[G.R. No. 129093. August 30, 2001.

HON. JOSE D. LINA, JR., SANGGUNIANG PANLALAWIGAN OF

LAGUNA, and HON. CALIXTO CATAQUIZ, petitioners, vs. HON.
FRANCISCO DIZON PAO and TONY CALVENTO, respondents.

Office of the Provincial Legal Officer for petitioners.

Edgardo B. Arellano for private respondent.

SYNOPSIS

Private respondent applied for a mayor's permit to operate a lotto outlet in San Pedro,
Laguna. It was denied on the ground that an ordinance entitled Kapasiyahan Blg. 508, T.
1995 dated September 18, 1995 of the Sangguniang Panlalawigan of Laguna prohibited
gambling in the province, including the operation of lotto. With the denial of his
application, private respondent filed an action for declaratory relief with prayer for
preliminary injunction and temporary restraining order. The trial court rendered judgment
in favor of private respondent enjoining petitioners from implementing or enforcing the
subject resolution. Motion for its reconsideration was denied. Hence, this recourse.
Petitioners contended that "the resolution is a policy declaration of the provincial
government of Laguna on its vehement opposition and/or objection to the operation of
and/or all forms of gambling including the lotto operation" and thus it is valid. On the other
hand, private respondent argued that the same curtailed the power of the state since the
legislature itself had declared lotto as legal and permitted its operation around the country.
The Court found that the questioned ordinance merely stated the "objection" of the council
to all forms of gambling including lotto. It is a mere policy statement and could not serve
as a valid ground to prohibit the operation of lotto, which is a legitimate business activity
duly authorized by the national government through an Act of Congress. In our system of
government, the power of the local government units to legislate and enact ordinances and
resolutions is merely a delegated power coming from Congress and these should not
contravene an existing statute enacted by Congress as the delegate cannot be superior to
the principal or exercise powers higher than those of the latter. Petition was denied and the
assailed order was affirmed. STHAID

SYLLABUS

1. POLITICAL LAW; LOCAL GOVERNMENT; ORDINANCE; POLICY

STATEMENT IN RESOLUTION EXPRESSING OBJECTION TO LOTTO, VALID;
CASE AT BAR. The ordinance, Kapasiyahan Blg. 508, T. 1995 of the Sangguniang
Panlalawigan of Laguna, merely states the "objection" of the council to the operation of
lotto. It is but a mere policy statement on the part of the local council, which is not self-
executing. Nor could it serve as a valid ground to prohibit the operation of the lotto system
in the province of Laguna. Even petitioners admit this in their petition. As a policy
statement expressing the local government's objection to the lotto, such resolution is valid.
This is part of the local government's autonomy to air its views which may be contrary to
that of the national government's. However, this freedom to exercise contrary views does
not mean that local governments may actually enact ordinances that go against laws duly
enacted by Congress. Given this premise, the assailed resolution in this case could not and
should not be interpreted as a measure or ordinance prohibiting the operation of lotto. To
conclude our resolution of the first issue, respondent mayor of San Pedro cannot avail of
Kapasiyahan Bilang 508, Taon 1995, of the Provincial Board of Laguna as justification to
prohibit lotto in his municipality. For said resolution is nothing but an expression of the
local legislative unit concerned. The Board's enactment, like spring water, could not rise
above its source of power, the national legislature.
2. CONSTITUTIONAL LAW; LEGISLATIVE DEPARTMENT; GAME OF LOTTO
MADE LEGAL BY LAW; CANNOT BE PROHIBITED BY ORDINANCE PASSED BY
LOCAL GOVERNMENT UNIT. The game of lotto is a game of chance duly authorized
by the national government through an Act of Congress. Republic Act 1169, as amended
by Batas Pambansa Blg. 42, is the law which grants a franchise to the PCSO and allows it
to operate the lotteries. This statute remains valid today. While lotto is clearly a game of
chance, the national government deems it wise and proper to permit it. Hence, the
Sangguniang Panlalawigan of Laguna, a local government unit, cannot issue a resolution
or an ordinance that would seek to prohibit permits. Stated otherwise, what the national
legislature expressly allows by law, such as lotto, a provincial board may not disallow by
ordinance or resolution.
3. ID.; ID.; DELEGATED POWER OF LEGISLATION; ORDINANCES SHOULD NOT
CONTRAVENE EXISTING STATUTE ENACTED BY CONGRESS. In our system
of government, the power of local government units to legislate and enact ordinances and
resolutions is merely a delegated power coming from Congress. Ours is still a unitary form
of government, not a federal state. Being so, any form of autonomy granted to local
governments will necessarily be limited and confined within the extent allowed by the
central authority. Besides, the principle of local autonomy under the 1987 Constitution
simply means "decentralization." It does not make local governments sovereign within the
state or an "imperium in imperio."
4. ID.; ID.; ID.; ID.; RATIONALE. The reasons for this is obvious, as elucidated in
Magtajas v. Pryce Properties Corp. Municipal governments are only agents of the national
government. Local councils exercise only delegated legislative powers conferred upon
them by Congress as the national lawmaking body. The delegate cannot be superior to the
principal or exercise powers higher than those of the latter. It is a heresy to suggest that the
local government units can undo the acts of Congress, from which they have derived their
power in the first place, and negate by mere ordinance the mandate of the statute.
5. ADMINISTRATIVE LAW, LOCAL GOVERNMENT CODE;PRIOR
CONSULTATION REQUIRED IN SECTIONS 2(C) AND 27 THEREOF APPLY TO
NATIONAL PROGRAMS OR PROJECTS IMPLEMENTED BY LOCAL
COMMUNITY; LOTTO NOT EMBRACED THEREIN. As for the second issue, we
hold that petitioners erred in declaring that Sections 2 (c) and 27 of Republic Act 7160,
otherwise known as the Local Government Code of 1991, apply mandatorily in the setting
up of lotto outlets around the country. From a careful reading of said provisions, we find
that these apply only to national programs and/or projects which are to be implemented in
a particular local community. Lotto is neither a program nor a project of the national
government, but of a charitable institution, the PCSO. Though sanctioned by the national
government, it is far fetched to say that lotto falls within the contemplation of Sections 2
(c) and 27 of the Local Government Code.

DECISION

QUISUMBING, J : p

For our resolution is a petition for review on certiorari seeking the reversal of the decision
1 dated February 10, 1997 of the Regional Trial Court of San Pedro, Laguna, Branch 93,
enjoining petitioners from implementing or enforcing Kapasiyahan Bilang 508, Taon
1995, of the Sangguniang Panlalawigan of Laguna and its subsequent Order 2 dated April
21, 1997 denying petitioners' motion for reconsideration.
On December 29, 1995, respondent Tony Calvento was appointed agent by the Philippine
Charity Sweepstakes Office (PCSO) to install Terminal OM 20 for the operation of lotto.
He asked Mayor Calixto Cataquiz, Mayor of San Pedro, Laguna, for a mayor's permit to
open the lotto outlet. This was denied by Mayor Cataquiz in a letter dated February 19,
1996. The ground for said denial was an ordinance passed by the Sangguniang
Panlalawigan of Laguna entitled Kapasiyahan Blg. 508, T. 1995 which was issued on
September 18, 1995. The ordinance reads:
ISANG KAPASIYAHAN TINUTUTULAN ANG MGA "ILLEGAL GAMBLING"
LALO NA ANG LOTTO SA LALAWIGAN NG LAGUNA
SAPAGKA'T, ang sugal dito sa lalawigan ng Laguna ay talamak na;
SAPAGKA'T, ang sugal ay nagdudulot ng masasamang impluwensiya lalo't higit
sa mga kabataan;
KUNG KAYA'T DAHIL DITO, at sa mungkahi nina Kgg. Kgd. Juan M. Unico at
Kgg. Kgd. Gat-Ala A. Alatiit, pinangalawahan ni Kgg. Kgd. Meliton C. Larano
at buong pagkakaisang sinangayunan ng lahat ng dumalo sa pulong;
IPINASIYA, na tutulan gaya ng dito ay mahigpit na TINUTUTULAN ang ano
mang uri ng sugal dito sa lalawigan ng Laguna lalo't higit ang Lotto;
 IPINASIYA PA RIN na hilingin tulad ng dito ay hinihiling sa Panlalawigang
pinuno ng Philippine National Police (PNP) Col. [illegible] na mahigpit na pag-
ibayuhin ang pagsugpo sa lahat ng uri ng illegal na sugal sa buong lalawigan ng
Laguna lalo na ang "Jueteng". 3
As a result of this resolution of denial, respondent Calvento filed a complaint for
declaratory relief with prayer for preliminary injunction and temporary restraining order.
In the said complaint, respondent Calvento asked the Regional Trial Court of San Pedro
Laguna, Branch 93, for the following reliefs: (1) a preliminary injunction or temporary
restraining order, ordering the defendants to refrain from implementing or enforcing
Kapasiyahan Blg. 508, T. 1995; (2) an order requiring Hon. Municipal Mayor Calixto R.
Cataquiz to issue a business permit for the operation of a lotto outlet; and (3) an order
annulling or declaring as invalid Kapasiyahan Blg. 508, T. 1995.
On February 10, 1997, the respondent judge, Francisco Dizon Pao, promulgated his
decision enjoining the petitioners from implementing or enforcing resolution or
Kapasiyahan Blg. 508, T. 1995. The dispositive portion of said decision reads: TAIEcS

