 2007. The vice-mayor elect then took his oath and has assumed office as mayor of Mabalacat on May 17, 2007 until the term ended on June 30, 2007. For failure to serve for the full term, such involuntary interruption in his term of office should be considered a gap which renders the three-term limit inapplicable. The three-term limit does not apply whenever there is an involuntary break. The Constitution does not require that the interruption or hiatus to be a full term of three years. What the law requires is for an interruption, break or a rest period from a candidates term of office "for any length of time." The Supreme Court in the case of Latasa v. Comelec ruled: Indeed, the law contemplates a rest period during which the local elective official steps down from office and ceases to exercise power or authority over the inhabitants of the territorial jurisdiction of a particular local government unit. In sum, the three-term limit is not applicable in the instant case for lack of the two conditions: 1) respondent was not the duly-elected mayor of Mabalacat for the July 1, 2004 to June 30, 2007 term primordially because he was not even considered a candidate thereat; and 2) respondent has failed to serve the entire duration of the term of office because he has already relinquished the disputed office on May 16, 2007 which is more than a month prior to the end of his supposed term. xxx

Montebon vs. COMELEC WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES, to DENY the instant Motion for Reconsideration for LACK OF MERIT. The Resolution of the Commission Second Division is hereby AFFIRMED.
SO ORDERED.3 The Issues Dizon submits that the factual findings made in the Rivera case should still be applied in the present case because Morales had, except for one month and 14 days, served the full term of 2004-2007. Morales assumption of the mayoralty position on 1 July 2007 makes the 2007-2010 term Morales fifth term in office. Dizon raises the following grounds before this Court: 1. THE COMELEC GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF ITS JURISDICTION WHEN IT RULED THAT RESPONDENT MORALES DID NOT VIOLATE THE THREE-YEAR TERM LIMIT WHEN HE RAN AND WON AS MAYOR OF MABALACAT, PAMPANGA DURING THE MAY 14, 2007 ELECTION. 2. THE COMELEC GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT RULED THAT DUE TO THIS HONORABLE COURTS RULING IN THE AFORESAID CONSOLIDATED CASES, RESPONDENT MORALES FOURTH TERM IS CONSIDERED A GAP IN THE LATTERS SERVICE WHEN HE FILED HIS CERTIFICATE OF CANDIDACY FOR THE 2007 ELECTIONS. 3. THE COMELEC GRAVELY ABUSED ITS DISCRETION WHEN IT RULED THAT THE FOURTH TERM OF MORALES WAS INTERRUPTED WHEN HE "RELINQUISHED" HIS POSITION FOR ONE MONTH AND 14 DAYS PRIOR TO THE MAY 14, 2007 ELECTION.4 The Ruling of the Court The petition has no merit. The present case covers a situation wherein we have previously ruled that Morales had been elected to the same office and had served three consecutive terms, and wherein we disqualified and removed Morales during his fourth term. Dizon claims that Morales is currently serving his fifth term as mayor. Is the 2007-2010 term really Morales fifth term? The Effect of our Ruling in the Rivera Case In our decision promulgated on 9 May 2007, this Court unseated Morales during his fourth term. We cancelled his Certificate of Candidacy dated 30 December 2003. This cancellation disqualified Morales from being a candidate in the May 2004 elections. The votes cast for Morales were considered stray votes. The dispositive portion in theRivera case reads: WHEREFORE, the petition in G.R. No. 167591 is GRANTED. Respondent Morales Certificate of Candidacy dated December 30, 2003 is cancelled. In view of the vacancy in the Office of the Mayor of Mabalacat, Pampanga, the vicemayor elect of the said municipality in the May 10, 2004 Synchronized National and Local Elections is hereby declared mayor and shall serve as such for the remaining duration of the term July 1, 2004 to June 30, 2007. The petition in G.R. No. 170577 is DISMISSED for being moot. This Decision is immediately executory. SO ORDERED.5 Article X, Section 8 of the 1987 Constitution reads:

