LOCAL GOVERNMENTS CREATION, MERGER, ABOLITION & POWERS

PART I


PART I: LOCAL GOVERNMENTS CREATION, MERGER, ABOLITION & POWERS
1. Creation of Local Government Units
2. Presumption of Constitutionality
3. Governmental Powers/Functions
4. Proprietary Powers/Functions


1. CREATION OF LOCAL GOVERNMENT UNITS

Patricio Tan et al. v. COMELEC (YEAR)


FACTS:
Prompted by the enactment of BP 885 (Act Creating Province of Negros del Norte), petitioners who are
residents of the Province of Negros Occidental filed with this Court a case for Prohibition for the purpose of
preventing COMELEC from conducting the plebiscite pursuant to the law.

Petitioners contend that BP 885 is unconstitutional and it is not in accordance with the LGC as well as
Article XI, Section 3 of the Constitution regarding the requirements in land area and estimated annual
income. Petitioners also contend that the plebiscite conducted did not comply with the requirements off law as it
was confined only to the inhabitants of three cities and eight municipalities in Negros del Norte, to the
exclusion of the voters of the Province of Negros Occidental.

COMELEC avers that the law is not unconstitutional. They claim that BP 885 does not infringe the Constitution
because the requisites of the LGC have been complied with. They submit that the case has now become moot and
academic with the proclamation of Negros del Norte as during the plebiscite, 164,734 were in favor of the creation
of the new province while only 30,400 were against it.

ISSUES:
WON the new Province of Negros del Norte complied with the requirements as to land area? NO
WON the province complied with the plebiscite requirement? NO

HELD/RATIO:
The original Parliamentary Bill no. 3644 expressly declared that the new province contained an area of 285,656 ha
more or less. However, when Parliamentary bill was enacted into BP 885, the province now comprised a
territory of 4,019.95 square kilometers. The certification of the provincial treasurer also indicates that the
province comprised of a lesser area. Although in the above certification it is stated that the land area of the
relatively new municipality of Don Salvador Benedicto is not available, it is an uncontradicted fact that the
area comprising Don Salvador municipality, one of the component units of the new province, was derived
from the City of San Carlos and from the Municipality of Calatrava, Negros Occidental, and added thereto
was a portion of about one--fourth the land area of the town of Murcia, Negros Occidental. This area if added to
2,685.2 square kilometers will result in approximately an area of only 2,765.4 square kilometers.

The last sentence of the first paragraph of Section 197 LGC1 is relevant. 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 LGC and in the very last sentence thereof, clearly, reflects that "territory" as therein used, has
reference only to the mass of land area and excludes the waters over which the political unit exercises
control. Said sentence states that the "territory need not be contiguous." Contiguous means (a) in physical
contact; (b) touching along all or most of one side; (c) near, text, or adjacent. "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. Therefore, in the context of the sentence
above, what need not be "contiguous" is the "territory" the physical mass of land area.




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Petitioners have also averred that after the creation of Negros del Norte, the province of Negros Occidental would
be deprived of the long established Cities of Silay, Cadiz, and San Carlos, as well as the municipality of Victorias. No
controversion has been made regarding petitioners' assertion that the areas of the Province of Negros
Occidental will be diminished by about 285,656 hectares and it will lose seven of the fifteen sugar mills
which contribute to the economy of the whole province. In the language of petitioners, "to create Negros del
Norte, the existing territory and political subdivision known as Negros Occidental has to be partitioned and
dismembered. What was involved was no 'birth' but "amputation." We agree with the petitioners that in the
case of Negros what was involved was a division, a separation; and consequently, as Sec. 3 of Article XI of
the Constitution anticipates, a substantial alteration of boundary.

Re: the reliance on the case of Paredes vs. The Honorable Executive Secretary, et al.: As in the prefatory
statements therein stating that said case is "one of those cases where the discretion of the Court is allowed
considerable leeway" and that "there is indeed an element of ambiguity in the use of the expression unit or
units affected." The ruling rendered in said case was based on a claimed prerogative of the Court then to
exercise its discretion on the matter. It did not resolve the question of how the pertinent provision of the
Constitution should be correctly interpreted. The ruling in the aforestated case should not be taken as a
doctrinal or compelling precedent when it is acknowledged therein that "it is plausible to assert, as petitioners
do, that when certain Barangays are separated from a parent municipality to form a new one, all the voters
therein are affected."

On the issue of the interpretation and application of Article XI, Section 3 of the Constitution. It can be plainly seen
that the constitutional provision makes it imperative that there be first obtained "the approval of a
majority of votes in the plebiscite in the unit or units affected" whenever a province is created, divided or merged
and there is substantial alteration of the boundaries. It is thus inescapable to conclude that the boundaries of
the existing province of Negros Occidental would necessarily be substantially altered by the division of its
existing boundaries in order that there can be created the proposed new province of Negros del Norte. Plain
and simple logic will demonstrate than that two political units would be affected. The first would be the parent
province of Negros Occidental because its boundaries would be substantially altered. The other affected entity
would be composed of those in the area subtracted from the mother province to constitute the proposed
province of Negros del Norte. We find no way to reconcile the holding of a plebiscite that should conform to said
constitutional requirement but eliminates the participation of either of these two component political units. No
one should be allowed to pay homage to a supposed fundamental policy intended to guarantee and promote
autonomy of local government units but at the same time transgress, ignore and disregard what the Constitution
commands in Article XI Section 3 thereof We fail to find any legal basis for the unexplained change made when
Parliamentary Bill No. 3644 was enacted into Batas Pambansa Blg. 885 so that it is now provided in said
enabling law that the plebiscite "shall be conducted in the proposed new province which are the areas
affected." We are not disposed to agree that by mere legislative fiat the unit or units affected referred in the
fundamental law can be diminished or restricted by the Batasang Pambansa to cities and municipalities
comprising the new province, thereby ignoring the evident reality that there are other people necessarily
affected. The court reversed the ruling in "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. The sense in which the words are used
furnished the rule of construction. The distinction between "territory" and "land area" which respondents
make is an artificial or strained construction of the disputed provision whereby the words of the statute are
arrested from their plain and obvious meaning and made to bear an entirely different meaning to justify an
absurd or unjust result. The plain meaning in the language in a statute is the safest guide to follow in
construing the statute. A construction based on a forced or artificial meaning of its words and out of
harmony of the statutory scheme is not to be favored.