WHEREFORE, premises considered, defendants, their agents and representatives

are hereby enjoined from implementing or enforcing resolution or kapasiyahan
blg. 508, T. 1995 of the Sangguniang Panlalawigan ng Laguna prohibiting the
operation of the lotto in the province of Laguna.
SO ORDERED. 4
Petitioners filed a motion for reconsideration which was subsequently denied in an Order
dated April 21, 1997, which reads:

Acting on the Motion for Reconsideration filed by defendants Jose D. Lina, Jr.
and the Sangguniang Panlalawigan of Laguna, thru counsel, with the opposition
filed by plaintiff's counsel and the comment thereto filed by counsel for the
defendants which were duly noted, the Court hereby denies the motion for lack
of merit.
SO ORDERED. 5
On May 23, 1997, petitioners filed this petition alleging that the following errors were
committed by the respondent trial court:
I
THE TRIAL COURT ERRED IN ENJOINING THE PETITIONERS FROM
IMPLEMENTING KAPASIYAHAN BLG. 508, T. 1995 OF THE
SANGGUNIANG PANLALAWIGAN OF LAGUNA PROHIBITING THE
OPERATION OF THE LOTTO IN THE PROVINCE OF LAGUNA.
II
 THE TRIAL COURT FAILED TO APPRECIATE THE ARGUMENT
POSITED BY THE PETITIONERS THAT BEFORE ANY GOVERNMENT
PROJECT OR PROGRAM MAY BE IMPLEMENTED BY THE NATIONAL
AGENCIES OR OFFICES, PRIOR CONSULTATION AND APPROVAL BY
THE LOCAL GOVERNMENT UNITS CONCERNED AND OTHER
CONCERNED SECTORS IS REQUIRED.
Petitioners contend that the assailed resolution is a valid policy declaration of the Provincial
Government of Laguna of its vehement objection to the operation of lotto and all forms of
gambling. It is likewise a valid exercise of the provincial government's police power under
the General Welfare Clause of Republic Act 7160, otherwise known as the Local
Government Code of 1991.6 They also maintain that respondent's lotto operation is illegal
because no prior consultations and approval by the local government were sought before it
was implemented contrary to the express provisions of Sections 2 (c) and 27 of R.A. 7160.
7

For his part, respondent Calvento argues that the questioned resolution is, in effect, a
curtailment of the power of the state since in this case the national legislature itself had
already declared lotto as legal and permitted its operations around the country. 8 As for the
allegation that no prior consultations and approval were sought from the sangguniang
panlalawigan of Laguna, respondent Calvento contends this is not mandatory since such a
requirement is merely stated as a declaration of policy and not a self-executing provision
of the Local Government Code of 1991. 9 He also states that his operation of the lotto
system is legal because of the authority given to him by the PCSO, which in turn had been
granted a franchise to operate the lotto by Congress. 10
The Office of the Solicitor General (OSG), for the State, contends that the Provincial
Government of Laguna has no power to prohibit a form of gambling which has been
authorized by the national government. 11 He argues that this is based on the principle that
ordinances should not contravene statutes as municipal governments are merely agents of
the national government. The local councils exercise only delegated legislative powers
which have been conferred on them by Congress. This being the case, these councils, as
delegates, cannot be superior to the principal or exercise powers higher than those of the
latter. The OSG also adds that the question of whether gambling should be permitted is for
Congress to determine, taking into account national and local interests. Since Congress has
allowed the PCSO to operate lotteries which PCSO seeks to conduct in Laguna, pursuant
to its legislative grant of authority, the province's Sangguniang Panlalawigan cannot
nullify the exercise of said authority by preventing something already allowed by Congress.
The issues to be resolved now are the following: (1) whether Kapasiyahan Blg. 508, T.
1995 of the Sangguniang Panlalawigan of Laguna and the denial of a mayor's permit based
thereon are valid; and (2) whether prior consultations and approval by the concerned
Sanggunian are needed before a lotto system can be operated in a given local government
unit.
The entire controversy stemmed from the refusal of Mayor Cataquiz to issue a mayor's
permit for the operation of a lotto outlet in favor of private respondent. According to the
mayor, he based his decision on an existing ordinance prohibiting the operation of lotto in
the province of Laguna. The ordinance, however, merely states the "objection" of the
council to the said game. It is but a mere policy statement on the part of the local council,
which is not self-executing. Nor could it serve as a valid ground to prohibit the operation
of the lotto system in the province of Laguna. Even petitioners admit as much when they
stated in their petition that:
DISHEA

5.7. The terms of the Resolution and the validity thereof are express and clear.
The Resolution is a policy declaration of the Provincial Government of Laguna
of its vehement opposition and/or objection to the operation of and/or all forms
of gambling including the Lotto operation in the Province of Laguna. 12
As a policy statement expressing the local government's objection to the lotto, such
resolution is valid. This is part of the local government's autonomy to air its views which
may be contrary to that of the national government's. However, this freedom to exercise
contrary views does not mean that local governments may actually enact ordinances that
go against laws duly enacted by Congress. Given this premise, the assailed resolution in
this case could not and should not be interpreted as a measure or ordinance prohibiting the
operation of lotto.
The game of lotto is a game of chance duly authorized by the national government through
an Act of Congress. Republic Act 1169, as amended by Batas Pambansa Blg. 42, is the
law which grants a franchise to the PCSO and allows it to operate the lotteries. The
pertinent provision reads:
SECTION 1. The Philippine Charity Sweepstakes Office. The Philippine
Charity Sweepstakes Office, hereinafter designated the Office, shall be the
principal government agency for raising and providing for funds for health
programs, medical assistance and services and charities of national character, and
as such shall have the general powers conferred in section thirteen of Act
Numbered One thousand four hundred fifty-nine, as amended, and shall have the
authority:
A. To hold and conduct charity sweepstakes races, lotteries, and other similar
activities, in such frequency and manner, as shall be determined, and subject to
such rules and regulations as shall be promulgated by the Board of Directors.
This statute remains valid today. While lotto is clearly a game of chance, the national
government deems it wise and proper to permit it. Hence, the Sangguniang Panlalawigan
of Laguna, a local government unit, cannot issue a resolution or an ordinance that would
seek to prohibit permits. Stated otherwise, what the national legislature expressly allows
by law, such as lotto, a provincial board may not disallow by ordinance or resolution.
In our system of government, the power of local government units to legislate and enact
ordinances and resolutions is merely a delegated power coming from Congress. As held in
Tatel vs. Virac, 13 ordinances should not contravene an existing statute enacted by
Congress. The reasons for this is obvious, as elucidated in Magtajas v. Pryce Properties
Corp. 14
Municipal governments are only agents of the national government. Local
councils exercise only delegated legislative powers conferred upon them by
Congress as the national lawmaking body. The delegate cannot be superior to the
principal or exercise powers higher than those of the latter. It is a heresy to suggest
that the local government units can undo the acts of Congress, from which they
have derived their power in the first place, and negate by mere ordinance the
mandate of the statute.
Municipal corporations owe their origin to, and derive their powers and rights
wholly from the legislature. It breathes into them the breath of life, without which
they cannot exist. As it creates, so it may destroy. As it may destroy, it may
abridge and control. Unless there is some constitutional limitation on the right,
the legislature might, by a single act, and if we can suppose it capable of so great
a folly and so great a wrong, sweep from existence all of the municipal
corporations in the state, and the corporation could not prevent it. We know of no
limitation on the right so far as the corporation themselves are concerned. They
are, so to phrase it, the mere tenants at will of the legislature (citing Clinton vs.
Ceder Rapids, etc. Railroad Co., 24 Iowa 455).
Nothing in the present constitutional provision enhancing local autonomy dictates a
different conclusion.
The basic relationship between the national legislature and the local government
units has not been enfeebled by the new provisions in the Constitution
strengthening the policy of local autonomy. Without meaning to detract from that
policy, we here confirm that Congress retains control of the local government
units although in significantly reduced degree now than under our previous
Constitutions. The power to create still includes the power to destroy. The power
to grant still includes the power to withhold or recall. True, there are certain
notable innovations in the Constitution, like the direct conferment on the local
government units of the power to tax (citing Art. X, Sec. 5, Constitution), which
cannot now be withdrawn by mere statute. By and large, however, the national
legislature is still the principal of the local government units, which cannot defy
its will or modify or violate it. 15
Ours is still a unitary form of government, not a federal state. Being so, any form of
autonomy granted to local governments will necessarily be limited and confined within the
extent allowed by the central authority. Besides, the principle of local autonomy under the
1987 Constitution simply means "decentralization". It does not make local governments
sovereign within the state or an "imperium in imperio". 16 CDEaAI

To conclude our resolution of the first issue, respondent mayor of San Pedro, cannot avail
of Kapasiyahan Bilang 508, Taon 1995, of the Provincial Board of Laguna as justification
to prohibit lotto in his municipality. For said resolution is nothing but an expression of the
local legislative unit concerned. The Board's enactment, like spring water, could not rise
above its source of power, the national legislature.