Montebon vs. COMELEC 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.
Section 43(b) of the Local Government Code restated Article X, Section 8 of the 1987 Constitution as follows: No local elective official shall serve for more than three (3) consecutive terms in the same position. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which the elective official concerned was elected. For purposes of determining the resulting disqualification brought about by the three-term limit, it is not enough that an individual has served three consecutive terms in an elective local office, he must also have been elected to the same position for the same number of times.6 There should be a concurrence of two conditions for the application of the disqualification: (1) that the official concerned has been elected for three consecutive terms in the same local government post and (2) that he has fully served three consecutive terms.7
lavvphil.net

In the Rivera case, we found that Morales was elected as mayor of Mabalacat for four consecutive terms: 1 July 1995 to 30 June 1998, 1 July 1998 to 30 June 2001, 1 July 2001 to 30 June 2004, and 1 July 2004 to 30 June 2007. We disqualified Morales from his candidacy in the May 2004 elections because of the three-term limit. Although the trial court previously ruled that Morales proclamation for the 1998-2001 term was void, there was no interruption of the continuity of Morales service with respect to the 1998-2001 term because the trial courts ruling was promulgated only on 4 July 2001, or after the expiry of the 1998-2001 term. Our ruling in the Rivera case served as Morales involuntary severance from office with respect to the 2004-2007 term. Involuntary severance from office for any length of time short of the full term provided by law amounts to an interruption of continuity of service.8 Our decision in the Rivera case was promulgated on 9 May 2007 and was effective immediately. The next day, Morales notified the vice mayors office of our decision. The vice mayor assumed the office of the mayor from 17 May 2007 up to 30 June 2007. The assumption by the vice mayor of the office of the mayor, no matter how short it may seem to Dizon, interrupted Morales continuity of service. Thus, Morales did not hold office for the full term of 1 July 2004 to 30 June 2007. 2007-2010: Morales Fifth Term? Dizon claims that the 2007-2010 term is Morales fifth term in office. Dizon asserts that even after receipt of our decision on 10 May 2007, Morales "waited for the election to be held on 14 May 2007 to ensure his victory for a fifth term."9 We concede that Morales occupied the position of mayor of Mabalacat for the following periods: 1 July 1995 to 30 June 1998, 1 July 1998 to 30 June 2001, 1 July 2001 to 30 June 2004, and 1 July 2004 to 16 May 2007. However, because of his disqualification, Morales was not the duly elected mayor for the 2004-2007 term. Neither did Morales hold the position of mayor of Mabalacat for the full term. Morales cannot be deemed to have served the full term of 2004-2007 because he was ordered to vacate his post before the expiration of the term. Morales occupancy of the position of mayor of Mabalacat from 1 July 2004 to 16 May 2007 cannot be counted as a term for purposes of computing the three-term limit. Indeed, the period from 17 May 2007 to 30 June 2007 served as a gap for purposes of the three-term limit rule. Thus, the present 1 July 2007 to 30 June 2010 term is effectively Morales first term for purposes of the threeterm limit rule. Dizon alleges that Morales "was able to serve his fourth term as mayor through lengthy litigations. x x x In other words, he was violating the rule on three-term limit with impunity by the sheer length of litigation and profit from it even more by raising the technicalities arising therefrom."10 To this, we quote our ruling in Lonzanida v. COMELEC: The respondents harp on the delay in resolving the election protest between petitioner and his then opponent Alvez which took roughly about three years and resultantly extended the petitioners incumbency in an office to which he was not lawfully elected. We note that such delay cannot be imputed to the petitioner. There is no specific allegation nor proof that the delay was due to any political maneuvering on his part to prolong his stay in office. Moreover, protestant

Montebon vs. COMELEC Alvez, was not without legal recourse to move for the early resolution of the election protest while it was pending before the regional trial court or to file a motion for the execution of the regional trial courts decision declaring the position of mayor vacant and ordering the vice-mayor to assume office while the appeal was pending with the COMELEC. Such delay which is not here shown to have been intentionally sought by the petitioner to prolong his stay in office cannot serve as basis to bar his right to be elected and to serve his chosen local government post in the succeeding mayoral election.11
WHEREFORE, we DISMISS the petition. We AFFIRM the Resolution of the Commission on Elections En Bancdated 14 February 2008 as well as the Resolution of the Commission on Elections Second Division dated 27 July 2007. SO ORDERED.

