GUTIERREZ vs.

THE HOUSE
COMMITTEE ON JUSTICE
G.R. No. 193459 February 15, 2011

OF

REPRESENTATIVES

FACTS:
On 22 July 2010, Baraquel, et al. filed an impeachment
complaint (First Complaint) against Ombudsman Ma.
Merceditas N. Gutierrez (petitioner) based on betrayal of
public trust and culpable violation of the Constitution.
On 3 August 2010, a Second Complaint was filed by Reyes, et
al. against the same respondent also based on betrayal of
public trust and culpable violation of the Constitution.
On 11 August 2010, the two complaints were referred by the
House Plenary to the Committee on Justice at the same time.
On 1 September 2010, the Committee on Justice found the
First and Second Complaints sufficient in form. On 7
September 2010, the Committee on Justice, found the First
and Second Complaints were sufficient in form.
On 13 September 2010, petitioner filed a petition for certiorari
and prohibition before the Supreme Court seeking to enjoin
the Committee on Justice from proceeding with the
impeachment proceedings. The petition prayed for a
temporary restraining order. Petitioner: She invokes the
Courts expanded certiorari jurisdiction to "determine whether
or not there has been a grave abuse of discretion amounting
to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government. Public Respondent: The
petition is premature and not yet ripe for adjudication since
petitioner has at her disposal a plain, speedy and adequate
remedy in the course of the proceedings before public
respondent. Public respondent argues that when petitioner
filed the present petition on September 13, 2010, it had not
gone beyond the determination of the sufficiency of form and
substance of the two complaints. Hence, certiorari is
unavailing.

The following day, during the en banc Morning session of 14

September 2010, the majority of the Court voted to issue a
status quo ante order suspending the impeachment
proceedings against petitioner. (Note: In urgent cases, it is a
matter of practice for the Court that all the Justices should

have been given time, at least an hour or two, tread the

petition before voting on the issuance of the status quo ante
order. Unfortunately, this was not done.)
Section 3(5), Article XI of the 1987 Constitution provides that
"No impeachment proceedings shall be initiated against the
same official more than once within a period of one year
ISSUE #1:
Does the Supreme Court have the power to determine whether
public respondent committed a violation of the Constitution in the
exercise of its discretion relating to impeachment proceeding?
HELD:
YES, under the doctrine of expanded judicial review. The Constitution
did not intend to leave the matter of impeachment to the sole
discretion of Congress. Instead, it provided for certain well-defined
limits, or in the language of

Baker v. Carr

,"judicially discoverable standards" for determining the validity of the

exercise of such discretion,
Through the power of judicial review. There exists no constitutional
basis for the contention that the exercise of judicial review over
impeachment proceedings would upset the system of checks and
balances. Verily, the Constitution is to be interpreted as a whole and
one section is not to be allowed to defeat another." Both are integral
components of the calibrated system of independence and
interdependence that insures that no branch of government act
beyond the powers assigned to it by the Constitution. Indubitably, the
Court is not asserting its ascendancy over the Legislature in this
instance, but simply upholding the supremacy of the Constitution as
the repository of the sovereign will.
ISSUE #2:
Is the petition premature and not yet ripe for adjudication?
HELD:
NO. In the present petition, there is no doubt that question on the
validity of the simultaneous referral of the two complaints and on the
need to publish as a mode of promulgating the Rules of Procedure in
Impeachment Proceedings of the House (Impeachment Rules)

present constitutional vagaries which call for immediate interpretation.

The unusual act of simultaneously referring to public respondent two
impeachment complaints presents a novel situation to invoke judicial
power. Petitioner cannot thus be considered to have acted
prematurely when she took the cue from the constitutional limitation
that only one impeachment proceeding should be initiated against an
impeachable officer within a period of one year.
ISSUE #3:
When is an impeachment complaint deemed initiated?
HELD:
There are two components of the act of initiating the complaint:
The filing of the impeachment complaint and the referral by the House
Plenary to the Committee on Justice. Once an impeachment
complaint has been initiated (meaning, filed and initiated), another
impeachment complaint may not be filed against the same official
within a one year period.
ISSUE #4:
Do the Impeachment Rules provide for comprehensible standards in
determining the sufficiency of form and substance?
HELD:
YES. Contrary to petitioner contention, the Impeachment Rules are
clear in echoing the constitutional requirements and providing that
there must be a "verified complaint or resolution," and that the
substance requirement is met if there is "a recital of facts constituting
the offense charged and determinative of the jurisdiction of the
committee. In fact, it is only in the Impeachment Rules where a
determination of sufficiency of form and substance of an impeachment
complaint is made necessary. This requirement is not explicitly found
in the Constitution which merely requires a "hearing." (Section 3[2],
Article XI). In the discharge of its constitutional duty, the House
deemed that a finding of sufficiency of form and substance in an
impeachment complaint is vital "to effectively carry out" the
impeachment process, hence, such additional requirement in the
Impeachment Rules.
ISSUE #5:

May the Supreme Court look into the narration of facts constitutive of
the offenses vis--vis petitioners submissions disclaiming the
allegations in the complaints?
HELD:
NO. This issue would "require the Court to make a determination of
what constitutes an impeachable offense. Such a determination is a
purely political question which the Constitution has left to the sound
discretion of the legislature(Francisco vs. House of Representatives.)
ISSUE #6:
Was petitioner denied of due process, because of the delay in the
publication of the Impeachment Rules?
HELD:
NO. The Supreme Court discussed the difference between publication
and promulgation. To recall, days after the 15th Congress opened on
July 26,2010 or on August 3, 2010, public respondent provisionally
adopted the Impeachment Rules of the 14th Congress and thereafter
published on September 2, 2010 its Impeachment Rules, admittedly
substantially identical with that of the 14th Congress, in two
newspapers of general circulation. Citing Taada v. Tuvera, petitioner
contends that she was deprived of due process since the
Impeachment Rules was published only on September 2, 2010 a day
after public respondent ruled on the sufficiency of form of the
complaints. She likewise tacks her contention on Section 3(8), Article
XI of the Constitution which directs that "Congress shall promulgate
its rules on impeachment to effectively carry out the purpose of this
section. "Public respondent counters that "promulgation" in this case
refers to "the publication of rules in any medium of information, not
necessarily in the Official Gazette or newspaper of general circulation.
While "promulgation" would seem synonymous to publication," there
is a statutory difference in their usage. The Constitution notably uses
the word "promulgate" 12 times. A number of those instances involve
the promulgation of various rules, reports and issuances emanating
from Congress, the Supreme Court, the Office of the Ombudsman as
well as other constitutional offices. To appreciate the statutory
difference in the usage of the terms "promulgate" and "publish," the
case of the Judiciary is in point. In promulgating rules concerning the
protection and enforcement of constitutional rights, pleading, practice
and procedure in all courts, the Supreme Court has invariably
required the publication of these rules for their effectivity. As far as