Concurring Opinion, Teehankee:
The challenged Act is manifestly void and unconstitutional. Consequently, all the implementing acts complained of,



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viz. the plebiscite, the proclamation of a new province of Negros del Norte and the appointment of its officials are
equally void. The limited holding of the plebiscite only in the areas of the proposed new province (as provided
by Section 4 of the Act) to the exclusion of the voters of the remaining areas of the integral province of
Negros Occidental (namely, the three cities of Bacolod, Bago and La Carlota and the Municipalities of La
Castellana, Isabela, Moises Padilla, Pontevedra, Hinigaran, Himamaylan, Kabankalan, Murcia, Valladolid, San
Enrique, Ilog, Cauayan, Hinoba--an and Sipalay and Candoni), grossly contravenes and disregards the mandate
of Article XI, section 3 of the then prevailing 1973 Constitution that no province may be created or divided or
its boundary substantially altered without "the approval of a majority of the votes in a plebiscite in the unit or units
affected. " It is plain that all the cities and municipalities of the province of Negros Occidental, not merely those of
the proposed new province, comprise the units affected. It follows that the voters of the whole and entire
province of Negros Occidental have to participate and give their approval in the plebiscite, because the whole
province is affected by its proposed division and substantial alteration of its boundary. To limit the plebiscite
to only the voters of the areas to be partitioned and seceded from the province is as absurd and illogical as
allowing only the secessionists to vote for the secession that they demanded against the wishes of the majority and
to nullify the basic principle of majority rule. The argument of fait accompli viz. that the railroaded plebiscite of
January 3, 1986 was held and can no longer be enjoined and that the new province of Negros del Norte has
been constituted, begs the issue of invalidity of the challenged Act. This Court has always held that it "does not
look with favor upon parties 'racing to beat an injunction or restraining order' which they have reason to believe
might be forthcoming from the Court by virtue of the filing and pendency of the appropriate petition therefor.
Where the restraining order or preliminary injunction are found to have been properly issued, as in the case
at bar, mandatory writs shall be issued by the Court to restore matters to the status quo ante." Where, as
in this case, there was somehow a failure to properly issue the restraining order stopping the holding of the illegal
plebiscite, the Court will issue the mandatory writ or judgment to restore matters to the status quo ante and
restore the territorial integrity of the province of Negros Occidental by declaring the unconstitutionality of the
challenged Act and nullifying the invalid proclamation of the proposed new province of Negros del Norte and the
equally invalid appointment of its officials.

Torralba vs. Mun. of Sibagat, 147 SCRA 390.

FACTS:
Petitioners challenge the constitutionality of BP Blg. 56, an Act creating the Municipality of Sibagat in Agusan
del Sur which allegedly violates Section 3 Article XI of the 1973 Constitution. Under BP Blg. 56, sixteen barangays
from Bayugan, Agusan del Sur are separated to form the new municipality of Sibagat. Furthermore, the
supposed creation of the new municipality must be ratified by majority of votes cast in a plebescite in theareas
affected within 90 days after the approval of the said Act.

It is petitioners theory that BP Blg. 56 violates Section 3 Article XI of the 1973 Constitution (now Sec 10 Art X of the
1987 Consti) because there was no Local Government Code in existence during the time of the Acts
enactment. They submit that an LGC must first be enacted to determine the criteria for the creation, division,
merger, or substantial alteration of the boundaries of local government units. Since there was no LGC when BP 56
was passed, said BP could not have possibly complied with any criteria when Sibagat was created. Hence,
said Act is null and void.

ISSUE:
WON BP 56 is invalid due to the fact that there was no existing Local Government Code at the time of its
enactment

HELD/RATIO:
NO. The absence of LGC at the time of the Acts enactment did not curtail nor was it intended to cripple legislative
competence to create municipal corporations. Section 3 Article XI of the 1973 Constitution does not
proscribe or prohibit the modification of territorial and political subdivisions before the enactment of the LGC.

The Constitution does not contain a requirement that the LGC is a condition sine qua non for the creation
of a


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municipality, in the same manner that the creation of a municipality does not preclude the enactment of the LGC.

The Constitution only means that once the LGC is enacted, the creation or modification of territorial
boundaries should conform with criteria laid down. In the meantime, legislative power remains plenary except that
creation of the new municipality should be approved by the people concerned. In this case, the creation of Sibagat
conformed to such requisite. A plebiscite was conducted and the people in the units affected endorsed and
approved the creation of the new local government unit. The officials of the new municipality have effectively
taken their oaths of office and performing their functions. A de jure entity has been created.

Bai Sema vs. COMELEC (2008) Prov. Of Shariff Kaubugsuan case

FACTS:
The first legislative district of the province of Maguindanao consists of Cotabato City and eight municipalities.
Maguindanao is part of the ARMM. Cotabato City, however, voted against its inclusion in the
ARMM in the plebiscite held in November 1989.

On 28 August 2006, the ARMM Regional Assembly, exercising its power to create provinces under Section 19,
Article VI of RA 9054, enacted Muslim Mindanao Autonomy Act No. 201 (MMA Act 201) creating the
Province of Shariff Kabunsuan composed of the 8 municipalities in the first district of Maguindanao.

Maguindanao voters ratified Shariff Kabunsuans creation. The Sangguniang Panlungsod of Cotabato City
passed Board Resolution No. 3999, requesting the COMELEC to clarify the status of Cotabato City in view
of the conversion of the First District of Maguindanao into a regular province. In response to the query, COMELEC
issued Resolution No. 07--0407 "maintaining the status quo with Cotabato City as part of Shariff Kabunsuan
in the First Legislative District of Maguindanao.