Montebon vs. COMELEC Republic of the Philippines SUPREME COURT Manila


EN BANC G.R. No. 180444 April 8, 2008

FEDERICO T. MONTEBON and ELEANOR M. ONDOY, petitioners, vs. COMMISSION ON ELECTION and SESINANDO F. POTENCIOSO, JR., respondents. DECISION YNARES-SANTIAGO, J.: This petition1 for certiorari assails the June 2, 2007 Resolution2 of the First Division of the Commission on Elections (COMELEC) in SPA No. 07-421, denying the petition for disqualification filed by petitioners Federico T. Montebon and Eleanor M. Ondoy against respondent Sesinando F. Potencioso, Jr., as well as the September 28, 2007 Resolution3 of the COMELEC En Banc denying the motion for reconsideration. Petitioners Montebon and Ondy and respondent Potencioso, Jr. were candidates for municipal councilor of the Municipality of Tuburan, Cebu for the May 14, 2007 Synchronized National and Local Elections. On April 30, 2007, petitioners and other candidates4 for municipal councilor filed a petition for disqualification against respondent with the COMELEC alleging that respondent had been elected and served three consecutive terms as municipal councilor in 1998-2001, 2001-2004, and 2004-2007. Thus, he is proscribed from running for the same position in the 2007 elections as it would be his fourth consecutive term. In his answer, respondent admitted that he had been elected for three consecutive terms as municipal councilor. However, he claimed that the service of his second term in 2001-2004 was interrupted on January 12, 2004 when he succeeded as vice mayor of Tuburan due to the retirement of Vice Mayor Petronilo L. Mendoza. Consequently, he is not disqualified from vying for the position of municipal councilor in the 2007 elections. In the hearing of May 10, 2007, the parties were directed to file their respective memoranda. In petitioners memorandum, they maintained that respondents assumption of office as vice-mayor in January 2004 should not be considered an interruption in the service of his second term since it was a voluntary renunciation of his office as municipal councilor. They argued that, according to the law, voluntary renunciation of the office for any length of time shall not be considered an interruption in the continuity of service for the full term for which the official concerned was elected. On the other hand, respondent alleged that a local elective official is not disqualified from running for the fourth consecutive time to the same office if there was an interruption in one of the previous three terms. On June 2, 2007, the COMELEC First Division denied the petition for disqualification ruling that respondents assumption of office as vice-mayor should be considered an interruption in the continuity of his service. His second term having been involuntarily interrupted, respondent should thus not be disqualified to seek reelection as municipal councilor.5 On appeal, the COMELEC En Banc upheld the ruling of the First Division, as follows: Respondents assumption to the office of the vice-mayor of Tuburan in January 2004 during his second term as councilor is not a voluntary renunciation of the latter office. The same therefore operated as an effective disruption in the full service of his second term as councilor. Thus, in running for councilor again in the May 14,