As for the second issue, we hold that petitioners erred in declaring that Sections 2 (c) and
27 of Republic Act 7160, otherwise known as the Local Government Code of 1991, apply
mandatorily in the setting up of lotto outlets around the country. These provisions state:
SECTION 2. Declaration of Policy. . . .
(c) It is likewise the policy of the State to require all national agencies and offices
to conduct periodic consultations with appropriate local government units, non-
governmental and people's organizations, and other concerned sectors of the
community before any project or program is implemented in their respective
jurisdictions.
SECTION 27. Prior Consultations Required. No project or program shall be
implemented by government authorities unless the consultations mentioned in
Section 2 (c) and 26 hereof are complied with, and prior approval of the
sanggunian concerned is obtained; Provided, that occupants in areas where such
projects are to be implemented shall not be evicted unless appropriate relocation
sites have been provided, in accordance with the provisions of the Constitution.
From a careful reading of said provisions, we find that these apply only to national
programs and/or projects which are to be implemented in a particular local community.
Lotto is neither a program nor a project of the national government, but of a charitable
institution, the PCSO. Though sanctioned by the national government, it is far fetched to
say that lotto falls within the contemplation of Sections 2 (c) and 27 of the Local
Government Code.
Section 27 of the Code should be read in conjunction with Section 26 thereof. 17 Section
26 reads:
SECTION 26. Duty of National Government Agencies in the Maintenance of
Ecological Balance. It shall be the duty of every national agency or government-
owned or controlled corporation authorizing or involved in the planning and
implementation of any project or program that may cause pollution, climatic
change, depletion of non-renewable resources, loss of crop land, range-land, or
forest cover, and extinction of animal or plant species, to consult with the local
government units, nongovernmental organizations, and other sectors concerned
and explain the goals and objectives of the project or program, its impact upon
the people and the community in terms of environmental or ecological balance,
and the measures that will be undertaken to prevent or minimize the adverse
effects thereof.
Thus, the projects and programs mentioned in Section 27 should be interpreted to mean
projects and programs whose effects are among those enumerated in Section 26 and 27, to
wit, those that: (1) may cause pollution; (2) may bring about climatic change; (3) may cause
the depletion of non-renewable resources; (4) may result in loss of crop land, range-land,
or forest cover; (5) may eradicate certain animal or plant species from the face of the planet;
and (6) other projects or programs that may call for the eviction of a particular group of
people residing in the locality where these will be implemented. Obviously, none of these
effects will be produced by the introduction of lotto in the province of Laguna.
Moreover, the argument regarding lack of consultation raised by petitioners is clearly an
afterthought on their part. There is no indication in the letter of Mayor Cataquiz that this
was one of the reasons for his refusal to issue a permit. That refusal was predicated solely
but erroneously on the provisions of Kapasiyahan Blg. 508, Taon 1995, of the Sangguniang
Panlalawigan of Laguna.
In sum, we find no reversible error in the RTC decision enjoining Mayor Cataquiz from
enforcing or implementing the Kapasiyahan Blg. 508, T. 1995, of the Sangguniang
Panlalawigan of Laguna. That resolution expresses merely a policy statement of the
Laguna provincial board. It possesses no binding legal force nor requires any act of
implementation. It provides no sufficient legal basis for respondent mayor's refusal to issue
the permit sought by private respondent in connection with a legitimate business activity
authorized by a law passed by Congress.
WHEREFORE, the petition is DENIED for lack of merit. The Order of the Regional Trial
Court of San Pedro, Laguna enjoining the petitioners from implementing or enforcing
Resolution or Kapasiyahan Blg. 508, T. 1995, of the Provincial Board of Laguna is hereby
AFFIRMED. No costs.
SO ORDERED.
||| (Lina, Jr. v. Pao, G.R. No. 129093, [August 30, 2001], 416 PHIL 438-451)
[G.R. No. 125350. December 3, 2002.]

HON. RTC JUDGES MERCEDES G. DADOLE (Executive Judge,

Branch 28), ULRIC R. CAETE (Presiding Judge, Branch 25),
AGUSTINE R. VESTIL (Presiding Judge, Branch 56), HON. MTC
JUDGES TEMISTOCLES M. BOHOLST (Presiding Judge, Branch
1), VICENTE C. FANILAG (Judge Designate, Branch 2), and
WILFREDO A. DAGATAN (Presiding Judge, Branch 3), all of
Mandaue City, petitioners, vs. COMMISSION ON AUDIT,
respondent.

Malcomn D. Seno for petitioners.

The Solicitor General for respondent.

SYNOPSIS
In 1986, petitioners as RTC and MTC judges stationed in Mandaue City received a
monthly allowance of P1,260 each pursuant to the yearly appropriation ordinance.
Eventually, in 1991, it was increased to P1,500 for each judge. However, on March 15,
1994, the Department of Budget and Management (DBM) issued Local Budget Circular
No. 55 (LBC 55) which provides that the additional monthly allowances to be given by a
local government unit should not exceed P1,000 in provinces and cities and P700 in
municipalities. Acting on the said DBM directive, the Mandaue City Auditor issued
notices of disallowance to herein petitioners in excess of the amount authorized by LBC
55. Thus, petitioners filed with the Office of the City Auditor a protest. However, it was
treated as a motion for reconsideration and was endorsed to the Commission on Audit
(COA) Regional Office No. 7. In turn, the COA Regional Office referred the said motion
to their Head Office with recommendation that the same should be denied. Accordingly,
it was denied by the COA. Hence, petitioners filed the instant petition. They argued,
among others, that LBC 55 is void for infringing on the local autonomy of Mandaue City
by dictating a uniform amount that a local government unit can disburse as additional
allowances to judges stationed therein. cADSCT

The Court ruled in favor of the petitioner judges. Section 458, par. (a)(1)(xi), of RA 7160,
the law that supposedly serves as the legal basis of LBC 55, allows the grant of additional
allowances to judges "when the finances of the city government allow." The said
provision does not authorize setting a definite maximum limit to the additional
allowances granted to judges. Thus, this Court need not belabor the point that the
finances of a city government may allow the grant of additional allowances higher than
P1,000 if the revenues of the said city government exceed its annual expenditures. Setting
a uniform amount for the grant of additional allowances is an inappropriate way of
enforcing the criterion found in Section 458, par. (a)(l)(xi), of RA 7160. The DBM over-
stepped its power of supervision over local government units by imposing a prohibition
that did not correspond with the law it sought to implement. In other words, the
prohibitory nature of the circular had no legal basis.