However, in preparation for the 14 May 2007 electioons, COMELEC issued Resolution No. 7845 stating that
Maguindanaos first legislative district is composed only of Cotabato City because of the enactment of MMA
Act
201.

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

Bai Sandra Sema was a candidate for Representative of Shariff Kabunsuan with Cotabato City. She prayed for
the nullification of COMELEC Resolution 7902. She contended that Shariff Kabunsuan is entitled to one
representative in Congress under Section 5 (3) Article VI of the 1987 Constitution and Section 3 of the Ordinance
appended to the Constitution.

ISSUE:
Whether the ARMM Regional Assembly Can Create the Province of Shariff Kabunsuan: NO

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


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

Legislative Districts are Created or Reapportioned Only by an Act of Congress

Under the present Constitution, as well as in past Constitutions, the power to increase the allowable membership
in the House of Representatives, and to reapportion legislative districts, is vested exclusively in
Congress.

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

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

Nothing in Section 20, Article X of the Constitution authorizes autonomous regions, expressly or impliedly, to
create or reapportion legislative districts for Congress. On the other hand, Section 3, Article IV of RA 9054
amending the ARMM Organic Act, provides, "The Regional Assembly may exercise legislative power x x x
except on the following matters: x x x (k) National elections. x x x."

Since the ARMM Regional Assembly has no legislative power to enact laws relating to national elections, it cannot
create a legislative district whose representative is elected in national elections.

Indeed, the office of a legislative district representative to Congress is a national office, and its occupant, a
Member of the House of Representatives, is a national official. It would be incongruous for a regional
legislative body like the ARMM Regional Assembly to create a national office when its legislative powers
extend only to its regional territory. To allow the ARMM Regional Assembly to create a national office is to
allow its legislative powers to operate outside the ARMM's territorial jurisdiction.

The Supreme Court ruled that Section 19, Article VI of RA 9054, insofar as it grants to the ARMM Regional
Assembly the power to create provinces and cities, is void for being contrary to Section 5 of Article VI and Section
20 of Article X of the Constitution, as well as Section 3 of the Ordinance appended to the Constitution.

Only Congress can create provinces and cities because the creation of provinces and cities necessarily includes the
creation of legislative districts. The ARMM Regional Assembly cannot create a province without a legislative district
because the Constitution mandates that every province shall have a legislative district. Moreover, the ARMM
Regional Assembly cannot enact a law creating a national office like the office of a district representative of
Congress because the legislative powers of the ARMM Regional Assembly operate only within its territorial
jurisdiction as provided in Section 20, Article X of the Constitution.

Based on the foregoing, MMA Act 201 enacted by the ARMM Regional Assembly and creating the Province of
Shariff Kabunsuan was also declared void. On the other hand, COMELEC Resolution No. 7902, preserving the


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geographic and legislative district of the First District of Maguindanao with Cotabato City, was held valid. SC
declared that it merely complies with Section 5 of Article VI and Section 20 of Article X of the Constitution, as well
as Section 1 of the Ordinance appended to the Constitution.


The Prov. Of North Cotabato v. Government of Republic of the Philippines
(2008)

FACTS:
Facts that Lead to the Filing of the Petition
The MILF is a rebel group which was established in March 1984 when, under the leadership of the late
Salamat Hashim, it splintered from the Moro National Liberation Front (MNLF) then headed by Nur Misuari.
On 18 July 1997, the GRP and MILF Peace Panels signed the Agreement on General Cessation of Hostilities.
On 27 August 1998, they signed the General Framework of Agreement of Intent.
In the end of 1999 up to 2000, MILF attacked a number of municipalities in Central Mindanao. In
response, President Estrada declared and carried out an all--out--war against the MILF.
When President Arroyo came in office, military offensive was suspended and the government sought a
resumption of the peace talks.
With the help of the Malaysian government, the MILF was convinced to return to the negotiating table.
The parties met in Kuala Lumpur and on 24 March 2001, MILF and the GRP signed the Agreement on the
General Framework for the Resumption of Peace Talks Between the GRP and the MILF.
Formal peace talks were held in Tripoli, Libya in June 2001. The outcome was the GRP--MILF Agreement on
Peace (Tripoli Agreement on 2001) containing 3 aspects:
o Security Aspect
o Rehabilitation Aspect
o Ancestral Domain Aspect
A second round of peace talks was held in Malaysia in August 2001, and the parties ended up
signing the Implementing Guidelines on the Security Aspect of the Tripoli Agreement of 2001.
This was followed on May by the signing of the parties of the Implementing Guidelines on the
Humanitarian Rehabilitation and Development Aspects of the Tripoli Agreement 2001.
In 2005, several exploratory talks were held between the parties in Malaysia eventually leading to the
crafting
of the draft MOA--AD.
On 05 August 2008 the Government of the Philippines (GRP) and the MILF were scheduled to sign a
Memorandum of Agreement on the Ancestral Domain (MOA--AD) Aspect of the GRP--MILF Tripoli Agreement
on Peace of 2001 in Malaysia.
But did this not push through, because on 23 July 2008, the Province of North Cotabato and the City of
Zamboanga filed a petition for Mandamus, and Prohibition with Prayer for the Issuance of Writ of Preliminary
Injunction and TRO because of this the Court issued a Temporary Restraining Order enjoining the GRP from signing
the MOA--AD.
The 2 petitions were followed by more petitions filed by various individuals, local government units and
interested sectors.

Commonly impleaded as respondents are the GRP Peace Panel on Ancestral Domain and the Presidential
Adviser on the Peace Process (PAPP) Hermogenes Esperon Jr.
GRP moved to dismiss the petitions since they stated that they shall thoroughly review the MOA--AD.