promulgation of judgments is concerned, however, PROMULGATION

means "the delivery of the decision to the clerk of court for filing and
publication
.
Promulgation must thus be used in the context in which it is generally
understoodthat is, to make known. Since the Constitutional
Commission did not restrict "promulgation to "publication," the former
should be understood to have been used in its general sense. It is
within the discretion of Congress to determine on how to promulgate
its Impeachment Rules, in much the same way that the Judiciary is
permitted to determine that to promulgate a decision means to deliver
the decision to the clerk of court for filing and publication. It is not for
the Supreme Court to tell a co-equal branch of government how to
promulgate when the Constitution itself has not prescribed a specific
method of promulgation. The Court is in no position to dictate a mode
of promulgation beyond the dictates of the Constitution. An inquiry in
aid of legislation under Section 21, Article VI of the Constitution is the
sole instance in the Constitution where there is a categorical directive
to duly publish a set of rules of procedure. (Neri vs. Senate)Even
assuming arguendo that publication is required, lack of it does not
nullify the proceedings taken prior to the effectivity of the
Impeachment Rules which faithfully comply with the relevant selfexecuting provisions of the Constitution. Otherwise, in cases where
impeachment complaints are filed at the start of each Congress, the
mandated periods under Section 3, Article XI of the Constitution would
already run or even lapse while awaiting the expiration of the 15-day
period of publication prior to theeffectivity of the Impeachment Rules.
In effect, the House would already violate the Constitution for its
inaction on the impeachment complaints pending the completion of
the publication requirement. (Just like what happened in this case,
where the complaint was filed even before the 15th
Congress open its first session) Given that the Constitution itself
states that any promulgation of the rules on impeachment is aimed at
"effectively carry[ing] out the purpose of impeachment proceedings,
the Court finds no grave abuse of discretion when the House deemed
it proper to provisionally adopt the Rules on Impeachment of the 14th
Congress, to meet the exigency in such situation of early filing and in
keeping with the "effective" implementation of the "purpose" of the
impeachment provisions. In other words, the provisional adoption of
the previous Congress Impeachment Rules is within the power of the
House to promulgate its rules on impeachment to effectively carry out
the avowed purpose. Moreover, the rules on impeachment, as

contemplated by the framers of the Constitution, merely aid or

supplement the procedural aspects of impeachment. Being procedural
in nature, they may be given retroactive application to pending
actions. The retroactive application of procedural laws does violate
any right of a person who may feel that he is adversely affected, nor is
it constitutionally objectionable. The reason for this is that, as a
general rule, no vested right may attach to, nor arise from, procedural
laws." In the present case, petitioner fails to allege any impairment of
vested rights. It bears stressing that, unlike the process of inquiry in
aid of legislation where the rights of witnesses are involved,
impeachment is primarily for the protection of the people as a body
politic, and not for the punishment of the offender.
ISSUE #7:
When do we reckon the start of the one-year ban?
Petitioner contends that it is reckoned from the filing of the first
impeachment complaint against her on July 22, 2010 or four days
before the opening on July 26, 2010 of the 15th Congress. She posits
that within one year from July 22, 2010, no second impeachment
complaint may be accepted and referred to public respondent.
HELD:
Francisco doctrine states that the term "initiate means to file the
complaint and referral of the complaint to the Committee on Justice.
Once an impeachment complaint has been initiated, another
impeachment complaint may not be filed against the same official
within a one year period. Therefore, the one-year period ban is
reckoned not from the filing of the first complaint, but on the date it is
referred to the House Committee on Justice. Petitioner submits that
referral could not be the reckoning point of initiation because
"something prior to that had already been done. This is wrong.
Following petitioners line of reasoning, the verification of the
complaint or the endorsement by a member of the House steps
done prior to the filing would already initiate the impeachment
proceedings.
ISSUE #7:
Does an impeachment complaint need to allege only one
impeachable offense?
Petitioner argues that public respondent gravely abused its discretion
when it disregarded its own Impeachment Rules, which provides that

"the Rules of Criminal Procedure under the Rules of Court shall, as

far as practicable, apply to impeachment proceedings before the
House." Petitioner invokes the application of Section 13, Rule 110 of
the Rule son Criminal Procedure on one offense per complaint rule.
To petitioner, the two impeachment complaints are insufficient in form
and substance since each charges her with both culpable violation of
the Constitution and betrayal of public trust.
HELD:
The Constitution allows the indictment for multiple impeachment
offenses, with each charge representing an article of impeachment,
assembled in one set known as the Articles of Impeachment." It,
therefore, follows that an impeachment complaint need not allege only
one impeachable offense.
EMILIO M. R. OSMENA and PABLO P. GARCIA, petitioners, vs.
THE COMMISSION ON ELECTIONS, respondent.
DECISION
MENDOZA, J.:
This is a petition for prohibition, seeking a reexamination of the validity
of 11(b) of R.A. No. 6646, the Electoral Reforms Law of 1987, which
prohibits mass media from selling or giving free of charge print space
or air time for campaign or other political purposes, except to the
Commission on Elections.[1] Petitioners are candidates for public office
in the forthcoming elections. Petitioner Emilio M. R. Osmea is
candidate for President of the Philippines, while petitioner Pablo P.
Garcia is governor of Cebu Province, seeking reelection. They
contend that events after the ruling in National Press Club v.
Commission on Elections[2] have called into question the validity of the
very premises of that [decision].[3]
There Is No Case or Controversy to Decide,
Only an Academic Discussion to Hold

NPC v. COMELEC upheld the validity of 11(b) of R.A. No. 6646

against claims that it abridged freedom of speech and of the press.
[4]
In urging a reexamination of that ruling, petitioners claim that
experience in the last five years since the decision in that case has
shown the undesirable effects of the law because the ban on political
advertising has not only failed to level the playing field, [but] actually
worked to the grave disadvantage of the poor candidate[s][5] by
depriving them of a medium which they can afford to pay for while
their more affluent rivals can always resort to other means of reaching
voters like airplanes, boats, rallies, parades, and handbills.

No empirical data have been presented by petitioners to back up their

claim, however. Argumentation is made at the theoretical and not the
practical level. Unable to show the experience and subsequent events
which they claim invalidate the major premise of our prior decision,
petitioners now say there is no need for empirical data to determine
whether the political ad ban offends the Constitution or not. [6] Instead
they make arguments from which it is clear that their disagreement is
with the opinion of the Court on the constitutionality of 11(b) of R.A.
No. 6646 and that what they seek is a reargument on the same issue
already decided in that case. What is more, some of the arguments
were already considered and rejected inthe NPC case.[7]
Indeed, petitioners do not complain of any harm suffered as a result of
the operation of the law. They do not complain that they have in any
way been disadvantaged as a result of the ban on media
advertising. Their contention that, contrary to the holding
in NPC, 11(b) works to the disadvantage of candidates who do not
have enough resources to wage a campaign outside of mass media
can hardly apply to them. Their financial ability to sustain a long
drawn-out campaign, using means other than the mass media to
communicate with voters, cannot be doubted. If at all, it is candidates
like intervenor Roger Panotes, who is running for mayor of Daet,
Camarines Norte, who can complain against 11(b) of R.A. No.
6646. But Panotes is for the law which, he says, has to some extent,
reduced the advantages of moneyed politicians and parties over their
rivals who are similarly situated as ROGER PANOTES. He claims that
the elimination of this substantial advantage is one reason why
ROGER PANOTES and others similarly situated have dared to seek
an elective position this coming elections.[8]
What petitioners seek is not the adjudication of a case but simply the
holding of an academic exercise. And since a majority of the present
Court is unpersuaded that its decision in NPCis founded in error, it will
suffice for present purposes simply to reaffirm the ruling in that
case. Stare decisis et non quieta movere. This is what makes the
present case different from the overruling decisions [9] invoked by
petitioners.
Nevertheless, we have undertaken to revisit the decision in NPC v.
COMELEC in order to clarify our own understanding of its reach and
set forth a theory of freedom of speech.
No Ad Ban, Only a Substitution of
COMELEC Space and COMELEC
Time for the Advertising Page and
Commercials in Mass Media