SYLLABUS

1. POLITICAL LAW; LOCAL GOVERNMENT; AUTONOMY OF LOCAL

GOVERNMENT UNITS; SUBJECT TO THE POWER OF CONTROL BY
CONGRESS AND THE POWER OF SUPERVISION BY THE PRESIDENT. We
recognize that, although our Constitution guarantees autonomy to local government units,
the exercise of local autonomy remains subject to the power of control by Congress and
the power of supervision by the President. Section 4 of Article X of the 1987 Philippine
Constitution provides that: "Sec. 4. The President of the Philippines shall exercise general
supervision over local governments. . . . "
2. ID.; ID.; ID.; PRESIDENT CAN ONLY INTERFERE IN THE AFFAIRS AND
ACTIVITIES OF THE LOCAL GOVERNMENT UNIT IF HE FINDS THAT THE
LATTER HAS ACTED CONTRARY TO LAW. The President can only interfere in
the affairs and activities of a local government unit if he or she finds that the latter has
acted contrary to law. This is the scope of the President's supervisory powers over local
government units. Hence, the President or any of his or her alter egos cannot interfere in
local affairs as long as the concerned local government unit acts within the parameters of
the law and the Constitution. Any directive therefore by the President or any of his or her
alter egos seeking to alter the wisdom of a law-conforming judgment on local affairs of a
local government unit is a patent nullity because it violates the principle of local
autonomy and separation of powers of the executive and legislative departments in
governing municipal corporations.
3. ID.; ADMINISTRATIVE LAW; REPUBLIC ACT NO. 7160 (LOCAL
GOVERNMENT CODE OF 1991); DOES NOT SET A MAXIMUM LIMIT TO THE
ADDITIONAL ALLOWANCES GRANTED TO JUDGES. LBC 55 provides that the
additional monthly allowances to be given by a local government unit should not exceed
P1,000 in provinces and cities and P700 in municipalities. Section 458, par. (a)(1)(xi), of
RA 7160, the law that supposedly serves as the legal basis of LBC 55, allows the grant of
additional allowances to judges "when the finances of the city government allow." The
said provision does not authorize setting a definite maximum limit to the additional
allowances granted to judges. Thus, we need not belabor the point that the finances of a
city government may allow the grant of additional allowances higher than P1,000 if the
revenues of the said city government exceed its annual expenditures. Thus, to illustrate, a
city government with locally generated annual revenues of P40 million and expenditures
of P35 million can afford to grant additional allowances of more than P1,000 each to, say,
ten judges inasmuch as the finances of the city can afford it.
4. ID.; ID.; ID.; ID.; JUST BECAUSE CITY'S LOCALLY GENERATED REVENUES
WERE NOT ENOUGH TO COVER ITS EXPENDITURES DID NOT MEAN THAT
THE ADDITIONAL ALLOWANCES OF JUDGES WERE TAKEN FROM
INTERNAL REVENUE ALLOTMENT (IRA). Respondent COA failed to prove that
Mandaue City used the IRA to spend for the additional allowances of the judges. There
was no evidence submitted by COA showing the breakdown of the expenses of the city
government and the funds used for said expenses. All the COA presented were the
amounts expended, the locally generated revenues, the deficit, the surplus and the IRA
received each year. Aside from these items, no data or figures were presented to show
that Mandaue City deducted the subject allowances from the IRA. In other words, just
because Mandaue City's locally generated revenues were not enough to cover its
expenditures, this did not mean that the additional allowances of petitioner judges were
taken from the IRA and not from the city's own revenues.
5. ID.; ID.; ID.; ID.; DEPARTMENT OF BUDGET AND MANAGEMENT (DBM)
CAN NO LONGER QUESTION THE LEGALITY OF CITY'S APPROPRIATION
ORDINANCES FOR FAILURE TO CONDUCT A FORMAL REVIEW; CASE AT
BAR. [T]he DBM neither conducted a formal review nor ordered a disapproval of
Mandaue City's appropriation ordinances, in accordance with the procedure outlined by
Sections 326 and 327 of RA 7160[.] . . . Within 90 days from receipt of the copies of the
appropriation ordinance, the DBM should have taken positive action. Otherwise, such
ordinance was deemed to have been properly reviewed and deemed to have taken effect.
Inasmuch as, in the instant case, the DBM did not follow the appropriate procedure for
reviewing the subject ordinance of Mandaue City and allowed the 90-day period to lapse,
it can no longer question the legality of the provisions in the said ordinance granting
additional allowances to judges stationed in the said city.
6. ID.; ID.; DBM LOCAL BUDGET CIRCULAR NO. 55; PROHIBITORY NATURE
THEREOF HAD NO LEGAL BASIS. Setting a uniform amount for the grant of
additional allowances is an inappropriate way of enforcing the criterion found in Section
458, par. (a)(l)(xi), of RA 7160. The DBM over-stepped its power of supervision over
local government units by imposing a prohibition that did not correspond with the law it
sought to implement. In other words, the prohibitory nature of the circular had no legal
basis.
7. ID.; ID.; ID.; VOID ON ACCOUNT OF ITS LACK OF PUBLICATION. LBC 55
is void on account of its lack of publication, in violation of our ruling in Taada vs.
Tuvera where we held that: ". . . . Administrative rules and regulations must also be
published if their purpose is to enforce or implement existing law pursuant to a valid
delegation. Interpretative regulations and those merely internal in nature, that is,
regulating only the personnel of an administrative agency and the public, need not be
published. Neither is publication required of the so-called letters of instruction issued by
administrative superiors concerning the rules or guidelines to be followed by their
subordinates in the performance of their duties." Respondent COA claims that
publication is not required for LBC 55 inasmuch as it is merely an interpretative
regulation applicable to the personnel of an LGU. We disagree. In De Jesus vs.
Commission on Audit where we dealt with the same issue, this Court declared void, for
lack of publication, a DBM circular that disallowed payment of allowances and other
additional compensation to government officials and employees. STcADa

DECISION

CORONA, J : p

Before us is a petition for certiorari under Rule 64 to annul the decision 1 and resolution,
2 dated September 21, 1995 and May 28, 1996, respectively, of the respondent
Commission on Audit (COA) affirming the notices of the Mandaue City Auditor which
diminished the monthly additional allowances received by the petitioner judges of the
Regional Trial Court (RTC) and Municipal Trial Court (MTC) stationed in Mandaue
City.CHEIcS
The undisputed facts are as follows:
In 1986, the RTC and MTC judges of Mandaue City started receiving monthly
allowances of P1,260 each through the yearly appropriation ordinance enacted by the
Sangguniang Panlungsod of the said city. In 1991, Mandaue City increased the amount to
P1,500 for each judge.
On March 15, 1994, the Department of Budget and Management (DBM) issued the
disputed Local Budget Circular No. 55 (LBC 55) which provided that:

"xxx xxx xxx

2.3.2. In the light of the authority granted to the local government units under
the Local Government Code to provide for additional allowances and other
benefits to national government officials and employees assigned in their
locality, such additional allowances in the form of honorarium at rates not
exceeding P1,000.00 in provinces and cities and P700.00 in municipalities may
be granted subject to the following conditions:
a) That the grant is not mandatory on the part of the LGUs;
b) That all contractual and statutory obligations of the LGU including
the implementation of R.A. 6758 shall have been fully provided in the
budget;
c) That the budgetary requirements/limitations under Section 324 and
325 of R.A. 7160 should be satisfied and/or complied with; and
d) That the LGU has fully implemented the devolution of
functions/personnel in accordance with R.A. 7160." 3 (italics supplied)
xxx xxx xxx
The said circular likewise provided for its immediate effectivity without need of
publication:
"5.0 EFFECTIVITY
This Circular shall take effect immediately."
Acting on the DBM directive, the Mandaue City Auditor issued notices of disallowance
to herein petitioners, namely, Honorable RTC Judges Mercedes G. Dadole, Ulric R.
Caete, Agustin R. Vestil, Honorable MTC Judges Temistocles M. Boholst, Vicente C.
Fanilag and Wilfredo A. Dagatan, in excess of the amount authorized by LBC 55.
Beginning October, 1994, the additional monthly allowances of the petitioner judges
were reduced to P1,000 each. They were also asked to reimburse the amount they
received in excess of P1,000 from April to September, 1994.
The petitioner judges filed with the Office of the City Auditor a protest against the
notices of disallowance. But the City Auditor treated the protest as a motion for
reconsideration and indorsed the same to the COA Regional Office No. 7. In turn, the
COA Regional Office referred the motion to the head office with a recommendation that
the same be denied.
On September 21, 1995, respondent COA rendered a decision denying petitioners' motion
for reconsideration. The COA held that:
The issue to be resolved in the instant appeal is whether or not the City
Ordinance of Mandaue which provides a higher rate of allowances to the
appellant judges may prevail over that fixed by the DBM under Local Budget
Circular No. 55 dated March 15, 1994.
xxx xxx xxx
Applying the foregoing doctrine, appropriation ordinance of local government
units is subject to the organizational, budgetary and compensation policies of
budgetary authorities (COA 5th Ind., dated March 17, 1994 re: Province of
Antique; COA letter dated May 17, 1994 re: Request of Hon. Renato Leviste,
Cong. 1st Dist. Oriental Mindoro). In this regard, attention is invited to
Administrative Order No. 42 issued on March 3, 1993 by the President of the
Philippines clarifying the role of DBM in the compensation and classification of
local government positions under RA No. 7160 vis-a-vis the provisions of RA
No. 6758 in view of the abolition of the JCLGPA. Section 1 of said
Administrative Order provides that:
"Section 1. The Department of Budget and Management as the lead
administrator of RA No. 6758 shall, through its Compensation and
Position Classification Bureau, continue to have the following
responsibilities in connection with the implementation of the Local
Government Code of 1991:
a) Provide guidelines on the classification of local government
positions and on the specific rates of pay therefore;
b) Provide criteria and guidelines for the grant of all allowances
and additional forms of compensation to local
government employees; . . . ." (italics supplied)
To operationalize the aforecited presidential directive, DBM issued LBC No.
55, dated March 15, 1994, whose effectivity clause provides that:
xxx xxx xxx
"5.0 EFFECTIVITY
This Circular shall take effect immediately."
It is a well-settled rule that implementing rules and regulations promulgated by
administrative or executive officer in accordance with, and as authorized by
law, has the force and effect of law or partake the nature of a statute (Victorias
Milling Co., Inc., vs. Social Security Commission, 114 Phil. 555, cited in
Agpalo's Statutory Construction, 2nd Ed. P. 16; Justice Cruz's Phil. Political
 Law, 1984 Ed., p. 103; Espanol vs. Phil Veterans Administration, 137 SCRA
314; Antique Sawmills Inc. vs. Tayco, 17 SCRA 316).
xxx xxx xxx
There being no statutory basis to grant additional allowance to judges in excess
of P1,000.00 chargeable against the local government units where they are
stationed, this Commission finds no substantial grounds or cogent reason to
disturb the decision of the City Auditor, Mandaue City, disallowing in audit the
allowances in question. Accordingly, the above-captioned appeal of the MTC
and RTC Judges of Mandaue City, insofar as the same is not covered by
Circular Letter No. 91-7, is hereby dismissed for lack of merit.
xxx xxx xxx 4
On November 27, 1995, Executive Judge Mercedes Gozo-Dadole, for and in behalf of the
petitioner judges, filed a motion for reconsideration of the decision of the COA. In a
resolution dated May 28, 1996, the COA denied the motion.
Hence, this petition for certiorari by the petitioner judges, submitting the following
questions for resolution:
I
HAS THE CITY OF MANDAUE STATUTORY AND CONSTITUTIONAL
BASIS TO PROVIDE ADDITIONAL ALLOWANCES AND OTHER
BENEFITS TO JUDGES STATIONED IN AND ASSIGNED TO THE CITY?
II
CAN AN ADMINISTRATIVE CIRCULAR OR GUIDELINE SUCH AS
LOCAL BUDGET CIRCULAR NO. 55 RENDER INOPERATIVE THE
POWER OF THE LEGISLATIVE BODY OF A CITY BY SETTING A LIMIT
TO THE EXTENT OF THE EXERCISE OF SUCH POWER?
III
HAS THE COMMISSION ON AUDIT CORRECTLY INTERPRETED
LOCAL BUDGET CIRCULAR NO. 55 TO INCLUDE MEMBERS OF THE
JUDICIARY IN FIXING THE CEILING OF ADDITIONAL ALLOWANCES
AND BENEFITS TO BE PROVIDED TO JUDGES STATIONED IN AND
ASSIGNED TO MANDAUE CITY BY THE CITY GOVERNMENT AT
P1,000.00 PER MONTH NOTWITHSTANDING THAT THEY HAVE BEEN
RECEIVING ALLOWANCES OF P1,500.00 MONTHLY FOR THE PAST
FIVE YEARS?
IV
IS LOCAL BUDGET CIRCULAR NO. 55 DATED MARCH 15, 1994
ISSUED BY THE DEPARTMENT OF BUDGET AND MANAGEMENT
VALID AND ENFORCEABLE CONSIDERING THAT IT WAS NOT DULY
PUBLISHED IN ACCORDANCE WITH LAW? 5
Petitioner judges argue that LBC 55 is void for infringing on the local autonomy of
Mandaue City by dictating a uniform amount that a local government unit can disburse as
additional allowances to judges stationed therein. They maintain that said circular is not
supported by any law and therefore goes beyond the supervisory powers of the President.
They further allege that said circular is void for lack of publication.
On the other hand, the yearly appropriation ordinance providing for additional allowances
to judges is allowed by Section 458, par. (a)(1)[xi], of RA 7160, otherwise known as the
Local Government Code of 1991, which provides that:
Sec. 458. Powers, Duties, Functions and Compensation. (a) The
sangguniang panlungsod, as the legislative body of the city, shall enact
ordinances, approve resolutions and appropriate funds for the general welfare of
the city and its inhabitants pursuant to Section 16 of this Code and in the proper
exercise of the corporate powers of the city as provided for under Section 22 of
this Code, and shall:
(1) Approve ordinances and pass resolutions necessary for an efficient and
effective city government, and in this connection, shall:
xxx xxx xxx
(xi) When the finances of the city government allow, provide for
additional allowances and other benefits to judges, prosecutors, public
elementary and high school teachers, and other national government
officials stationed in or assigned to the city; (italics supplied)
Instead of filing a comment on behalf of respondent COA, the Solicitor General filed a
manifestation supporting the position of the petitioner judges. The Solicitor General
argues that (1) DBM only enjoys the power to review and determine whether the
disbursements of funds were made in accordance with the ordinance passed by a local
government unit while (2) the COA has no more than auditorial visitation powers over
the local government units pursuant to Section 348 of RA 7160 which provides for the
power to inspect at any time the financial accounts of local government units.
Moreover, the Solicitor General opines that "the DBM and the respondent are only
authorized under RA 7160 to promulgate a Budget Operations Manual for local
government units, to improve and systematize methods, techniques and procedures
employed in budget preparation, authorization, execution and accountability" pursuant to
Section 354 of RA 7160. The Solicitor General points out that LBC 55 was not exercised
under any of the aforementioned provisions.
Respondent COA, on the other hand, insists that the constitutional and statutory authority
of a city government to provide allowances to judges stationed therein is not absolute.
Congress may set limitations on the exercise of autonomy. It is for the President, through
the DBM, to check whether these legislative limitations are being followed by the local
government units.
One such law imposing a limitation on a local government unit's autonomy is Section
458, par. (a) (1) [xi], of RA 7160, which authorizes the disbursement of additional
allowances and other benefits to judges subject to the condition that the finances of the
city government should allow the same. Thus, DBM is merely enforcing the condition of
the law when it sets a uniform maximum amount for the additional allowances that a city
government can release to judges stationed therein.
Assuming arguendo that LBC 55 is void, respondent COA maintains that the provisions
of the yearly approved ordinance granting additional allowances to judges are still
prohibited by the appropriation laws passed by Congress every year. COA argues that
Mandaue City gets the funds for the said additional allowances of judges from the
Internal Revenue Allotment (IRA). But the General Appropriations Acts of 1994 and
1995 do not mention the disbursement of additional allowances to judges as one of the
allowable uses of the IRA. Hence, the provisions of said ordinance granting additional
allowances, taken from the IRA, to herein petitioner judges are void for being contrary to
law.