Overview of the MOA--AD
The MOA--AD identifies the Parties to it as the GRP and the MILF.
Under the Terms of Reference (TOR), the MOA--AD includes 4 earlier agreements between the GRP and MILF but
also 2 agreements between the GRP and the MNLF:
O The 1976 Tripoli Agreement and
O The Final Peace Agreement on the Implementation of the 1976 Tripoli Agreement.



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The MOA--AD identifies in its TOR several statutes:
O The organic act for the ARMM and
O The IPRA
O The ILO Convention No. 169. Concerning Indigenous and Tribal Peoples in Independent Countries in
relation to the UN Declaration on the Rights of the Indigenous Peoples and
O The UN Charter.
The MOA--AD also includes as final TOR the generic category of compact rights entrenchment emanating from the
regime of territory under compact and territory under peace agreement that partakes the nature of a
treaty device.
This simply refers to all the other agreements between the MILF and the Philippine government.

The main body of the MOA--AD is divided into 4 strands, Concepts and Principles, Territory, Resources and
Governance.

Concepts and Principles
Defines Bangsamoro People as the natives or original inhabitants of Mindanao and its adjacent islands including
Palawan and the Sulu archipelago at the time of the conquest or colonization, and their descendants whether
mixed or of full blood, including their spouses. This means that the term includes not only Moros but also all
indigenous peoples of Mindanao and its adjacent islands.
Mentions the Bangsamoro Homeland the ownership of which is vested exclusively in the Bangsamoro people by
virtue of their prior rights of occupation. Both parties agree that the ancestral domain does not form part
of the public domain.
It also mentions the Bangsamoro Juridical Entity (BJE) to which the GRP grants the authority and jurisdiction over
the Ancestral Domain and Ancestral Lands of the Bangsamoro.
Territory
The Bangsamoro Homeland is described as the land mass as well as the maritime, terrestrial, fluvial and
alluvial
domains, including the aerial domain and the atmospheric space above it, embracing the Mindanao--Sulu--Palawan
geographic region.
The core of the BJE is defined as the present geographic area of the ARMM:
o Lanao del Sur
o Maguindanao
o Sulu
o Tawi--Tawi
o Basilan
o Marawi City
o Certain municipalities of Lanao del Norte that voted for the inclusion in the ARMM in the 2001
plebiscite.
Outside of this core, the BJE is to cover other provinces, cities, municipalities and barangays which are
groups
into: Category A and Category B (Special Intervention Areas).
The parties stipulate that the BJE shall have jurisdiction over the following:
o All natural resources Within its internal waters
o Joint jurisdiction, authority and management over all natural resources with the Central Government
Within its territorial waters
o Sharing of minerals between the BJE and the Central Government Within its territorial waters

Resources
The BJE can perform the following acts:
1. To enter into any economic cooperation and trade relations with foreign countries and has the
option
to establish trade missions in those countries.
2. To enter into environmental cooperation agreements.
3. Entitled to participate in Philippine official missions and delegations for the negotiation of border
agreements or protocols for environmental protection and equitable sharing of incomes and revenues.


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The external defense of the BJE is to remain the duty and obligation of the Central Government.
The Central Government should ensure the BJEs participation in international meetings and events.
The BJE has the right of exploring for, producing and obtaining all potential sources of energy, petroleum,
fossil,
fuel, mineral, oil and natural gas.
The total sharing between the Central Government and the BJE pertaining to natural resources is to be 75:25 in
favor of the BJE.
The BJE may modify or cancel the forest concessions, timber licenses, contracts or agreements, mining
concessions, MPSA, IFMA, and other land tenure instruments granted by the Philippine Government including
those issued by the present ARMM.
Governance
The MOA--AD binds the parties to invite a multinational third--party to observe and monitor the
implementation
of the Comprehensive Compact.
The MOA--AD describes the relationship of the Central Government and the BJE as associative.
The MOA--AD provides that its provisions requiring amendments to the existing legal framework shall take effect
upon signing of the Comprehensive Compact and upon effecting the aforesaid amendments.

ISSUES:
Procedural Issues
1) Whether the constitutionality and the legality of the MOA--AD is ripe for adjudication.
2) Whether the petitioners have locus standi to file the petitions.
3) Whether the petitions have become moot and academic.
Substantive Issues
4) Whether respondents violate constitutional and statutory provisions on public consultation and the
right
to information when they negotiated and later initialed the MOA--AD.
5) Whether the contents of the MOA--AD violate the Constitution and laws.

HELD:
1) YES.
2) YES.
3) NO.
4) YES.
5) YES.

RATIO:
1) The power of judicial review is limited to actual cases or controversies. An actual case or controversy
involves a conflict of legal rights, an assertion of opposite legal claims, susceptible of judicial resolution as
distinguished from a hypothetical or abstract difference or dispute. There must be a contrariety of legal rights that
can be interpreted and enforced on the basis of existing law and jurisprudence. The court can decide the
constitutionality of an act or treaty only when a proper case between opposing parties is submitted for
judicial determination.

Related to the requirement of an actual case or controversy is the requirement of ripeness. For a case to be
considered ripe for adjudication, it is a prerequisite that something had then been accomplished or performed by
either branch of the before a court may come into the picture and the petitioner must allege the existence of
an immediate or threatened injury to itself as a result of the challenged action.

Concrete acts under the MOA--AD are not necessary to render the present controversy ripe. That the law or act
in
question is not yet effective does not negate ripeness.

Certiorari, Mandamus and Prohibition are appropriate remedies to raise constitutional issues and to review and/or
prohibit/nullify, when proper, acts of legislative and executive officials.


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As the petitions allege acts or omissions on the part of the respondent that exceed their authority, by
violating their duties under E.O. No. 3 and the provisions of the Constitution and statutes, the petitions
make prima facie case for certiorari, prohibition and mandamus, and an actual case or controversy ripe for
adjudication exists. When an act of a branch of government is seriously alleged to have infringed the
Constitution, it becomes not only the right but in fact duty of the judiciary to settle the dispute.