The term political ad ban, when used to describe 11(b) of R.A. No.
6646, is misleading, for even as 11(b) prohibits the sale or donation of
print space and air time to political candidates, it mandates the
COMELEC to procure and itself allocate to the candidates space and
time in the media. There is no suppression of political ads but only a
regulation of the time and manner of advertising.
Thus, 11(b) states:
Prohibited Forms of Election Propaganda. In addition to the forms of
election propaganda prohibited in Section 85 of Batas Pambansa Blg.
881, it shall be unlawful:
....
(b) for any newspapers, radio broadcasting or television station, or
other mass media, or any person making use of the mass media to
sell or to give free of charge print space or air time for campaign or
other political purposes except to the Commission as provided under
Section 90 and 92 of Batas Pambansa Blg. 881. Any mass media
columnist, commentator, announcer or personality who is a candidate
for any elective public office shall take a leave of absence from his
work as such during the campaign period.
On the other hand, the Omnibus Election Code provisions referred to
in 11(b) read:
SEC. 90. Comelec space. - The Commission shall procure space in at
least one newspaper of general circulation in every province or
city: Provided, however, That in the absence of said newspaper,
publication shall be done in any other magazine or periodical in said
province or city, which shall be known as Comelec Space wherein
candidates can announce their candidacy. Said space shall be
allocated, free of charge, equally and impartially by the Commission
among all candidates within the area in which the newspaper is
circulated.(Sec. 45, 1978 EC).
SEC. 92. Comelec time. - The Commission shall procure radio and
television time to be known as Comelec Time which shall be allocated
equally and impartially among the candidates within the area of
coverage of all radio and television stations. For this purpose, the
franchise of all radio broadcasting and television stations are hereby
amended so as to provide radio or television time, free of charge,
during the period of the campaign. (Sec. 46, 1978 EC)
The laws concern is not with the message or content of the ad but
with ensuring media equality between candidates with deep pockets,
as Justice Feliciano called them in his opinion of the Court in NPC,
and those with less resources.[10] The law is part of a package of
electoral reforms adopted in 1987. Actually, similar effort was made in

1970 to equalize the opportunity of candidates to advertise

themselves and their programs of government by requiring the
COMELEC to have a COMELEC space in newspapers, magazines,
and periodicals and prohibiting candidates to advertise outside such
space, unless the names of all the other candidates in the district in
which the candidate is running are mentioned with equal
prominence. The validity of the law was challenged in Badoy, Jr. v.
COMELEC.[11] The voting was equally divided (5-5), however, with the
result that the validity of the law was deemed upheld.
There is a difference in kind and in severity between restrictions such
as those imposed by the election law provisions in question in this
case and those found to be unconstitutional in the cases cited by both
petitioners and the Solicitor General, who has taken the side of
petitioners. In Adiong v. COMELEC[12] the Court struck down a
regulation of the COMELEC which prohibited the use of campaign
decals and stickers on mobile units, allowing their location only in the
COMELEC common poster area or billboard, at the campaign
headquarters of the candidate or his political party, or at his
residence. The Court found the restriction so broad that it
encompasses even the citizens private property, which in this case is
a privately-owned car.[13] Nor was there a substantial governmental
interest justifying the restriction.
[T]he constitutional objective to give a rich candidate and a poor
candidate equal opportunity to inform the electorate as regards their
candidacies, mandated by Article II, Section 26 and Article XIII,
Section 1 in relation to Article IX(c) Section 4 of the Constitution, is not
impaired by posting decals and stickers on cars and other private
vehicles. Compared to the paramount interest of the State in
guaranteeing freedom of expression, any financial considerations
behind the regulation are of marginal significance.[14]
Mutuc v. COMELEC[15] is of a piece with Adiong. An order of the
COMELEC prohibiting the playing of taped campaign jingles through
sound systems mounted on mobile units was held to be an invalid
prior restraint without any apparent governmental interest to promote,
as the restriction did not simply regulate time, place or manner but
imposed an absolute ban on the use of the jingles. The prohibition
was actually content-based and was for that reason bad as a prior
restraint on speech, as inhibiting as prohibiting the candidate himself
to use the loudspeaker. So is a ban against newspaper columnists
expressing opinion on an issue in a plebiscite a content restriction
which, unless justified by compelling reason, is unconstitutional.[16]

Here, on the other hand, there is no total ban on political ads, much
less restriction on the content of the speech. Given the fact that print
space and air time can be controlled or dominated by rich candidates
to the disadvantage of poor candidates, there is a substantial or
legitimate governmental interest justifying exercise of the regulatory
power of the COMELEC under Art. IX-C, 4 of the Constitution, which
provides:
The commission may, during the election period, supervise or regulate
the enjoyment or utilization of all franchises or permits for the
operation of transportation and other public utilities, media of
communication or information, all grants, special privileges, or
concessions granted by the Government or any subdivision, agency,
or instrumentality thereof, including any government-owned or
controlled corporation or its subsidiary. Such supervision or regulation
shall aim to ensure equal opportunity, time, and space, and the right
to reply, including reasonable, equal rates therefor, for public
information campaigns and forums among candidates in connection
with the objective of holding free, orderly, honest, peaceful, and
credible elections.
The provisions in question involve no suppression of political
ads. They only prohibit the sale or donation of print space and air time
to candidates but require the COMELEC instead to procure space and
time in the mass media for allocation, free of charge, to the
candidates. In effect, during the election period, the COMELEC takes
over the advertising page of newspapers or the commercial time of
radio and TV stations and allocates these to the candidates.
Nor can the validity of the COMELEC take-over for such temporary
period be doubted.[17] In Pruneyard Shopping Center v. Robbins,[18] it
was held that a court order compelling a private shopping center to
permit use of a corner of its courtyard for the purpose of distributing
pamphlets or soliciting signatures for a petition opposing a UN
resolution was valid. The order neither unreasonably impaired the
value or use of private property nor violated the owners right not to be
compelled to express support for any viewpoint since it can always
disavow any connection with the message.
On the other hand, the validity of regulations of time, place and
manner, under well-defined standards, is well-nigh beyond question.
[19]
What is involved here is simply regulation of this nature. Instead of
leaving candidates to advertise freely in the mass media, the law
provides for allocation, by the COMELEC, of print space and air time
to give all candidates equal time and space for the purpose of
ensuring free, orderly, honest, peaceful, and credible elections.

In Gonzales v. COMELEC,[20] the Court sustained the validity of a

provision of R.A. No. 4880 which in part reads:
SEC. 50-B. Limitation upon the period of Election Campaign or
Partisan Political Activity. - It is unlawful for any person whether or not
a voter or candidate, or for any group, or association of persons,
whether or not a political party or political committee, to engage in an
election campaign or partisan political activity except during the period
of one hundred twenty days immediately preceding an election
involving a public office voted for at large and ninety days immediately
preceding an election for any other elective public office.
The term Candidate refers to any person aspiring for or seeking an
elective public office, regardless of whether or not said person has
already filed his certificate of candidacy or has been nominated by
any political party as its candidate.
The term Election Campaign or Partisan Political Activity refers to acts
designed to have a candidate elected or not or promote the candidacy
of a person or persons to a public office which shall include:
(a) Forming Organizations, Associations, Clubs, Committees or other
groups of persons for the purpose of soliciting votes and/or
undertaking any campaign or propaganda for or against a party or
candidate;
(b) Holding political conventions, caucuses, conferences, meetings,
rallies, parades, or other similar assemblies, for the purpose of
soliciting votes and/or undertaking any campaign or propaganda for or
against a candidate or party; . . .
In Valmonte v. COMELEC,[21] on the other hand, the Court upheld the
validity of a COMELEC resolution prohibiting members of citizen
groups or associations from entering any polling place except to
vote. Indeed, 261(k) of the Omnibus Election Code makes it unlawful
for anyone to solicit votes in the polling place and within a radius of 30
meters thereof.
These decisions come down to this: the State can prohibit
campaigning outside a certain period as well as campaigning within a
certain place. For unlimited expenditure for political advertising in the
mass media skews the political process and subverts democratic selfgovernment. What is bad is if the law prohibits campaigning by certain
candidates because of the views expressed in the ad. Content
regulation cannot be done in the absence of any compelling reason.
Law Narrowly Drawn to Fit
Regulatory Purpose