To resolve the instant petition, there are two issues that we must address: (1) whether
LBC 55 of the DBM is void foregoing beyond the supervisory powers of the President
and for not having been published and (2) whether the yearly appropriation ordinance
enacted by the City of Mandaue that provides for additional allowances to judges
contravenes the annual appropriation laws enacted by Congress.
We rule in favor of the petitioner judges.
On the first issue, we declare LBC 55 to be null and void.
We recognize that, although our Constitution 6 guarantees autonomy to local government
units, the exercise of local autonomy remains subject to the power of control by Congress
and the power of supervision by the President. Section 4 of Article X of the 1987
Philippine Constitution provides that:
Sec. 4. The President of the Philippines shall exercise general supervision over
local governments. . . .
In Pimentel vs. Aguirre, 7 we defined the supervisory power of the President and
distinguished it from the power of control exercised by Congress. Thus:
This provision (Section 4 of Article X of the 1987 Philippine Constitution) has
been interpreted to exclude the power of control. In Mondano v. Silvosa, the i[5]

Court contrasted the President's power of supervision over local government

officials with that of his power of control over executive officials of the national
government. It was emphasized that the two terms supervision and control
differed in meaning and extent. The Court distinguished them as follows:
". . . In administrative law, supervision means overseeing or the power or
authority of an officer to see that subordinate officers perform their duties. If the
 latter fail or neglect to fulfill them, the former may take such action or step as
prescribed by law to make them perform their duties. Control, on the other
hand, means the power of an officer to alter or modify or nullify or set aside
what a subordinate officer ha[s] done in the performance of his duties and to
substitute the judgment of the former for that of the latter." ii[6]

In Taule v. Santos, we further stated that the Chief Executive wielded no

iii[7]

more authority than that of checking whether local governments or their

officials were performing their duties as provided by the fundamental law and
by statutes. He cannot interfere with local governments, so long as they act
within the scope of their authority. "Supervisory power, when contrasted with
control, is the power of mere oversight over an inferior body; it does not include
any restraining authority over such body," we said.
iv[8]

In a more recent case, Drilon v. Lim, the difference between control and
v[9]

supervision was further delineated. Officers in control lay down the rules in the
performance or accomplishment of act. If these rules are not followed, they
may, in their discretion, order the act undone or redone by their subordinates or
even decide to do it themselves. On the other hand, supervision does not cover
such authority. Supervising officials merely see to it that the rules are followed,
but they themselves do not lay down such rules, nor do they have the discretion
to modify or replace them. If the rules are not observed, they may order the
work done or redone, but only to conform to such rules. They may not prescribe
their own manner of execution of the act. They have no discretion on this matter
except to see to it that the rules are followed.
Under our present system of government, executive power is vested in the
President. The members of the Cabinet and other executive officials are
vi[10]

merely alter egos. As such, they are subject to the power of control of the
President, at whose will and behest they can be removed from office; or their
actions and decisions changed, suspended or reversed. In contrast, the heads
vii[11]