2) For a party to have locus standi, one must allege such 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.

When the issue concerns a public right, it is sufficient that the petitioner is a citizen and has an interest
in the
execution of the laws.

In any case, the Court has the discretion to relax the procedural technicality on locus standi given the
liberal attitude it has exercised highlighted in the case of David v Macapagal--Arroyo, where technicalities of
procedure were brushed aside, the constitutional issues raised being of paramount public interest or of
transcendental importance deserving the attention of the Court in view of their seriousness, novelty and weight as
precedents.

3) The non--signing of the MOA--AD and the eventual dissolution of the GRP Peace Panel did not moot
the present petitions. It bears emphasis that the signing of the MOA--AD did not push through due to the
Courts issuance of a TRO. The petitions have not, therefore been rendered moot and academic simply by the
public disclosure of the MOA--AD. The manifestation that it will not be signed as well as the disbanding of the GRP
Panel notwithstanding.

The MOA--AD is not a mere list of consensus points given its nomenclature and the need to have it
signed or
initialed by all the concerning parties.


Consequently, the present petitions are not confined to the terms and provisions of the MOA--AD but to other
ongoing and future negotiations and agreements necessary for its realization.

The assertion that the MOA--AD is subject to further legal enactments including possible Constitutional
amendments more than ever provides impetus for the Court to formulate controlling principles to guide the
bench, the bar, the public and in this case the government and its negotiating entity.

The MOA--AD is a significant part of a series of agreements necessary to carry out the Tripoli Agreement 2001. The
present MOA--AD can be renegotiated or another one will be drawn up to carry out the Ancestral Domain Aspect of
the Tripoli Agreement of 2001. In rendering a decision on the merits in the present petitions to formulate the
controlling principles to guide the bench, the bar, the public and most especially the government in
negotiating with the MILF regarding the Ancestral Domain is necessary.

4) The MOA--AD is a matter of public concern, involving as it does the sovereignty and territorial integrity of
the State, which directly affects the lives of the public at large. Matters of public concern covered by the
right to information include steps and negotiations leading to the consummation of the contract.

Intended as a splendid symmetry to the right to information under the Bill of Rights (Sec. 7, Art. III) is the policy of
public disclosure under Sec. 28, Art. II of the Constitution. The right to information guarantees the right of the
people to demand information while Sec. 28 recognizes the duty of officialdom to give information even if nobody
demands it.


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An essential element of these freedoms is to keep open a continuing dialogue or process of communication
between the government and the people. Envisioned to be corollary to the twin rights to information and
disclosure is the design for feedback mechanism.


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In fact, E.O. No. 3 (Defining the Policy and Administrative Structure for the Governments comprehensive
Peace Efforts) contemplates not just the conduct of a plebiscite to effectuate continuing consultations,
contrary to respondents position that plebiscite is more than sufficient consultation. It also establishes
petitioners right to be consulted on the peace agenda, as a corollary to the constitutional right to information and
disclosure.

Presidential Adviser on the Peace Process Hermogenes Esperon, committed grave abuse of discretion when he
failed to carry out the pertinent consultation. The furtive process by which the MOA--AD was designed and crafted
runs contrary to and in excess of the legal authority and amounts to a whimsical, capricious, oppressive, arbitrary
and despotic exercise thereof.

Petitioners assertion that the Local Government Code (Sec. 2 [c]) declares it a State policy to require all
national agencies and offices to conduct periodic consultations with appropriate local government units, non-
-governmental and people's organizations, and other concerned sectors of the community before any project
or program is implemented in their respective jurisdictions is well--taken.

The MOA--AD is one peculiar program that unequivocally and unilaterally vests ownership of a vast territory to the
Bangsamoro people, which could pervasively and drastically result to the diaspora or displacement of
a great number of inhabitants from their total environment.

The MOA--AD, an instrument recognizing ancestral domain, failed to justify its non--compliance with the clear-
-cut mechanisms ordained in said Act, which entails, among other things, the observance of the free and prior
informed consent of the ICCs/IPs.

Notably, the IPRA does not grant the Executive Department or any government agency the power to delineate and
recognize an ancestral domain claim by mere agreement or compromise.

In proceeding to make a sweeping declaration on ancestral domain, without complying with the IPRA, which is
cited as one of the TOR of the MOA--AD, respondents clearly transcended the boundaries of their authority.

5) Association is used in the MOA--AD to describe the envisioned relationship between the BJE and the
Central Government.

The nature of the "associative" relationship may have been intended to be defined more precisely in the still to be
forged Comprehensive Compact. Nonetheless, given that there is a concept of "association" in international
law, and the MOA--AD -- by its inclusion of international law instruments in its TOR-- placed itself in an
international legal context, that concept of association may be brought to bear in understanding the use of the
term "associative" in the MOA--AD.

An association is formed when two states of unequal power voluntarily establish durable links. In the basic model,
one state, the associate, delegates certain responsibilities to the other, the principal, while maintaining its
international status as a state. Free associations represent a middle ground between integration and
independence.

In international practice, the "associated state" arrangement has usually been used as a transitional device of
former colonies on their way to full independence.

Back to the MOA--AD, it contains many provisions which are consistent with the international legal concept of
association, specifically the following: the BJE's capacity to enter into economic and trade relations with
foreign countries, the commitment of the Central Government to ensure the BJE's participation in meetings and
events in the ASEAN and the specialized UN agencies, and the continuing responsibility of the Central
Government over external defense.


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These provisions of the MOA indicate, among other things, that the Parties aimed to vest in the BJE the
status of
an associated state or, at any rate, a status closely approximating it.

The Constitution, however, does not contemplate any state in this jurisdiction other than the Philippine State,
much less does it provide for a transitory status that aims to prepare any part of Philippine territory for
independence.

Article II, Sec. 2 of the Constitution states that, "The State recognizes and promotes the rights of indigenous
cultural communities within the framework of national unity and development."