The main purpose of 11(b) is regulatory. Any restriction on speech is

only incidental, and it is no more than is necessary to achieve its

purpose of promoting equality of opportunity in the use of mass media

for political advertising. The restriction on speech, as pointed out
in NPC, is limited both as to time and as to scope.
Petitioners and the dissenters make little of this on the ground that the
regulation, which they call a ban, would be useless any other time
than the election period. Petitioners state: [I]n testing the
reasonableness of a ban on mountain-skiing, one cannot conclude
that it is limited because it is enforced only during the winter season.
[22]
What makes the regulation reasonable is precisely that it applies
only to the election period. Its enforcement outside the period would
make it unreasonable. More importantly, it should be noted that a ban
on mountain skiing would be passive in nature. It is like the statutory
cap on campaign expenditures, but is so unlike the real nature of
11(b), as already explained.
Petitioners likewise deny that 11(b) is limited in scope, as they make
another quaint argument:
A candidate may court media to report and comment on his person
and his programs, and media in the exercise of their discretion just
might. It does not, however, follow that a candidates freedom of
expression is thereby enhanced, or less abridged. If Pedro is not
allowed to speak, but Juan may speak of what Pedro wishes to say,
the curtailment of Pedros freedom of expression cannot be said to be
any less limited, just because Juan has the freedom to speak.[23]
The premise of this argument is that 11(b) imposes a ban on media
political advertising. What petitioners seem to miss is that the
prohibition against paid or sponsored political advertising is only half
of the regulatory framework, the other half being the mandate of the
COMELEC to procure print space and air time so that these can be
allocated free of charge to the candidates.
Reform of the Marketplace of Ideas,
Not Permissible?

Petitioners argue that the reasoning of NPC is flawed, because it rests

on a misconception that Art. IX-C, 4 mandates the absolute equality of
all candidates regardless of financial status, when what this provision
speaks of is equality of opportunity. In support of this claim, petitioners
quote the following from the opinion of the Court written by Justice
Feliciano:
The objective which animates Section 11(b) is the equalizing, as far
as practicable, the situations of rich and poor candidates by
preventing the former from enjoying the undue advantage offered by
huge campaign war chests.[24]

The Court meant equalizing media access, as the following sentences

which were omitted clearly show:
Section 11(b) prohibits the sale or donation of print space and air time
for campaign or other political purposes except to the Commission on
Elections (Comelec). Upon the other hand, Sections 90 and 92 of the
Omnibus Election Code require the Comelec to procure Comelec
space in newspapers of general circulation in every province or city
and Comelec time on radio and television stations. Further, the
Comelec is statutorily commanded to allocate Comelec space and
Comelec time on a free of charge, equal and impartial basis among all
candidates within the area served by the newspaper or radio and
television station involved.[25]
On the other hand, the dissent of Justice Romero in the present case,
in batting for an uninhibited market place of ideas, quotes the
following from Buckley v. Valeo:
[T]he concept that the government may restrict the speech of some
elements in our society in order to enhance the relative voice of the
others is wholly foreign to the First Amendment which was designed
to secure the widest possible dissemination of information from
diverse and antagonistic sources and to assure unfettered
interchange of ideas for the bringing about of political and social
changes desired by the people.[26]
But do we really believe in that? That statement was made to justify
striking down a limit on campaign expenditure on the theory that
money is speech. Do those who endorse the view that government
may not restrict the speech of some in order to enhance the relative
voice of others also think that the campaign expenditure limitation
found in our election laws[27] is unconstitutional? How about the
principle of one person, one vote,[28] is this not based on the political
equality of voters? Voting after all is speech. We speak of it as the
voice of the people - even of God. The notion that the government
may restrict the speech of some in order to enhance the relative voice
of others may be foreign to the American Constitution. It is not to the
Philippine Constitution, being in fact an animating principle of that
document.
Indeed, Art. IX-C, 4 is not the only provision in the Constitution
mandating political equality. Art. XIII, 1 requires Congress to give the
highest priority to the enactment of measures designed to reduce
political inequalities, while Art. II, 26 declares as a fundamental
principle of our government equal access to opportunities for public
service. Access to public office will be denied to poor candidates if
they cannot even have access to mass media in order to reach the

electorate. What fortress principle trumps or overrides these

provisions for political equality?
Unless the idealism and hopes which fired the imagination of those
who framed the Constitution now appear dim to us, how can the
electoral reforms adopted by them to implement the Constitution, of
which 11(b) of R.A. No. 6646, in relation to 90 and 92 are part, be
considered infringements on freedom of speech? That the framers
contemplated regulation of political propaganda similar to 11(b) is
clear from the following portion of the sponsorship speech of
Commissioner Vicente B. Foz:
MR. FOZ. . . . Regarding the regulation by the Commission of the
enjoyment or utilization of franchises or permits for the operation of
transportation and other public utilities, media of communication or
information, all grants, special privileges or concessions granted by
the Government, there is a provision that during the election
period, the Commission may regulate, among other things, the rates,
reasonable free space, and time allotments for public information
campaigns and forums among candidates for the purpose of ensuring
free, orderly, honest and peaceful elections. This has to do with the
media of communication or information.[29]
On the Claim that the Reforms
Have Been Ineffectual

Petitioners contend that 11(b) is not a reasonable means for achieving

the purpose for which it was enacted. They claim that instead of
levelling the playing field as far as the use of mass media for political
campaign is concerned, 11(b) has abolished it. They further claim that
11(b) does not prevent rich candidates from using their superior
resources to the disadvantage of poor candidates.
All this is of course mere allegation. As stated in the beginning, what
petitioners claim to be the nations experience with the law is merely
argumentation against its validity. The claim will not bear analysis,
however. Assuming that rich candidates can spend for parades,
rallies, motorcades, airplanes and the like in order to campaign while
poor candidates can only afford political ads, the gap between the two
will not necessarily be reduced by allowing unlimited mass media
advertising because rich candidates can spend for other propaganda
in addition to mass media advertising. Moreover, it is not true that
11(b) has abolished the playing field. What it has done, as already
stated, is merely to regulate its use through COMELEC-sponsored
advertising in place of advertisements paid for by candidates or
donated by their supporters.

It is finally argued that COMELEC Space and COMELEC Time are

ineffectual. It is claimed that people hardly read or watch or listen to
them. Again, this is a factual assertion without any empirical basis to
support it. What is more, it is an assertion concerning the adequacy or
necessity of the law which should be addressed to Congress. Wellsettled is the rule that the choice of remedies for an admitted social
malady requiring government action belongs to Congress. The
remedy prescribed by it, unless clearly shown to be repugnant to
fundamental law, must be respected.[30] As shown in this case, 11(b) of
R.A. 6646 is a permissible restriction on the freedom of speech, of
expression and of the press.
Dissenting, Justice Panganiban argues that advertising is the most
effective means of reaching voters. He adverts to a manifestation of
the COMELEC lawyer that the Commission is not procuring [Comelec
Space] by virtue of the effects of the decision of this Honorable Court
in the case of Philippine Press Institute (PPI) vs. Comelec, 244 SCRA
272.[31]
To be sure, this Court did not hold in PPI v. COMELEC that it should
not procure newspaper space for allocation to candidates. What it
ruled is that the COMELEC cannot procure print space without paying
just compensation. Whether by its manifestation the COMELEC
meant it is not going to buy print space or only that it will not require
newspapers to donate free of charge print space is not clear from the
manifestation. It is to be presumed that the COMELEC, in accordance
with its mandate under 11(b) of R.A. No. 6646 and 90 of the Omnibus
Election Code, will procure print space for allocation to candidates,
paying just compensation to newspapers providing print space.
In any event, the validity of a law cannot be made to depend on the
faithful compliance of those charged with its enforcement but by
appropriate constitutional provisions. There is a remedy for such lapse
if it should happen. In addition, there is the COMELEC Time during
which candidates may advertise themselves. Resolution No. 2983-A
of the COMELEC provides:
SEC. 2. Grant of Comelec Time. Every radio broadcasting and
television station operating under franchise shall grant the
Commission, upon payment of just compensation, at least thirty (30)
minutes of prime time daily, to be known as Comelec Time, effective
February 10, 1998 for candidates for President, Vice-President and
Senators, and effective March 27, 1998, for candidates for local
elective offices, until May 9, 1998. (Emphasis added)
Failure of Legislative Remedy Bespeaks
of More than Congressional Inaction