of political subdivisions are elected by the people. Their sovereign powers

emanate from the electorate, to whom they are directly accountable. By
constitutional fiat, they are subject to the President's supervision only, not
control, so long as their acts are exercised within the sphere of their legitimate
powers. By the same token, the President may not withhold or alter any
authority or power given them by the Constitution and the law.
Clearly then, the President can only interfere in the affairs and activities of a local
government unit if he or she finds that the latter has acted contrary to law. This is the
scope of the President's supervisory powers over local government units. Hence, the
President or any of his or her alter egos cannot interfere in local affairs as long as the
concerned local government unit acts within the parameters of the law and the
Constitution. Any directive therefore by the President or any of his or her alter egos
seeking to alter the wisdom of a law-conforming judgment on local affairs of a local
government unit is a patent nullity because it violates the principle of local autonomy and
separation of powers of the executive and legislative departments in governing municipal
corporations.
Does LBC 55 go beyond the law it seeks to implement? Yes.
LBC 55 provides that the additional monthly allowances to be given by a local
government unit should not exceed P1,000 in provinces and cities and P700 in
municipalities. Section 458, par. (a)(1)(xi), of RA 7160, the law that supposedly serves as
the legal basis of LBC 55, allows the grant of additional allowances "when the finances
of the city government allow." The said provision does not authorize setting a definite
maximum limit to the additional allowances granted to judges. Thus, we need not belabor
the point that the finances of a city government may allow the grant of additional
allowances higher than P1,000 if the revenues of the said city government exceed its
annual expenditures. Thus, to illustrate, a city government with locally generated annual
revenues of P40 million and expenditures of P35 million can afford to grant allowances
of more than P1,000 each to, say, ten judges inasmuch as the finances of the city can
afford it.
Setting a uniform amount for the grant of additional allowances is an inappropriate way
of enforcing the criterion found in Section 458, par. (a)(1)(xi), of RA 7160. The DBM
over-stepped its power of supervision over local government units by imposing a
prohibition that did not correspond with the law it sought to implement. In other words,
the prohibitory nature of the circular had no legal basis.
Furthermore, LBC 55 is void on account of its lack of publication, in violation of our
ruling in Taada vs. Tuvera 8 where we held that:
. . . . Administrative rules and regulations must also be published if their
purpose is to enforce or implement existing law pursuant to a valid delegation.
Interpretative regulations and those merely internal in nature, that is, regulating
only the personnel of an administrative agency and the public, need not be
published. Neither is publication required of the so-called letters of instruction
issued by administrative superiors concerning the rules or guidelines to be
followed by their subordinates in the performance of their duties.
Respondent COA claims that publication is not required for LBC 55, inasmuch as it is
merely an interpretative regulation applicable to the personnel of an LGU. We disagree.
In De Jesus vs. Commission on Audit 9 where we dealt with the same issue, this Court
declared void, for lack of publication, a DBM circular that disallowed payment of
allowances and other additional compensation to government officials and employees. In
refuting respondent COA's argument that said circular was merely an internal regulation,
we ruled that:
On the need for publication of subject DBM-CCC No. 10, we rule in the
affirmative. Following the doctrine enunciated in Taada v. Tuvera, publication
in the Official Gazette or in a newspaper of general circulation in the
Philippines is required since DBM-CCC No. 10 is in the nature of an
 administrative circular the purpose of which is to enforce or implement an
existing law. Stated differently, to be effective and enforceable, DBM-CCC No.
10 must go through the requisite publication in the Official Gazette or in a
newspaper of general circulation in the Philippines.
In the present case under scrutiny, it is decisively clear that DBM-CCC No. 10,
which completely disallows payment of allowances and other additional
compensation to government officials and employees, starting November 1,
1989, is not a mere interpretative or internal regulation. It is something more
than that. And why not, when it tends to deprive government workers of their
allowance and additional compensation sorely needed to keep body and soul
together. At the very least, before the said circular under attack may be
permitted to substantially reduce their income, the government officials and
employees concerned should be apprised and alerted by the publication of
subject circular in the Official Gazette or in a newspaper of general circulation
in the Philippines to the end that they be given amplest opportunity to voice
out whatever opposition they may have, and to ventilate their stance on the
matter. This approach is more in keeping with democratic precepts and
rudiments of fairness and transparency. (italics supplied)
In Philippine International Trading Corporation vs. Commission on Audit, 10 we again
declared the same circular void, for lack of publication, despite the fact that it was re-
issued and then submitted for publication. Emphasizing the importance of publication to
the effectivity of a regulation, we therein held that:
It has come to our knowledge that DBM-CCC No. 10 has been re-issued in its
entirety and submitted for publication in the Official Gazette per letter to the
National Printing Office dated March 9, 1999. Would the subsequent
publication thereof cure the defect and retroact to the time that the above-
mentioned items were disallowed in audit?

The answer is in the negative, precisely for the reason that publication is
required as a condition precedent to the effectivity of a law to inform the public
of the contents of the law or rules and regulations before their rights and
interests are affected by the same. From the time the COA disallowed the
expenses in audit up to the filing of herein petition the subject circular remained
in legal limbo due to its non-publication. As was stated in Taada v. Tuvera,
"prior publication of laws before they become effective cannot be dispensed
with, for the reason that it would deny the public knowledge of the laws that are
supposed to govern it." 11
We now resolve the second issue of whether the yearly appropriation ordinance enacted
by Mandaue City providing for fixed allowances for judges contravenes any law and
should therefore be struck down as null and void.
According to respondent COA, even if LBC 55 were void, the ordinances enacted by
Mandaue City granting additional allowances to the petitioner judges would "still (be)
bereft of legal basis for want of a lawful source of funds considering that the IRA cannot
be used for such purposes." Respondent COA showed that Mandaue City's funds
consisted of locally generated revenues and the IRA. From 1989 to 1995, Mandaue City's
yearly expenditures exceeded its locally generated revenues, thus resulting in a deficit.
During all those years, it was the IRA that enabled Mandaue City to incur a surplus.
Respondent avers that Mandaue City used its IRA to pay for said additional allowances
and this violated paragraph 2 of the Special Provisions page 1060, of RA 7845 (The
General Appropriations Act of 1995) 12 and paragraph 3 of the Special Provision, page
1225, of RA 7663 (The General Appropriations Act of 1994) 13 which specifically
identified the objects of expenditure of the IRA. Nowhere in said provisions of the two
budgetary laws does it say that the IRA can be used for additional allowances of judges.
Respondent COA thus argues that the provisions in the ordinance providing for such
disbursement are against the law, considering that the grant of the subject allowances is
not within the specified use allowed by the aforesaid yearly appropriations acts.
We disagree.
Respondent COA failed to prove that Mandaue City used the IRA to spend for the
additional allowances of the judges. There was no evidence submitted by COA showing
the breakdown of the expenses of the city government and the funds used for said
expenses. All the COA presented were the amounts expended, the locally generated
revenues, the deficit, the surplus and the IRA received each year. Aside from these items,
no data or figures were presented to show that Mandaue City deducted the subject
allowances from the IRA. In other words, just because Mandaue City's locally generated
revenues were not enough to cover its expenditures, this did not mean that the additional
allowances of petitioner judges were taken from the IRA and not from the city's own
revenues.
Moreover, the DBM neither conducted a formal review nor ordered a disapproval of
Mandaue City's appropriation ordinances, in accordance with the procedure outlined by
Sections 326 and 327 of RA 7160 which provide that:
Section 326. Review of Appropriation Ordinances of Provinces, Highly
Urbanized Cities, Independent Component Cities, and Municipalities within the
Metropolitan Manila Area. The Department of Budget and Management
shall review ordinances authorizing the annual or supplemental appropriations
of provinces, highly-urbanized cities, independent component cities, and
municipalities within the Metropolitan Manila Area in accordance with the
immediately succeeding Section.
Section 327. Review of Appropriation Ordinances of Component Cities and
Municipalities. The sangguniang panlalawigan shall review the ordinance
authorizing annual or supplemental appropriations of component cities and
municipalities in the same manner and within the same period prescribed for the
review of other ordinances.
 If within ninety (90) days from receipt of copies of such ordinance, the
sangguniang panlalawigan takes no action thereon, the same shall be deemed
to have been reviewed in accordance with law and shall continue to be in full
force and effect. (italics supplied)
Within 90 days from receipt of the copies of the appropriation ordinance, the DBM
should have taken positive action. Otherwise, such ordinance was deemed to have been
properly reviewed and deemed to have taken effect. Inasmuch as, in the instant case, the
DBM did not follow the appropriate procedure for reviewing the subject ordinance of
Mandaue City and allowed the 90-day period to lapse, it can no longer question the
legality of the provisions in the said ordinance granting additional allowances to judges
stationed in the said city.
WHEREFORE, the petition is hereby GRANTED, and the assailed decision and
resolution, dated September 21, 1995 and May 28, 1996, respectively, of the Commission
on Audit are hereby set aside. DcAEIS

No costs.
SO ORDERED.
(Dadole v. Commission on Audit, G.R. No. 125350, [December 3, 2002], 441 PHIL 532-
|||

551)
[G.R. No. 188832. April 23, 2014.]

VIVENCIO B. VILLAGRACIA, petitioner, vs. FIFTH (5th) SHARI'A

DISTRICT COURT and ROLDAN E. MALA, represented by his father
Hadji Kalam T. Mala, respondents.

DECISION

LEONEN, J : p

Shari'a District Courts have no jurisdiction over real actions where one of the parties is not
a Muslim.
This is a petition for certiorari with application for issuance of temporary restraining order
and/or preliminary injunction to set aside the Fifth (5th) Shari'a District Court's decision 1
dated June 11, 2008 and order 2 dated May 29, 2009 in SDC Special Proceedings Case No.
07-200.
The facts as established from the pleadings of the parties are as follows:
On February 15, 1996, Roldan E. Mala purchased a 300-square-meter parcel of land
located in Poblacion, Parang, Maguindanao, now Shariff Kabunsuan, from one Ceres
Caete. On March 3, 1996, Transfer Certificate of Title No. T-15633 covering the parcel
of land was issued in Roldan's name. 3 At the time of the purchase, Vivencio B. Villagracia
occupied the parcel of land. 4
By 2002, Vivencio secured a Katibayan ng Orihinal na Titulo Blg. P-60192 issued by the
Land Registration Authority allegedly covering the same parcel of land. 5
On October 30, 2006, Roldan had the parcel of land surveyed. In a report, Geodetic
Engineer Dennis P. Dacup found that Vivencio occupied the parcel of land covered by
Roldan's certificate of title. 6
To settle his conflicting claim with Vivencio, Roldan initiated barangay conciliation
proceedings before the Office of the Barangay Chairman of Poblacion II, Parang, Shariff
Kabunsuan. Failing to settle with Vivencio at the barangay level, Roldan filed an action to
recover the possession of the parcel of land with respondent Fifth Shari'a District Court. 7
In his petition, Roldan alleged that he is a Filipino Muslim; that he is the registered owner
of the lot covered by Transfer Certificate of Title No. 15633; and that Vivencio occupied
his property, depriving him of the right to use, possess, and enjoy it. He prayed that
respondent Fifth Shari'a District Court order Vivencio to vacate his property. 8 cAHDES