An associative arrangement does not uphold national unity. While there may be a semblance of unity
because of the associative ties between the BJE and the national government, the act of placing a portion of
Philippine territory in a status which, in international practice, has generally been a preparation for independence,
is certainly not conducive to national unity.

Besides being irreconcilable with the Constitution, the MOA--AD is also inconsistent with prevailing statutory
law,
among which are R.A. No. 9054 or the Organic Act of the ARMM, and the IPRA.

Bagabuyo v. COMELEC (2008)

FACTS:
In 2006, Rep. Jaraula of Cagayan de Oro sponsored a bill increasing the citys legislative district from one to
two. It eventually became a law causing COMELEC to promulgate a resolution that for the election of May 2007,
Cagayan de Oro's voters would be classified as belonging to either the first or the second district, depending on
their place of residence. Bagabuyo filed a petition and argued that COMELEC cannot implement the act without
providing for the rules, regulations and guidelines for the conduct of a plebiscite which is indispensable for
the division or conversion of a local government unit.

ISSUE:
WON a plebiscite is required in the case at bar

HELD/RATIO:
No. The Court upheld COMELECs arguments that the law merely increased the representation of CDO in
the House of Representatives and Sangguniang Panglungsod pursuant to Section 5, Article VI of the 1987
Constitution and that the criteria established under Section 10, Article X of the 1987 Constitution only apply
when there is a creation, division, merger, abolition or substantial alteration of boundaries of a province, city,
municipality, or barangay. In this case, no such creation, division, merger, abolition or alteration of
boundaries of a local government unit took place. Further, the law did not bring about any change in CDOs
territory, population and income classification; hence, no plebiscite is required.

League of Cities v. COMELEC (2011)

FACTS:
During the 11th Congress, 33 bills were filed seeking to convert 33 municipalities into cities. Out of the
33 bills, only 24 were not enacted into law. In the 12th Congress, RA 9009 was passed which amended
the Local Government Code. It increased the income requirement from 20 million to 100 million. Due to this
new law, Congress sought to enact a joint resolution exempting the 24 municipalities from the new income
requirement. This was however not approved. Sixteen out of the original 24 municipalities filed individual
cityhood bills. These bills were enacted into law between March to July 2007. The statutes contained a provision
which exempted the

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16 municipalities from the new income requirement. The League of Cities assailed the constitutionality of
these

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cityhood laws on two grounds: 1) The cityhood laws violate Article X, Sec. 10 of the 1987 Constitution which states
that cities can be created only in accordance with the local government code and 2) the cityhood laws violate the
equal protection clause as they put the municipalities at an advantage as against all other municipalities that
are similarly situated.

ISSUE:
Whether or not the cityhood laws are constitutional.

RULING:
The original case declared the laws unconstitutional. The MR reversed this decision and ruled in favor of their
constitutionality. Upon a second MR, the Court again reversed itself. Finally, on the fourth ruling, the Supreme
Court ruled that the laws were constitutional.

FIRST DECISION (Nov. 18, 2008 decision)
The cityhood laws violate Article X, Section 10 of the 1987 Constitution. Under this provision, the creation
of cities must be based on the Local Government Code and no other law. The legislature cannot prescribe different
criteria in another law, in violation of the predetermined requirements in the Local Government Code.
Allowing that would then render nugatory the entire purpose of having a Local Government Code. Since
the Local Government Code determines the requirements, if there are indeed exemptions, they too must be clearly
stated in the same Code. In the case of the 16 municipalities, no such exemption is written in their favor.

The said laws also violate Article X, Section 6 of the 1987 Constitution. The provision states that local government
units are entitled to a just share in the national income. There will be no just share if the criteria are not uniform
for local government units. In the case of the cityhood laws, the cities involved, which earn only about 20 million,
will get the same share as those who actually earn the 100 million requirement in the law.

Along this line, the laws also violate the equal protection clause. There was no substantial distinction which would
justify the favorable treatment accorded to the cities in the cityhood laws as opposed to every other city
earning
20 million pesos. The fact that they sought cityhood before the amendment of the LGC is not a substantial
distinction

SECOND DECISION ( Dec. 21, 2009)
The cityhood laws are constitutional
The power to create cities is legislative in character. Article X, Sec. 10 of the 1987 Constitution only meant
that Congress alone can impose the criteria for the creation of cities, it did not limit the power of the
legislature. The said constitutional provision should be construed to mean that Congress can create cities so
long as it is done through a law. In other words, Congress can create cities through a codified set of laws as in the
LGC or through a single subject enactment as in the case of the cityhood laws. Moreover, the legislative
intent in making the cityhood laws was to exempt the cities involved from RA 9009. The said exemption
does not violate equal protection because it is based on substantial distinctions. The municipalities involved in
this case have already met the requirements for cityhood under the old LGC even before it was amended.
Allowing the amendment to apply to them would be the same as changing the rules in the middle of the game.

THIRD DECISION (August 24, 2010)
The cityhood laws are unconstitutional.
Article 10, Sec. 10 of the 1987 Constitution clearly states that the Local Government Code must be the basis for the
creation of cities. RA 9009 is an amendment of the LGC, therefore, the new income requirement prescribed
by it should be complied with. If Congress truly intended that the municipalities involved in this case be exempt
from RA
9009, it should have been stated in the law itself. The cityhood laws violate equal protection. First, there
was no substantial distinction between the municipalities in this case and all other municipalities similarly
situated. Second, the said law is limited to specific conditions only, contrary to the requirement that a valid
distinction must not only apply to specific conditions but to future conditions as well. Third, the law does
not apply to all


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municipalities similarly situated. The laws give advantage to certain municipalities on the basis of an arbitrary date.

FOURTH DECISION (February 15, 2011)
The Cityhood laws are constitutional
The legislative intent was to exempt the municipalities involved from the coverage of RA 9009. This intent
was expressed in the exemption clause found in the cityhood laws. The enactment of these laws was in valid
exercise of the legislative power. In fact these cityhood laws can be deemed to have amended the LGC in that
these laws provided for exemption.