The fact is that efforts have been made to secure the amendment or
even repeal of 11(b) of R.A. No. 6646. No less than five bills [32] were
filed in the Senate in the last session of Congress for this purpose, but
they all failed of passage. Petitioners claim it was because Congress
adjourned without acting on them. But that is just the point. Congress
obviously did not see it fit to act on the bills before it adjourned.
We thus have a situation in which an act of Congress was found by
this Court to be valid so that those opposed to the statute resorted to
the legislative department. The latter reconsidered the question but
after doing so apparently found no reason for amending the statute
and therefore did not pass any of the bills filed to amend or repeal the
statute. Must this Court now grant what Congress denied to
them? The legislative silence here certainly bespeaks of more than
inaction.
Test for Content-Neutral Restrictions[33]

In Adiong v. COMELEC[34] this Court quoted the following from the

decision of the U.S. Supreme Court in a case sustaining a Los
Angeles City ordinance which prohibited the posting of campaign
signs on public property:
A government regulation is sufficiently justified if it is within the
constitutional power of the Government, if it furthers an important or
substantial governmental interest; if the governmental interest is
unrelated to the suppression of free expression; and if the incident
restriction on alleged First Amendment freedoms is no greater than is
essential to the furtherance of that interest. (Id., at 377, 20 L Ed 2d
672, 88 S Ct 1673. (City Council v. Taxpayers For Vincent, 466 US
789, 80 L Ed 2d 772, 104 S Ct 2118[1984])[35]
This test was actually formulated in United States v. OBrien.[36] It is an
appropriate test for restrictions on speech which, like 11(b), are
content-neutral. Unlike content-based restrictions,they are not
imposed because of the content of the speech. For this reason,
content-neutral restrictions are tests demanding standards. For
example, a rule such as that involved inSanidad v. COMELEC,
[37]
prohibiting columnists, commentators, and announcers from
campaigning either for or against an issue in a plebiscite must have a
compelling reason to support it, or it will not pass muster under strict
scrutiny. These restrictions, it will be seen, are censorial and therefore
they bear a heavy presumption of constitutional invalidity. In addition,
they will be tested for possible overbreadth and vagueness.
It is apparent that these doctrines have no application to contentneutral regulations which, like 11(b), are not concerned with the
content of the speech. These regulations need only a substantial

governmental interest to support them.[38] A deferential standard of

review will suffice to test their validity.
Justice Panganibans dissent invokes the clear-and-present-danger
test and argues that media ads do not partake of the real substantive
evil that the state has a right to prevent and that justifies the
curtailment of the peoples cardinal right to choose their means of
expression and of access to information. The clear-and-presentdanger test is not, however, a sovereign remedy for all free speech
problems. As has been pointed out by a thoughtful student of
constitutional law, it was originally formulated for the criminal law and
only later appropriated for free speech cases. For the criminal law is
necessarily concerned with the line at which innocent preparation
ends and a guilty conspiracy or attempt begins.[39] Clearly, it is
inappropriate as a test for determining the constitutional validity of
laws which, like 11(b) of R.A. No. 6646, are not concerned with the
content of political ads but only with their incidents. To apply the clearand-present-danger test to such regulatory measures would be like
using a sledgehammer to drive a nail when a regular hammer is all
that is needed.
The reason for this difference in the level of justification for the
restriction of speech is that content-based restrictions distort public
debate, have improper motivation, and are usually imposed because
of fear of how people will react to a particular speech. No such
reasons underlie content-neutral regulations, like regulations of time,
place and manner of holding public assemblies under B.P. Blg. 880,
the Public Assembly Act of 1985. Applying the OBrien test in this case,
we find that 11(b) of R.A. No. 6646 is a valid exercise of the power of
the State to regulate media of communication or information for the
purpose of ensuring equal opportunity, time and space for political
campaigns; that the regulation is unrelated to the suppression of
speech; that any restriction on freedom of expression is only
incidental and no more than is necessary to achieve the purpose of
promoting equality.
The Court is just as profoundly aware as anyone else that discussion
of public issues and debate on the qualifications of candidates in an
election are essential to the proper functioning of the government
established by our Constitution. But it is precisely with this awareness
that we think democratic efforts at reform should be seen for what
they are: genuine efforts to enhance the political process rather than
infringements on freedom of expression. The statutory provision
involved in this case is part of the reform measures adopted in 1987 in

the aftermath of EDSA. A reform-minded Congress passed bills which

were consolidated into what is now R.A No. 6646 with near
unanimity. The House of Representatives, of which petitioner Pablo P.
Garcia was a distinguished member, voted 96 to 1 (Rep. Eduardo
Pilapil) in favor, while the Senate approved it 19-0. [40]
In his recent book, The Irony of Free Speech, Owen Fiss speaks of a
truth that is full of irony and contradiction: that the state can be both
an enemy and a friend of speech; that it can do terrible things to
undermine democracy but some wonderful things to enhance it as
well.[41] We hold R.A. No. 6646, 11(b) to be such a democracyenhancing measure. For Holmess marketplace of ideas can prove to
be nothing but a romantic illusion if the electoral process is badly
skewed, if not corrupted, by the unbridled use of money for campaign
propaganda.
The petition is DISMISSED.
SO ORDERED.
JOKER P. ARROYO, EDCEL C. LAGMAN, JOHN HENRY R.
OSMEA, WIGBERTO E. TAADA, andRONALDO B. ZAMORA
, Petitioners vs. JOSE DE VENECIA, RAUL DAZA, RODOLFO
ALBANO, THE EXECUTIVE SECRETARY, THESECRETARY OF
FINANCE, AND THE COMMISSIONER OF INTERNAL REVENUE,
Respondents
G.R. No. 127255. June 26, 1998
Facts: The petitioners are challenging the validity of R.A. 8420
(amends certain provisions of the National Internal Revenue Code by
imposing Sin Taxes) by filing a petition for certiorari and/or
prohibition. They claim that respondents violated the rules of the
House which are "constitutionally mandated" so that their violation is
tantamount to a violation of the Constitution when the Chair of the
Committee(Deputy Speaker Raul Daza) allegedly ignored a privileged
question raised by Rep. Arroyo during the committee report for the
approval of R.A. 8420. Petitioners claim that there are actually four
different versions of the transcript of this portion of Rep. Arroyo's
interpellation:(1)the transcript of audio-sound recording of the
proceedings in the session hall(2) the transcript of the proceedings
from 3:00 p.m. to 3:40 p.m. of November 21,1996, as certified by the
Chief of the Transcription Division on November 21, 1996(3) the
transcript of the proceedings from 3:00 p.m. to 3:40 p.m. of November
21,1996 as certified by the Chief of the Transcription Division on
November 28, 1996(4) the published version Petitioners contend that

the House rules were adopted pursuant to the constitutional provision

that "each House may determine the rules of its proceedings" and that
for this reason they are judicially enforceable. This contention was
invoked by parties, although not successfully, precisely to support
claims of autonomy of the legislative branch to conduct its business
free from interference by courts. In this case, petitioners cite the
provision for the opposite purpose of invoking judicial review.
Issue:
Whether or not the House of Representatives acted with grave abuse
of discretion in enacting R.A. No. 8240 affects its validity?
Held:
The petition was dismissed. According to the findings of the court, the
alleged violations are merely internal rules of procedures rather than
what petitioners claim to be constitutional requirements for enacting
laws. In this case, no rights of private individuals are involved but only
those of a member who, instead of seeking redress in the House,
chose to transfer the dispute to this Court. It would be an unwarranted
invasion of the prerogative of a coequal department for this Court
either to set aside a legislative action as void because the Court
thinks the House has disregarded its own rules of procedure, or to
allow those defeated in the political arena to seek a rematch in the
judicial forum when petitioners can find their remedy in that
department itself.