Montebon vs. COMELEC 2007 Elections, respondent is deemed to be running only for a second consecutive term as councilor of Tuburan, the first consecutive term fully served being his 2004-2007 term.
Petitioner Montebons and Ondoys June 9, 2007 manifestation and omnibus motion are hereby declared moot and academic with the instant disposition of their motion for reconsideration. WHEREFORE, premises considered, petitioners motion for reconsideration is hereby DENIED for lack of merit. SO ORDERED.6 Petitioners filed the instant petition for certiorari on the ground that the COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction in ruling that respondents assumption of office as vice-mayor in January 2004 interrupted his 2001-2004 term as municipal councilor. The petition lacks merit. The 1987 Constitution bars and disqualifies local elective officials from serving more than three consecutive terms in the same post. Section 8, Article X thereof states: 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 officials 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. Section 43 of the Local Government Code also provides: Sec. 43. Term of Office. (b) No local elective official shall serve for more than three consecutive terms in the same position. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which the elective official concerned was elected. In Lonzanida v. Commission on Elections,7 the Court held that the two conditions for the application of the disqualification must concur: 1) that the official concerned has been elected for three consecutive terms in the same local government post; and 2) that he has fully served three consecutive terms.8 In Borja, Jr. v. Commission on Elections,9 the Court emphasized that the term limit for elective officials must be taken to refer to the right to be elected as well as the right to serve in the same elective position. Thus, for the disqualification to apply, it is not enough that the official has been elected three consecutive times; he must also have served three consecutive terms in the same position.10 While it is undisputed that respondent was elected municipal councilor for three consecutive terms, the issue lies on whether he is deemed to have fully served his second term in view of his assumption of office as vice-mayor of Tuburan on January 12, 2004. Succession in local government offices is by operation of law.11 Section 4412 of Republic Act No. 7160, otherwise known as the Local Government Code, provides that if a permanent vacancy occurs in the office of the vice mayor, the highest ranking sanggunian member shall become vice mayor. Thus: SEC. 44. Permanent Vacancies in the Offices of the Governor, Vice Governor, Mayor, and Vice Mayor. (a) If a permanent vacancy occurs in the office of the governor or mayor, the vice governor or vice mayor concerned shall become the governor or mayor. If a permanent vacancy occurs in the offices of the governor, vice governor, mayor or vice mayor, the highest ranking sanggunian member or, in case of his permanent inability, the second highest ranking sanggunian member, shall become the governor, vice governor, mayor or vice mayor, as the case may be. Subsequent vacancies in the said office shall be filled automatically by the other sanggunian members according to their ranking as defined herein. x x x

Montebon vs. COMELEC In this case, a permanent vacancy occurred in the office of the vice mayor due to the retirement of Vice Mayor Mendoza. Respondent, being the highest ranking municipal councilor, succeeded him in accordance with law. It is clear therefore that his assumption of office as vice-mayor can in no way be considered a voluntary renunciation of his office as municipal councilor.
In Lonzanida v. Commission on Elections, the Court explained the concept of voluntary renunciation as follows: The second sentence of the constitutional provision under scrutiny states, Voluntary renunciation of office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which he was elected. The clear intent of the framers of the constitution to bar any attempt to circumvent the three-term limit by a voluntary renunciation of office and at the same time respect the peoples choice and grant their elected official full service of a term is evident in this provision. Voluntary renunciation of a term does not cancel the renounced term in the computation of the three term limit; conversely,involuntary severance from office for any length of time short of the full term provided by law amounts to an interruption of continuity of service.13 (Emphasis added) Thus, respondents assumption of office as vice-mayor in January 2004 was an involuntary severance from his office as municipal councilor, resulting in an interruption in the service of his 2001-2004 term. It cannot be deemed to have been by reason of voluntary renunciation because it was by operation of law. We quote with approval the ruling of the COMELEC that The legal successor is not given any option under the law on whether to accept the vacated post or not. Section 44 of the Local Government Code makes no exception. Only if the highest-ranking councilor is permanently unable to succeed to the post does the law speak of alternate succession. Under no circumstances can simple refusal of the official concerned be considered as permanent inability within the contemplation of law. Essentially therefore, the successor cannot refuse to assume the office that he is mandated to occupy by virtue of succession. He can only do so if for some reason he is permanently unable to succeed and occupy the post vacated. xxxx Thus, succession by law to a vacated government office is characteristically not voluntary since it involves the performance of a public duty by a government official, the non-performance of which exposes said official to possible administrative and criminal charges of dereliction of duty and neglect in the performance of public functions. It is therefore more compulsory and obligatory rather than voluntary.14 WHEREFORE, the petition is DISMISSED for lack of merit. The June 2, 2007 Resolution of the COMELEC First Division denying the petition for disqualification and the September 28, 2007 Resolution of the COMELEC en banc denying the motion for reconsideration, are AFFIRMED. SO ORDERED.