FINAL RULING:
The cityhood laws are constitutional. The municipalities involved are validly constituted as cities.

Navarro v. Executive Secretary (2010, 2011) Dinagatan Case

FACTS:
Republic Act No. 9355 created a province of Dinagat Islands, formerly part of Surigao Del Norte. It was questioned
for constitutionality for not being in compliance with the population or the land area requirements of the
Local Government Code under Sec. 461.

ISSUE:
Is the creation of Dinagat Islands as a separate province constitutional?


10 February 2010 and 12 May 2010 Decisions UNCONSTITUTIONAL
Sec. 461 requires compliance with an income requirement of P20 million, which was met by the province.
However, it also requires compliance with either the population OR the land area requirement.

The province did not comply with the population requirement. Based on the official NSO census
in 2000, the province only had 106,951 inhabitants, which is short of the 250,000 required by law. The province,
however, held a special census that was monitored by a local NSO branch, but was NOT certified by the
NSO, stating that their population was 371,000. In an NSO national census conducted after the passage of the
Act, it was verified that the province only had 120,813 inhabitants, still short of the 250,000 requirement.

The province did NOT comply with the land area requirement. Sec. 461(a)(i) requires that the land area of a
province be contiguous and a minimum of 2,000 sq. km. However, Dinagat Islands did NOT meet the
statutory requirement of 2,000 sq. km. Their argument is that since the Implementing Rules and Regulations
of the Local Government Code under Art. 9.2 provides an exception that the land area requirement does not apply
if the area is not contiguous. The exception for non--contiguity is provided for in Sec. 461(b). This exception
under the Local Government Code, does not include an exception to the land area requirement. The IRR of a law
should always be consistent with the law, and hence, if the IRR goes beyond what the law said, it is unconstitutional.


12 April 2011 Decision CONSTITUTIONAL
Initially in the dissent of Justice Nachura in the earlier decisions, he mentioned that when Sec. 461 (b)
created an exception on contiguity, it also carried along an exception to the land area requirement because
based on the phraseology of the provision, the land area requirement modifies contiguity.

The 2nd Motion for Reconsideration was allowed on the basis of intervention of movants who were not part of the
original case. They were elected officials of Surigao Del Norte who were adversely affected by the outcome of the
unconstitutionality of Dinagat Islands.

Hence, the majority now looked at the central policy considerations in the creation of provinces. They
compared the LGC provisions on the creation of municipalities and cities and how they allow an exception
to the land area requirement in the cases of non--contiguity. Therefore, it must have been the intent of the
legislators to extend

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such exception to provinces.

The idea is that land area requirement for island provinces is unfair because it will render them far
from the government center. If it will be construed as it was in the original decision, it will seem as if the
Congress was partial to contiguous provinces which is against the equal protection clause.


2. PRESUMPTION OF CONSTITUTIONALITY

Alvarez v. Guingona (1996)

FACTS:
RA 7720, entitled "An Act Converting the Municipality of Santiago, Isabela into an Independednt Component
City
to be known as the City of Santiago," was signed into law on 5 May 1994

Prior to the passage of the said law, two bills were separately filed in the Lower House and Senate leading
to the
passage of the law:
House Bill 8817 was approved upon third reading on 17 December 1993, and was transmitted to the
Senate on 18 January 1994.
Senate Bill 1243, a counterpart bill to HB 8817, was filed in the Senate on 19 May 1993. The
bill, though filed, was not acted upon until 23 February 1994, more than a month after HB 8817
was transmitted to the Senate.

Sec 450, LGC sets a minimum average annual income of 20 Million in order for a municipality to be converted
into
a component city.
Municipality of Santiago's average annual income w/o IRA: Php 13.1M
Municipality of Santiago's average annual income w/ IRA: Php 20.9M

ISSUES:
1. WON RA 7720 is unconstitutional for violating Sec 24, Art VI of the 1987 Constitution -- requiring a bill of
local
application to originate exclusively from the House of Representatives

NO. HB 8817 was filed earlier than SB 1243, and is thus considered to be the bill that initiated the legislative
process. The Constitution does not prohibit the filing of a duplicate bill in the Senate even before the Lower House
version is transmitted, for as long as the Senate does not act thereupon until it receives the House Bill.

2. WON the IRA is to be included in the computation of the average annual income of a muncipiality for purposes
of its conversion into an independent component city

Yes. Sec 450 (c) of the LGC provides that "the average annual income shall include the income
accruing to the general fund, exclusive of special funds, transfers, and non--recurring income." The IRA s are
items of income because they form part of the general funds of the municipality, are recurring, and are so defined
in the LGC as to clearly distinguish them from "special funds or transfers".

Important Principle: Presumption of Constitutionality

All laws enjoy a presumption of constitutionality, including laws of local application. They are considered valid and

effective until the courts declare them to be unconstitutional.


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"For RA 7720 to be nullified, it must be shown that there is a clear and unequivocal breach of the Constitution, not
merely a doubtful and equivocal one; in other words, the grounds for nullity must be clear and beyond reasonable
doubt. Those who petition this court to declare a law to be unconstitutional must clearly and fully establish
the basis that will justify such a declaration; otherwise the petition must fail."

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3. GOVERNMENTAL POWERS/ FUNCTIONS

Municipality of San Fernando v. Firme (1991)

FACTS:
On 16--Dec 1965 at 7am, a three--vehicle collision occurred involving a dump truck of the Municipality of San
Fernando La Union, a gravel and sand truck, and a passenger jeepney. At the time of the accident, the dump
truck of the municipality driven by its regular employee, A. Bislig, was on its way to Naguilian River to get a load of
sand and gravel for the repair of the municipalitys streets. Laureano Baina Sr, a passenger of the jeepney,
died as a result of the injuries he sustained in the collision. Banias relatives instituted a complaint for damages
against the driver and owner of the passenger jeepney and the dump truck. In their answer, the municipality
raised four (4) grounds for dismissal: lack of cause of action, the non--suability of the State w/o its consent,
prescription and negligence of the jeepney driver. Judge Firme set a hearing on the sole ground of lack of
jurisdiction but deferred resolution on the other grounds until trial. The municipality filed a motion for
reconsideration against the order of the judge but denied. Soon after, the case was deemed submitted due to
both parties failure to file their respective memoranda. The case was dismissed against the Jeepney owner
and its driver but the court held the Municipality and its driver liable for actual damages, moral damages and
Atty.s fees.