HON. R. GLORIA VS COURT OF APPEALS

G.R. No. 131012 April 21, 1999
Ponente : MENDOZA, J
Facts:
Dr. Bienvenido Icasiano was appointed Schools Division
Superintendent of Quezon City in 1989. Upon recommendation of
DECS Secretary Ricardo T. Gloria, Icasiano was reassigned as
Superintendent of the Marikina Institute of Science and Technology
(MIST) to fill up the vacuum created by the retirement of its
Superintendent in 1994. Icasiano filed a TRO and preliminary
mandatory injuction enjoining the implementation of his reassignment.
The Court of Appeals granted the petition holding that the indefinite
reassignment is violative of Icasianos right to security of tenure.
The DECS Secretary argued that the filing of the case is improper
because the same attacks an act of the President, in violation of the
doctrine of presidential immunity from suit.
Issues:
1. Whether or not the filing of the case violates the presidential
immunity from suit.
2. Whether or not private respondent's reassignment is violative of his
security of tenure.
Held :
1. Petitioners contention is untenable for the simple reason that the
petition is directed against petitioners and not against the President.
The questioned acts are those of petitioners and not of the President.
Furthermore, presidential decisions may be questioned before the
courts where there is grave abuse of discretion or that the President
acted without or in excess of jurisdiction.
2. After a careful study, the Court upholds the finding of the
respondent court that the reassignment of petitioner to MIST "appears
to be indefinite". The same can be inferred from the Memorandum of
Secretary Gloria for President Fidel V. Ramos to the effect that the
reassignment of private respondent will "best fit his qualifications and
experience" being "an expert in vocational and technical education." It
can thus be gleaned that subject reassignment is more than

temporary as the private respondent has been described as fit for the
(reassigned) job, being an expert in the field. Besides, there is nothing
in the said Memorandum to show that the reassignment of private
respondent is temporary or would only last until a permanent
replacement is found as no period is specified or fixed; which fact
evinces an intention on the part of petitioners to reassign private
respondent with no definite period or duration. Such feature of the
reassignment in question is definitely violative of the security of tenure
of the private respondent. As held in Bentain vs. Court of Appeals
(209 SCRA 644):
"Security of tenure is a fundamental and constitutionally guaranteed
feature of our civil service. The mantle of its protection extends not
only to employees removed without cause but also to cases of
unconsented transfers which are tantamount to illegal removals
(Department of Education, Culture and Sports vs. Court of Appeals,
183 SCRA 555; Ibanez vs. COMELEC, 19 SCRA 1002; Brillantes vs.
Guevarra, 27 SCRA 138).
While a temporary transfer or assignment of personnel is permissible
even without the employees prior consent, it cannot be done when
the transfer is a preliminary step toward his removal, or is a scheme to
lure him away from his permanent position, or designed to indirectly
terminate his service, or force his resignation. Such a transfer would
in effect circumvent the provision which safeguards the tenure of
office of those who are in the Civil Service (Sta. Maria vs. Lopez, 31
SCRA 651; Garcia vs. Lejano, 109 Phil. 116)." Having found the
reassignment of private respondent to the MIST to be violative of his
security of tenure, the order for his reassignment to the MIST cannot
be countenanced.

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.
G.R. No. 180050, February 10, 2010
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), [2] the 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.
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 MacapagalArroyo. 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
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. EcleoVillaroman 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 withoutsubstantial 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]

required land area of 2,000 square kilometers under paragraph 2 of

Article 9 of the Rules and Regulations Implementing the Local
Government Code.

The main issue is whether or not R.A. No. 9355 violates Section 10,
Article X of the Constitution.

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.

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.
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

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
prices and either of the following requisites:

on 1991 constant

(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.
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 "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
applicablein 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 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.
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 the Sangguniang 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 1991[27] 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 theliga pursuant to Art. 211(g) of the
Rules and Regulations Implementing the Local Government Code of

1991. Moreover, there was no indication that Secs. 491 [28] 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 the Sangguniang 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 the barangays 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.[31] 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, [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 landarea 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
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.) or802.12 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.

within that time frame, three years, there could be an increase in

population or transfer of residents, is that possible?
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?

The pertinent portion of the deliberation on House Bill No. 884

creating the Province of Dinagat reads:

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 (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.

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.

xxxx

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.

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,

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.
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.
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.

WHEREFORE, foregoing premises considered, the Court hereby grants

[Antonios] prayer for recognition and the same is hereby judicially
approved. x x x Consequently, the Court forthwith issues the following
Order granting the other reliefs sought in the Petition, to wit:

GRACE M. GRANDE, Petitioner, vs.

PATRICIO T. ANTONIO, Respondent
G.R. No. 206248, February 18, 2014
DECISION

a. Ordering the Office of the City Registrar of the City of Makati to

cause the entry of the name of [Antonio] as the father of the
aforementioned minors in their respective Certificate of Live Birth
and causing the correction/change and/or annotation of the
surnames of said minors in their Certificate of Live Birth from
Grande to Antonio;

VELASCO, JR., J.:

Before this Court is a Petition for Review on Certiorari under Rule 45,
assailing the July 24, 2012 Decision and March 5, 2013 Resolution of
the Court of Appeals (CA) in CA-G.R. CV No. 96406.
1

b. Granting [Antonio] the right to jointly exercise Parental

Authority with [Grande] over the persons of their minor children,
Andre Lewis Grande and Jerard Patrick Grande;

As culled from the records, the facts of this case are:

c. Granting [Antonio] primary right and immediate custody over

the parties minor children Andre Lewis Grandre and Jerard
Patrick Grande who shall stay with [Antonios] residence in the
Philippines from Monday until Friday evening and to [Grandes]
custody from Saturday to Sunday evening;

Petitioner Grace Grande (Grande) and respondent Patricio Antonio

(Antonio) for a period of time lived together as husband and wife,
although Antonio was at that time already married to someone else. Out
of this illicit relationship, two sons were born: Andre Lewis (on February
8, 1998) and Jerard Patrick (on October 13, 1999). The children were not
expressly recognized by respondent as his own in the Record of Births of
the children in the Civil Registry. The parties relationship, however,
eventually turned sour, and Grande left for the United States with her two
children in May 2007. This prompted respondent Antonio to file a Petition
for Judicial Approval of Recognition with Prayer to take Parental Authority,
Parental Physical Custody, Correction/Change of Surname of Minors and
for the Issuance of Writ of Preliminary Injunction before the Regional Trial
Court, Branch 8 of Aparri, Cagayan (RTC), appending a notarized Deed
of Voluntary Recognition of Paternity of the children.
3

d. Ordering [Grande] to immediately surrender the persons and

custody of minors Andre Lewis Grande and Jerard Patrick
Grande unto [Antonio] for the days covered by the Order;
e. Ordering parties to cease and desist from bringing the
aforenamed minors outside of the country, without the written
consent of the other and permission from the court.
f. Ordering parties to give and share the support of the minor
children Andre Lewis Grande and Jerard Patrick Grande in the
amount of P30,000 per month at the rate of 70% for [Antonio] and
30% for [Grande]. (Emphasis supplied.)