Bolos Jr. Vs. COMELEC


Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 184082 March 17, 2009

NICASIO BOLOS, JR., Petitioner, vs. THE COMMISSION ON ELECTIONS and REY ANGELES CINCONIEGUE, Respondents. DECISION PERALTA, J.: This is a petition for certiorari, under Rule 65 of the Rules of Court, alleging that the Commission on Elections (COMELEC) committed grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the Resolutions promulgated on March 4, 2008 and August 7, 2008 holding that petitioner Nicasio Bolos, Jr. is disqualified as a candidate for the position of Punong Barangay of Barangay Biking, Dauis, Bohol in the October 29, 2007 Barangay and Sangguniang Kabataan Elections on the ground that he has served the three-term limit provided in the Constitution and Republic Act (R.A.) No. 7160, otherwise known as the Local Government Code of 1991. The facts are as follows: For three consecutive terms, petitioner was elected to the position of Punong Barangay of Barangay Biking, Dauis, Bohol in the Barangay Elections held in 1994, 1997 and 2002. In May 2004, while sitting as the incumbent Punong Barangay of Barangay Biking, petitioner ran for Municipal Councilor of Dauis, Bohol and won. He assumed office as Municipal Councilor on July 1, 2004, leaving his post asPunong Barangay. He served the full term of the Sangguniang Bayan position, which was until June 30, 2007. Thereafter, petitioner filed his Certificate of Candidacy for Punong Barangay of Barangay Biking, Dauis, Bohol in the October 29, 2007 Barangay and Sangguniang Kabataan Elections. Respondent Rey Angeles Cinconiegue, the incumbent Punong Barangay and candidate for the same office, filed before the COMELEC a petition for the disqualification of petitioner as candidate on the ground that he had already served the three-term limit. Hence, petitioner is no longer allowed to run for the same position in accordance with Section 8, Article X of the Constitution and Section 43 (b) of R.A. No. 7160. Cinconiegue contended that petitioners relinquishment of the position of Punong Barangay in July 2004 was voluntary on his part, as it could be presumed that it was his personal decision to run as municipal councilor in the May 14, 2004 National and Local Elections. He added that petitioner knew that if he won and assumed the position, there would be a voluntary renunciation of his post as Punong Barangay. In his Answer, petitioner admitted that he was elected as Punong Barangay of Barangay Biking, Dauis, Bohol in the last three consecutive elections of 1994, 1997 and 2002. However, he countered that in the May 14, 2004 National and Local Elections, he ran and won as Municipal Councilor of Dauis, Bohol. By reason of his assumption of office as Sangguniang Bayan member, his remaining term of office as Punong Barangay, which would have ended in 2007, was left unserved. He argued that his election and assumption of office as Sangguniang Bayanmember was by operation of law; hence, it must be considered as an involuntary interruption in the continuity of his last term of service.

Bolos Jr. Vs. COMELEC Pursuant to Section 10 of COMELEC Resolution No. 8297 dated September 6, 2007, the petition was heard by the Provincial Election Supervisor of Bohol. Upon completion of the proceedings, the evidence, records of the case, and the Hearing Officers action on the matter were endorsed to and received by the Commission on November 21, 2007.
The issue before the COMELEC was whether or not petitioners election, assumption and discharge of the functions of the Office of Sangguniang Bayan member can be considered as voluntary renunciation of his office asPunong Barangay of Barangay Biking, Dauis, Bohol which will render unbroken the continuity of his service asPunong Barangay for the full term of office, that is, from 2004 to 2007. If it is considered a voluntary renunciation, petitioner will be deemed to have served three consecutive terms and shall be disqualified to run for the same position in the October 29, 2007 elections. But if it is considered as an involuntary renunciation, petitioners service is deemed to have been interrupted; hence, he is not barred from running for another term. In a Resolution1 dated March 4, 2008, the First Division of the COMELEC ruled that petitioners relinquishment of t