ISSUES:
(1) WON the municipality can be sued.
(2) If in the affirmative, WON it can be held liable for torts committed by its regular employee who was then
engaged in the discharge of governmental powers.

HELD:
(1) Yes. Municipality can sue and be sued.
Generally, the State may not be sued without its consent (Art. XVI Sec. 3). When the state does waive its sovereign
immunity, whether express or implied, it is only giving the plaintiff the chance to prove that the defendant is liable.
Express consent may be embodied in a general law or a special law. Consent is implied when the government
enters into business contracts, thereby descending to the level of the other contracting party, and also when
the State files a complaint, thus opening itself to a counterclaim. Municipal corporations are suable because
their charters grant them the competence to sue and be sued (express consent).

(2) No. The municipality cannot be held liable for the torts committed by its regular employee, who was then
engaged in the discharge of governmental functions.
Municipal corporations exist in a dual capacity: Governmental and Proprietary. In its governmental function,
they exercise the right springing from sovereignty and enjoy the sovereign immunity from suit. In its
proprietary function, it exercises a private, proprietary or corporate right, arising from its existence as legal persons
and not as public agencies. The test of liability of the municipality depends on whether or not the
municipality, was performing governmental or proprietary functions.

It has already been remarked that municipal corporations are suable because their charters grant them the
competence to sue and be sued. Nevertheless, they are generally not liable for torts committed by them in
the discharge of governmental functions and can only be held answerable only if it can be shown that they were
acting in proprietary capacity. In permitting such entities to be sued, the State merely gives the claimant the right to
show that the defendant was not acting in governmental capacity when the injury was committed or that the
case comes under the exceptions recognized by law. Failing this, the claimant cannot recover.

In the absence of any evidence to the contrary, the regularity of the performance of official duty is presumed.
Hence, We rule that the driver of the dump truck was performing duties or tasks pertaining to his office.

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Decision of the respondent court modified. Petitioner municipality absolved of any liability in favor of private
respondents.
4. PROPRIETARY POWERS/ FUNCTIONS

City of Manila v. Intermediate Appellate Court (1989)

FACTS:
Respondent Irene Sto. Domingo's husband Vivencio Sto. Domingo died and was buried on 6 June 1971 in Lot. 159,
Block 194 of the North Cemetery.

The lot was leased from 1971 to 2021 per Official Receipt. Full payment of said rental was P50.00. Apart from the
official receipt, no other document was executed to embody the lease terms. Believing in good faith that
Admin. Order No. 5 prescribed uniform rules in the use and disposition of burial lots, the lease of Vivencio was
limited to 5 years.

On the 5th year, the North Cemetery authorized the exhumation and removal of the remains in the lot. The bones
were stocked in the warehouse of the cemetery.

On All Souls' Day, respondent was shocked when the resting place did not anymore bear the stone marker.
Also,
inside the warehouse, it was just impossible to locate the remains of her late husband.

TC: Granted respondent the right to use the lot for the unexpired term, and for the North Cemetery to give a
substitute lot to be chosen by the respondent.

CA: Reversed the TC, and instead ordered North Cemetery to pay respondent damages.

Petitioner North Cemetery's contentions:
North Cemetery is exclusively devoted for public use or purpose (Sec. 316, Compilation of
Ordinances of City of Manila)
Since it is a political subdivision in the performance of its governmental function, it is immune from
tort
liability which may be caused by its public officers/subordinate employees.
Sec. 4, Art. I of the Revised Charter of Manila exempts the city from liability
The Charter, being a special law, cannot be defeated by the Human Relations part of the Civil Code

Respondent's contentions:
The City entered into a Contract of Lease which involves an exercise of proprietary functions

ISSUES/HELD:
1. WON petitioner was in the exercise of proprietary functions? YES.
Under Philippine laws, the City of Manila is a political body corporate and endowed with faculties of
municipal
corporations. It may sue and be sued, and contract and be contracted with.
Its powers are twofold: governmental/political, and corporate/proprietary/private.

Governmental powers are those exercised in administering the powers of the state and promoting public welfare,
and they include the legislative, judicial, public and political. Proprietary poers on the other hand are exercised for
the special benefit and advantage of the community, and include those which are ministerial, private, and
corporate.

McQuillin: A municipal corporation proper has ... a public character as regards the state at large insofar as
it is an agent in government, and private insofar as it is to promote local necessities and conveniences for
its own community (Torio v. Fontanilla)

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As in Torio v. Fontanilla, in cases of proprietary functions, the settled rule is that a municipal corporation
can be held liable to third persons ex contractu. Also, "municipal corporations under the conditions herein
stated... are liable accordingly, to civil actions for damages when the requisite elements of liability coexist..."

Here, in the absence of a special law, the North Cemetery is a patrimonial property of the City by which a
resolution by the Municipal Board was created to regulate its use. With such acts of dominion, there is no
doubt that the Cemetery is within the class of property private in character.

Moreover, the lot was leased in favor of respondents. Hence, the obligation arising from contracts have the
force of law between the contracting parties. Any breach of the contractual provision entitles the other
party to damages even if no penalty for such breach is prescribed in the contract (Boysaw v. Interphil Promotions
Inc.)

As regards the liability, under the doctrine of respondeat superior, petitioner is liable for the tortious act
committed by its agents who failed to verify and check the duraction of the contract of lease.
















































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