On September 28, 2010, the RTC rendered a Decision in favor of herein

respondent Antonio, ruling that "[t]he evidence at hand is overwhelming
that the best interest of the children can be promoted if they are under
the sole parental authority and physical custody of [respondent
Antonio]." Thus, the court a quo decreed the following:
6

Aggrieved, petitioner Grande moved for reconsideration. However, her

motion was denied by the trial court in its Resolution dated November 22,
2010 for being pro forma and for lack of merit.
8

Petitioner Grande then filed an appeal with the CA attributing grave error
on the part of the RTC for allegedly ruling contrary to the law and
jurisprudence respecting the grant of sole custody to the mother over her
illegitimate children. In resolving the appeal, the appellate court modified
in part the Decision of the RTC. The dispositive portion of the CA
Decision reads:
9

WHEREFORE, the appeal is partly GRANTED. Accordingly, the appealed

Decision of the Regional Trial Court Branch 8, Aparri Cagayan in SP
Proc. Case No. 11-4492 is MODIFIED in part and shall hereinafter read
as follows:
a. The Offices of the Civil Registrar General and the City Civil
Registrar of Makati City are DIRECTED to enter the surname
Antonio as the surname of Jerard Patrick and Andre Lewis, in
their respective certificates of live birth, and record the same in
the Register of Births;
b. [Antonio] is ORDERED to deliver the minor children Jerard
Patrick and Andre Lewis to the custody of their mother herein
appellant, Grace Grande who by virtue hereof is hereby awarded
the full or sole custody of these minor children;
c. [Antonio] shall have visitorial rights at least twice a week, and
may only take the children out upon the written consent of
[Grande]; and

rendered her unsuitable to raise the minors, she cannot be deprived of

her sole parental custody over their children.
The appellate court, however, maintained that the legal consequence of
the recognition made by respondent Antonio that he is the father of the
minors, taken in conjunction with the universally protected "best-interestof-the-child" clause, compels the use by the children of the surname
"ANTONIO."
11

As to the issue of support, the CA held that the grant is legally in order
considering that not only did Antonio express his willingness to give
support, it is also a consequence of his acknowledging the paternity of
the minor children. Lastly, the CA ruled that there is no reason to deprive
respondent Antonio of his visitorial right especially in view of the
constitutionally inherent and natural right of parents over their children.
12

13

Not satisfied with the CAs Decision, petitioner Grande interposed a

partial motion for reconsideration, particularly assailing the order of the
CA insofar as it decreed the change of the minors surname to "Antonio."
When her motion was denied, petitioner came to this Court via the
present petition. In it, she posits that Article 176 of the Family Codeas
amended by Republic Act No. (RA) 9255, couched as it is in permissive
languagemay not be invoked by a father to compel the use by his
illegitimate children of his surname without the consent of their mother.
We find the present petition impressed with merit.

d. The parties are DIRECTED to give and share in support of the

minor children Jerard Patrick and Andre Lewis in the amount
of P30,000.00 per month at the rate of 70% for [Antonio] and 30%
for [Grande]. (Emphasis supplied.)

The sole issue at hand is the right of a father to compel the use of his
surname by his illegitimate children upon his recognition of their filiation.
Central to the core issue is the application of Art. 176 of the Family Code,
originally phrased as follows:

In ruling thus, the appellate court ratiocinated that notwithstanding the

fathers recognition of his children, the mother cannot be deprived of her
sole parental custody over them absent the most compelling of
reasons. Since respondent Antonio failed to prove that petitioner Grande
committed any act that adversely affected the welfare of the children or

Illegitimate children shall use the surname and shall be under the
parental authority of their mother, and shall be entitled to support in
conformity with this Code. The legitime of each illegitimate child shall
consist of one-half of the legitime of a legitimate child. Except for this
modification, all other provisions in the Civil Code governing successional
rights shall remain in force.

10

This provision was later amended on March 19, 2004 by RA 9255 which
now reads:
14

Art. 176. Illegitimate children shall use the surname and shall be under
the parental authority of their mother, and shall be entitled to support in
conformity with this Code. However, illegitimate children may use the
surname of their father if their filiation has been expressly recognized by
their father through the record of birth appearing in the civil register, or
when an admission in a public document or private handwritten
instrument is made by the father. Provided, the father has the right to
institute an action before the regular courts to prove non-filiation during
his lifetime. The legitime of each illegitimate child shall consist of one-half
of the legitime of a legitimate child. (Emphasis supplied.)
From the foregoing provisions, it is clear that the general rule is that an
illegitimate child shall use the surname of his or her mother. The
exception provided by RA 9255 is, in case his or her filiation is expressly
recognized by the father through the record of birth appearing in the civil
register or when an admission in a public document or private
handwritten instrument is made by the father. In such a situation, the
illegitimate child may use the surname of the father.
In the case at bar, respondent filed a petition for judicial approval of
recognition of the filiation of the two children with the prayer for the
correction or change of the surname of the minors from Grande to
Antonio when a public document acknowledged before a notary public
under Sec. 19, Rule 132 of the Rules of Court is enough to establish the
paternity of his children. But he wanted more: a judicial conferment of
parental authority, parental custody, and an official declaration of his
childrens surname as Antonio.
15

Now comes the matter of the change of surname of the illegitimate

children. Is there a legal basis for the court a quo to order the change of
the surname to that of respondent?
Clearly, there is none. Otherwise, the order or ruling will contravene the
explicit and unequivocal provision of Art. 176 of the Family Code, as
amended by RA 9255.
Art. 176 gives illegitimate children the right to decide if they want to use
the surname of their father or not. It is not the father (herein respondent)
or the mother (herein petitioner) who is granted by law the right to dictate
the surname of their illegitimate children.
Nothing is more settled than that when the law is clear and free from
ambiguity, it must be taken to mean what it says and it must be given its
literal meaning free from any interpretation. Respondents position that
the court can order the minors to use his surname, therefore, has no
legal basis.
16

On its face, Art. 176, as amended, is free from ambiguity. And where
there is no ambiguity, one must abide by its words. The use of the word
"may" in the provision readily shows that an acknowledged illegitimate
child is under no compulsion to use the surname of his illegitimate father.
The word "may" is permissive and operates to confer discretion upon the
illegitimate children.
17

It is best to emphasize once again that the yardstick by which policies

affecting children are to be measured is their best interest. On the matter
of childrens surnames, this Court has, time and again, rebuffed the idea
that the use of the fathers surname serves the best interest of the minor
child. In Alfon v. Republic, for instance, this Court allowed even a
legitimate child to continue using the surname of her mother rather than
that of her legitimate father as it serves her best interest and there is no
legal obstacle to prevent her from using the surname of her mother to
which she is entitled. In fact, in Calderon v. Republic, this Court,
upholding the best interest of the child concerned, even allowed the use
of a surname different from the surnames of the childs father or mother.
Indeed, the rule regarding the use of a childs surname is second only to
18

Parental authority over minor children is lodged by Art. 176 on the

mother; hence, respondents prayer has no legal mooring. Since parental
authority is given to the mother, then custody over the minor children also
goes to the mother, unless she is shown to be unfit.

19

the rule requiring that the child be placed in the best possible situation
considering his circumstances.
In Republic of the Philippines v. Capote, We gave due deference to the
choice of an illegitimate minor to use the surname of his mother as it
would best serve his interest, thus:

7.1.1 The illegitimate child shall use the surname of the father if a public
document is executed by the father, either at the back of the Certificate of
Live Birth or in a separate document.

20

The foregoing discussion establishes the significant connection of a

persons name to his identity, his status in relation to his parents and his
successional rights as a legitimate or illegitimate child. For sure, these
matters should not be taken lightly as to deprive those who may, in any
way, be affected by the right to present evidence in favor of or against
such change.
The law and facts obtaining here favor Giovannis petition. Giovanni
availed of the proper remedy, a petition for change of name under Rule
103 of the Rules of Court, and complied with all the procedural
requirements. After hearing, the trial court found (and the appellate court
affirmed) that the evidence presented during the hearing of Giovannis
petition sufficiently established that, under Art. 176 of the Civil Code,
Giovanni is entitled to change his name as he was never recognized by
his father while his mother has always recognized him as her child. A
change of name will erase the impression that he was ever recognized by
his father. It is also to his best interest as it will facilitate his mothers
intended petition to have him join her in the United States. This Court will
not stand in the way of the reunification of mother and son. (Emphasis
supplied.)