Respondent court took cognizance of the case and caused service of summons on Vivencio.
However, despite service of summons, Vivencio failed to file his answer. Thus, Roldan
moved that he be allowed to present evidence ex parte, which motion respondent Fifth
Shari'a District Court granted in its order 9 dated January 30, 2008. 10
In its decision 11 dated June 11, 2008, respondent Fifth Shari'a District Court ruled that
Roldan, as registered owner, had the better right to possess the parcel of land. It ordered
Vivencio to vacate the property, turn it over to Roldan, and pay P10,000.00 as moderate
damages and P5,000.00 as attorney's fees.
On December 15, 2008, respondent Fifth Shari'a Distict Court issued the notice of writ of
execution 12 to Vivencio, giving him 30 days from receipt of the notice to comply with the
decision. He received a copy of the notice on December 16, 2008. 13
On January 13, 2009, Vivencio filed a petition for relief from judgment with prayer for
issuance of writ of preliminary injunction. 14 In his petition for relief from judgment,
Vivencio cited Article 155, paragraph (2) of the Code of Muslim Personal Laws of the
Philippines 15 and argued that Shari'a District Courts may only hear civil actions and
proceedings if both parties are Muslims. Considering that he is a Christian, Vivencio
argued that respondent Fifth Shari'a District Court had no jurisdiction to take cognizance
of Roldan's action for recovery of possession of a parcel of land. He prayed that respondent
Fifth Shari'a District Court set aside the decision dated June 11, 2008 on the ground of
mistake. 16
Respondent Fifth Shari'a District Court ruled that Vivencio "intentionally [waived] his
right to defend himself." 17 It noted that he was duly served with summons and had notice
of the following: Roldan's motion to present evidence ex parte, respondent Fifth Shari'a
District Court's decision dated June 11, 2008, and the writ of execution. However, Vivencio
only went to court "when he lost his right to assail the decision via certiorari." 18
According to respondent Fifth Shari'a District Court, Vivencio cited the wrong provision
of law. Article 155, paragraph (2) of the Code of Muslim Personal Laws of the Philippines
refers to the jurisdiction of Shari'a Circuit Courts, not of Shari'a District Courts. 19 It ruled
that it had jurisdiction over Roldan's action for recovery of possession. Regardless of
Vivencio being a non-Muslim, his rights were not prejudiced since respondent Fifth Shari'a
District Court decided the case applying the provisions of the Civil Code of the Philippines.
20

Thus, in its order 21 dated May 29, 2009, respondent Fifth Shari'a District Court denied
Vivencio's petition for relief from judgment for lack of merit. It reiterated its order directing
the issuance of a writ of execution of the decision dated June 11, 2008.
Vivencio received a copy of the order denying his petition for relief from judgment on June
17, 2009. 22
On August 6, 2009, Vivencio filed the petition for certiorari with prayer for issuance of
temporary restraining order with this court. 23
In his petition for certiorari, Vivencio argued that respondent Fifth Shari'a District Court
acted without jurisdiction in rendering the decision dated June 11, 2008. Under Article 143,
paragraph (2) (b) of the Code of Muslim Personal Laws of the Philippines, 24 Shari'a
District Courts may only take cognizance of real actions where the parties involved are
Muslims. Reiterating that he is not a Muslim, Vivencio argued that respondent Fifth Shari'a
District Court had no jurisdiction over the subject matter of Roldan's action. Thus, all the
proceedings before respondent Fifth Shari'a District Court, including the decision dated
June 11, 2008, are void. 25
In the resolution 26 dated August 19, 2009, this court ordered Roldan to comment on
Vivencio's petition for certiorari. This court subsequently issued a temporary restraining
order enjoining the implementation of the writ of execution against Vivencio. 27 EACIcH

On September 21, 2011, Roldan filed his comment 28 on the petition for certiorari. He
allegedly filed the action for recovery of possession with the Shari'a District Court where
"a more speedy disposition of the case would be obtained": 29
1. That SDC Spl. Case No. 07-200 (Quieting of Title. . .) was duly filed with
the Fifth (5th) Shariah District Court, Cotabato City at the option of herein
private respondent (petitioner below) who believed that a more speedy
disposition of the case would be obtained when the action is filed with the
Shariah District Court than in the Regional Trial Courts considering the
voluminous pending cases at the Regional Trial Courts[.] 30
On Vivencio's claim that respondent Fifth Shari'a District Court had no jurisdiction to
decide the action for recovery of possession because he is a non-Muslim, Roldan argued
that no provision in the Code of Muslim Personal Laws of the Philippines prohibited non-
Muslims from participating in Shari'a court proceedings, especially in actions where the
Shari'a court applied the provisions of the Civil Code of the Philippines. Thus, respondent
Fifth Shari'a District Court validly took cognizance of his action:
2. That the Shariah District Court is not a court exclusively for muslim litigants.
No provision in the Code on Muslim Personal Laws which expressly
prohibits non-muslim to participate in the proceedings in the Shariah
Courts, especially in actions which applies the civil code and not the Code
on Muslim Personal Laws;
3. The Shariah District Courts has jurisdiction over action for quieting of title
filed by a muslim litigant since the nature of the action involved mere
removal of cloud of doubt upon one's Certificate of Title. The laws applied
in this case is the Civil Code and other related laws, and not the Code on
Muslim Personal Laws[.] 31
Since respondent Fifth Shari'a District Court had jurisdiction to decide the action for
recovery of possession, Roldan argued that the proceedings before it were valid.
Respondent Fifth Shari'a District Court acquired jurisdiction over the person of Vivencio
upon service on him of summons. When Vivencio failed to file his answer, he "effectively
waived his right to participate in the proceedings [before the Fifth Shari'a District Court]"
32 and he cannot argue that his rights were prejudiced:

4. That it is not disputed that herein petitioner (respondent below) was properly
served with summons, notices and other court processes when the SDC
Spl. Case No. 07-200 was filed and heard in the Fifth (5th) Shariah
District Court, Cotabato City, but petitioner (respondent below)
intentionally or without known reason, ignore the proceedings;
5. That the main issue in the instant action for certiorari is whether or not herein
petitioner (respondent below) has effectively waived his right to
participate in the proceedings below and had lost his right to appeal via
Certiorari; and the issue on whether or not the Fifth (5th) Shariah District
Court has jurisdiction over an action where one of the parties is a non-
muslim;
6. That the Fifth (5th) Shariah District Court, Cotabato City acquired
jurisdiction over the case and that the same Court had correctly ruled that
herein petitioner (respondent) intentionally waived his right to defend
himself including his right to appeal via certiorari;
7. That it is humbly submitted that when the Shariah District Court took
cognizance of an action under its concurrent jurisdiction with the
Regional Trial Court, the law rules applied is not the Code on Muslim
Personal Laws but the Civil Code of the Philippines and the Revised Rules
of Procedure, hence the same would not prejudice the right of herein
petitioner (respondent below)[.] 33 AaSIET
In the resolution dated November 21, 2011, this court ordered Vivencio to reply to Roldan's
comment. On February 3, 2012, Vivencio filed his manifestation, 34 stating that he would
no longer file a reply to the comment as he had "exhaustively discussed the issue presented
for resolution in [his petition for certiorari]." 35
The principal issue for our resolution is whether a Shari'a District Court has jurisdiction
over a real action where one of the parties is not a Muslim.
We also resolve the following issues:
1. Whether a Shari'a District Court may validly hear, try, and decide a
real action where one of the parties is a non-Muslim if the District
Court decides the action applying the provisions of the Civil Code
of the Philippines; and
2. Whether a Shari'a District Court may validly hear, try, and decide a
real action filed by a Muslim against a non-Muslim if the non-
Muslim defendant was served with summons.
We rule for petitioner Vivencio.
I
Respondent Fifth Shari'a District
Court had no jurisdiction to hear, try,
and decide Roldan's action for
recovery of possession
Jurisdiction over the subject matter is "the power to hear and determine cases of the general
class to which the proceedings in question belong." 36 This power is conferred by law, 37
which may either be the Constitution or a statute. Since subject matter jurisdiction is a
matter of law, parties cannot choose, consent to, or agree as to what court or tribunal should
decide their disputes. 38 If a court hears, tries, and decides an action in which it has no
jurisdiction, all its proceedings, including the judgment rendered, are void. 39
To determine whether a court has jurisdiction over the subject matter of the action, the
material allegations of the complaint and the character of the relief sought are examined.
40