7.1.2 If admission of paternity is made through a private instrument, the

child shall use the surname of the father, provided the registration is
supported by the following documents:
xxxx
7.2. For Births Previously Registered under the Surname of the Mother
7.2.1 If filiation has been expressly recognized by the father, the child
shall use the surname of the father upon the submission of the
accomplished AUSF [Affidavit of Use of the Surname of the Father].
7.2.2 If filiation has not been expressly recognized by the father, the child
shall use the surname of the father upon submission of a public
document or a private handwritten instrument supported by the
documents listed in Rule 7.1.2.
7.3 Except in Item 7.2.1, the consent of the illegitimate child is required if
he/she has reached the age of majority. The consent may be contained in
a separate instrument duly notarized.
xxxx
Rule 8. Effects of Recognition

An argument, however, may be advanced advocating the mandatory use

of the fathers surname upon his recognition of his illegitimate children,
citing the Implementing Rules and Regulations (IRR) of RA 9255, which
states:

8.1 For Births Not Yet Registered

21

Rule 7. Requirements for the Child to Use the Surname of the Father

8.1.1 The surname of the father shall be entered as the last name of the
child in the Certificate of Live Birth. The Certificate of Live Birth shall be
recorded in the Register of Births.

7.1 For Births Not Yet Registered

xxxx
8.2 For Births Previously Registered under the Surname of the Mother

8.2.1 If admission of paternity was made either at the back of the

Certificate of Live Birth or in a separate public document or in a private
handwritten document, the public document or AUSF shall be recorded in
the Register of Live Birth and the Register of Births as follows:

quasi- judicial bodies when found contrary to statutes and/or the

Constitution. Section 5(5), Art. VIII of the Constitution provides:

"The surname of the child is hereby changed from (original surname) to

(new surname) pursuant to RA 9255."

xxxx

The original surname of the child appearing in the Certificate of Live Birth
and Register of Births shall not be changed or deleted.
8.2.2 If filiation was not expressly recognized at the time of registration,
the public document or AUSF shall be recorded in the Register of Legal
Instruments. Proper annotation shall be made in the Certificate of Live
Birth and the Register of Births as follows:
"Acknowledged by (name of father) on (date). The surname of the child is
hereby changed from (original surname) on (date) pursuant to RA 9255."
(Emphasis supplied.)
Nonetheless, the hornbook rule is that an administrative issuance cannot
amend a legislative act. In MCC Industrial Sales Corp. v. Ssangyong
Corporation, We held:
22

After all, the power of administrative officials to promulgate rules in the

implementation of a statute is necessarily limited to what is found in the
legislative enactment itself. The implementing rules and regulations of a
law cannot extend the law or expand its coverage, as the power to
amend or repeal a statute is vested in the Legislature. Thus, if a
discrepancy occurs between the basic law and an implementing rule or
regulation, it is the former that prevails, because the law cannot be
broadened by a mere administrative issuance an administrative
agency certainly cannot amend an act of Congress.

24

25

Sec. 5. The Supreme Court shall have the following powers:

(5) Promulgate rules concerning the protection and enforcement of

constitutional rights, pleading, practice and procedure in all courts, the
admission to the practice of law, the Integrated Bar, and legal assistance
to the underprivileged. Such rules shall provide a simplified and
inexpensive procedure for the speedy disposition of cases, shall be
uniform for all courts of the same grade, and shall not diminish, increase,
or modify substantive rights. Rules of procedure of special courts and
quasi-judicial bodies shall remain effective unless disapproved by the
Supreme Court. (Emphasis supplied.)
Thus, We exercise this power in voiding the above-quoted provisions of
the IRR of RA 9255 insofar as it provides the mandatory use by
illegitimate children of their fathers surname upon the latters recognition
of his paternity.
To conclude, the use of the word "shall" in the IRR of RA 9255 is of no
moment. The clear, unambiguous, and unequivocal use of "may" in Art.
176 rendering the use of an illegitimate fathers surname discretionary
controls, and illegitimate children are given the choice on the surnames
by which they will be known.
At this juncture, We take note of the letters submitted by the children,
now aged thirteen (13) and fifteen (15) years old, to this Court declaring
their opposition to have their names changed to "Antonio." However,
since these letters were not offered before and evaluated by the trial
court, they do not provide any evidentiary weight to sway this Court to
rule for or against petitioner. A proper inquiry into, and evaluation of the
evidence of, the children's choice of surname by the trial court is
necessary.
26

27

Thus, We can disregard contemporaneous construction where there is no

ambiguity in law and/or the construction is clearly erroneous. What is
more, this Court has the constitutional prerogative and authority to strike
down and declare as void the rules of procedure of special courts and
23

WHEREFORE, the instant petition is PARTIALLY GRANTED. The July

24, 2012 Decision of the Court of Appeals in CA-G.R. CV No. 96406 is
MODIFIED, the dispositive portion of which shall read:
WHEREFORE, the appeal is partly GRANTED. Accordingly. the appealed
Decision of the Regional Trial Court Branch 8, Aparri Cagayan in SP
Proc. Case No. 11-4492 is MODIFIED in part and shall hereinafter read
as follows:
a. [Antonio] is ORDERED to deliver the minor children Jerard
Patrick and Andre Lewis to the custody of their mother herein
appellant, Grace Grande who by virtue hereof is hereby awarded
the full or sole custody of these minor children;
b. [Antonio] shall have visitation rights at least twice a week, and
may only take the children out upon the written consent of
[Grande]:
28

c. The parties are DIRECTED to give and share in support of the

minor children Jerard Patrick and Andre Lewis in the amount
of P30,000.00 per month at the rate of 70% for [Antonio] and 30%
for [Grande]; and
d. The case is REMANDED to the Regional Trial Court, Branch 8
of Aparri, Cagayan for the sole purpose of determining the
surname to be chosen by the children Jerard Patrick and Andre
Lewis.
Rule 7 and Rule 8 of the Office of the Civil Registrar General
Administrative Order No. 1, Series of 2004 are DISAPPROVED and
hereby declared NULL and VOID.
SO ORDERED.

Alvarez vs. Guingona

252 SCRA 695 Political Law Municipal Corporation LGU
Requirement Income Inclusion of IRAs
In April 1993, House Bill 8817 (An Act Converting the Municipality of
Santiago into an Independent Component City to be known as the
City of Santiago) was passed in the House of Representatives.
In May 1993, a Senate Bill (SB 1243) of similar title and content with
that of HB 8817 was introduced in the Senate.
In January 1994, HB 8817 was transmitted to the Senate. In February
1994, the Senate conducted a public hearing on SB 1243. In March
1994, the Senate Committee on Local Government rolled out its
recommendation for approval of HB 8817 as it was totally the same
with SB 1243. Eventually, HB 8817 became a law (RA 7720).
Now Senator Heherson Alvarez et al are assailing the constitutionality
of the said law on the ground that the bill creating the law did not
originate from the lower house and that City of Santiago was not able
to comply with the income of at least P20M per annum in order for it to
be a city. That in the computation of the reported average income of
P20,974,581.97, the IRA was included which should not be.
ISSUES:
1. Whether or not RA 7720 is invalid for not being originally from the
HOR.

2. Whether or not the IRA should be included in the computation of an

LGUs income.
HELD:
1. NO. The house bill was filed first before the senate bill as the
record shows. Further, the Senate held in abeyance any hearing on
the said SB while the HB was on its 1 st, 2nd and 3rd reading in the
HOR. The Senate only conducted its 1st hearing on the said SB one
month after the HB was transmitted to the Senate (in anticipation of
the said HB as well).
2. YES. The IRA should be added in the computation of an LGUs
average annual income as was done in the case at bar. The IRAs are

items of income because they form part of the gross accretion of the
funds of the local government unit. The IRAs regularly and
automatically accrue to the local treasury without need of any further
action on the part of the local government unit. They thus constitute
income which the local government can invariably rely upon as the
source of much needed funds.
To reiterate, IRAs are a regular, recurring item of income; nil is there a
basis, too, to classify the same as a special fund or transfer, since
IRAs have a technical definition and meaning all its own as used in
the Local Government Code that unequivocally makes it distinct from
special funds or transfers referred to when the Code speaks of
funding support from the national government, its instrumentalities
and government-owned-or-controlled corporations.