The law conferring the jurisdiction of Shari'a District Courts is the Code of the Muslim
Personal Laws of the Philippines. Under Article 143 of the Muslim Code, Shari'a District
Courts have concurrent original jurisdiction with "existing civil courts" over real actions
not arising from customary contracts 41 wherein the parties involved are Muslims:
ART. 143. Original jurisdiction. . . .
(2) Concurrently with existing civil courts, the Shari'a District Court shall have
original jurisdiction over:
xxx xxx xxx
 (b) All other personal and real actions not mentioned in paragraph 1(d)
42 wherein the parties involved are Muslims except those for forcible
entry and unlawful detainer, which shall fall under the exclusive
original jurisdiction of the Municipal Circuit Court; and
xxx xxx xxx
When ownership is acquired over a particular property, the owner has the right to possess
and enjoy it. 43 If the owner is dispossessed of his or her property, he or she has a right of
action to recover its possession from the dispossessor. 44 When the property involved is
real, 45 such as land, the action to recover it is a real action; 46 otherwise, the action is a
personal action. 47 In such actions, the parties involved must be Muslims for Shari'a District
Courts to validly take cognizance of them.
In this case, the allegations in Roldan's petition for recovery of possession did not state that
Vivencio is a Muslim. When Vivencio stated in his petition for relief from judgment that
he is not a Muslim, Roldan did not dispute this claim.
When it became apparent that Vivencio is not a Muslim, respondent Fifth Shari'a District
Court should have motu proprio dismissed the case. Under Rule 9, Section 1 of the Rules
of Court,if it appears that the court has no jurisdiction over the subject matter of the action
based on the pleadings or the evidence on record, the court shall dismiss the claim: cHCaIE

Section 1. Defenses and objections not pleaded. Defenses and objections not
pleaded either in a motion to dismiss or in the answer are deemed waived.
However, when it appears from the pleadings or the evidence on record that the
court has no jurisdiction over the subject matter, that there is another action
pending between the same parties for the same cause, or that the action is barred
by a prior judgment or by statute of limitations, the court shall dismiss the claim.
Respondent Fifth Shari'a District Court had no authority under the law to decide Roldan's
action because not all of the parties involved in the action are Muslims. Thus, it had no
jurisdiction over Roldan's action for recovery of possession. All its proceedings in SDC
Special Proceedings Case No. 07-200 are void.
Roldan chose to file his action with the Shari'a District Court, instead of filing the action
with the regular courts, to obtain "a more speedy disposition of the case." 48 This would
have been a valid argument had all the parties involved in this case been Muslims. Under
Article 143 of the Muslim Code, the jurisdiction of Shari'a District Courts over real actions
not arising from customary contracts is concurrent with that of existing civil courts.
However, this concurrent jurisdiction over real actions "is applicable solely when both
parties are Muslims" 49 as this court ruled in Tomawis v. Hon. Balindong. 50 When one of
the parties is not a Muslim, the action must be filed before the regular courts.
The application of the provisions of the Civil Code of the Philippines by respondent Fifth
Shari'a District Court does not validate the proceedings before the court. Under Article 175
of the Muslim Code, customary contracts are construed in accordance with Muslim law. 51
Hence, Shari'a District Courts apply Muslim law when resolving real actions arising from
customary contracts.
In real actions not arising from contracts customary to Muslims, there is no reason for
Shari'a District Courts to apply Muslim law. In such real actions, Shari'a District Courts
will necessarily apply the laws of general application, which in this case is the Civil Code
of the Philippines, regardless of the court taking cognizance of the action. This is the reason
why the original jurisdiction of Shari'a District Courts over real actions not arising from
customary contracts is concurrent with that of regular courts.
However, as discussed, this concurrent jurisdiction arises only if the parties involved are
Muslims. Considering that Vivencio is not a Muslim, respondent Fifth Shari'a District
Court had no jurisdiction over Roldan's action for recovery of possession of real property.
The proceedings before it are void, regardless of the fact that it applied the provisions of
the Civil Code of the Philippines in resolving the action.
True, no provision in the Code of Muslim Personal Laws of the Philippines expressly
prohibits non-Muslims from participating in Shari'a court proceedings. In fact, there are
instances when provisions in the Muslim Code apply to non-Muslims. Under Article 13 of
the Muslim Code, 52 provisions of the Code on marriage and divorce apply to the female
party in a marriage solemnized according to Muslim law, even if the female is non-Muslim.
53 Under Article 93, paragraph (c) of the Muslim Code, 54 a person of a different religion
is disqualified from inheriting from a Muslim decedent. 55 However, by operation of law
and regardless of Muslim law to the contrary, the decedent's parent or spouse who is a non-
Muslim "shall be entitled to one-third of what he or she would have received without such
disqualification." 56 In these instances, non-Muslims may participate in Shari'a court
proceedings. 57
Nonetheless, this case does not involve any of the previously cited instances. This case
involves an action for recovery of possession of real property. As a matter of law, Shari'a
District Courts may only take cognizance of a real action "wherein the parties involved are
Muslims." 58 Considering that one of the parties involved in this case is not a Muslim,
respondent Fifth Shari'a District Court had no jurisdiction to hear, try, and decide the action
for recovery of possession of real property. The judgment against Vivencio is void for
respondent Fifth Shari'a District Court's lack of jurisdiction over the subject matter of the
action.
That Vivencio raised the issue of lack of jurisdiction over the subject matter only after
respondent Fifth Shari'a District Court had rendered judgment is immaterial. A party may
assail the jurisdiction of a court or tribunal over a subject matter at any stage of the
proceedings, even on appeal. 59 The reason is that "jurisdiction is conferred by law, and
lack of it affects the very authority of the court to take cognizance of and to render judgment
on the action." 60
In Figueroa v. People of the Philippines, 61 Venancio Figueroa was charged with reckless
imprudence resulting in homicide before the Regional Trial Court of Bulacan. The trial
court convicted Figueroa as charged. On appeal with the Court of Appeals, Figueroa raised
for the first time the issue of jurisdiction of the Regional Trial Court to decide the case.
Ruling that the Regional Trial Court had no jurisdiction over the crime charged, this court
dismissed the criminal case despite the fact that Figueroa objected to the trial court's
jurisdiction only on appeal.
In Metromedia Times Corporation v. Pastorin, 62 Johnny Pastorin filed a complaint for
constructive dismissal against Metromedia Times Corporation. Metromedia Times
Corporation actively participated in the proceedings before the Labor Arbiter. When the
Labor Arbiter ruled against Metromedia Times, it appealed to the National Labor Relations
Commission, arguing for the first time that the Labor Arbiter had no jurisdiction over the
complaint. According to Metromedia Times, the case involved a grievance issue "properly
cognizable by the voluntary arbitrator." 63 This court set aside the decision of the Labor
Arbiter on the ground of lack of jurisdiction over the subject matter despite the fact that the
issue of jurisdiction was raised only on appeal.
There are exceptional circumstances when a party may be barred from assailing the
jurisdiction of the court to decide a case. In the 1968 case of Tijam v. Sibonghanoy, 64 the
Spouses Tijam sued the Spouses Sibonghanoy on July 19, 1948 before the Court of First
Instance of Cebu to recover P1,908.00. At that time, the court with exclusive original
jurisdiction to hear civil actions in which the amount demanded does not exceed P2,000.00
was the court of justices of the peace and municipal courts in chartered cities under Section
88 of the Judiciary Act of 1948.
As prayed for by the Spouses Tijam in their complaint, the Court of First Instance issued a
writ of attachment against the Spouses Sibonghanoy. However, the latter filed a counter-
bond issued by Manila Surety and Fidelity Co., Inc. Thus, the Court of First Instance
dissolved the writ of attachment.
After trial, the Court of First Instance decided in favor of the Spouses Tijam. When the
writ of execution returned unsatisfied, the Spouses Tijam moved for the issuance of a writ
of execution against Manila Surety and Fidelity Co., Inc.'s bond. The Court of First
Instance granted the motion. Manila Surety and Fidelity Co., Inc. moved to quash the writ
of execution, which motion the Court of First Instance denied. Thus, the surety company
appealed to the Court of Appeals. TAECaD

The Court of Appeals sustained the Court of First Instance's decision. Five days after
receiving the Court of Appeals' decision, Manila Surety and Fidelity Co., Inc. filed a
motion to dismiss, arguing for the first time that the Court of First Instance had no
jurisdiction over the subject matter of the case. The Court of Appeals forwarded the case
to this court for resolution.
This court ruled that the surety company could no longer assail the jurisdiction of the Court
of First Instance on the ground of estoppel by laches. Parties may be barred from assailing
the jurisdiction of the court over the subject matter of the action if it took them an
unreasonable and unexplained length of time to object to the court's jurisdiction. 65 This is
to discourage the deliberate practice of parties in invoking the jurisdiction of a court to seek
affirmative relief, only to repudiate the court's jurisdiction after failing to obtain the relief
sought. 66 In such cases, the court's lack of jurisdiction over the subject matter is overlooked
in favor of the public policy of discouraging such inequitable and unfair conduct. 67
In Tijam, it took Manila Surety and Fidelity Co., Inc. 15 years before assailing the
jurisdiction of the Court of First Instance. As early as 1948, the surety company became a
party to the case when it issued the counter-bond to the writ of attachment. During trial, it
invoked the jurisdiction of the Court of First Instance by seeking several affirmative reliefs,
including a motion to quash the writ of execution. The surety company only assailed the
jurisdiction of the Court of First Instance in 1963 when the Court of Appeals affirmed the
lower court's decision. This court said:
. . . Were we to sanction such conduct on [Manila Surety and Fidelity, Co. Inc.'s]
part, We would in effect be declaring as useless all the proceedings had in the
present case since it was commenced on July 19, 1948 and compel [the spouses
Tijam] to go up their Calvary once more. The inequity and unfairness of this is
not only patent but revolting. 68
After this court had rendered the decision in Tijam, this court observed that the "non-
waivability of objection to jurisdiction" 69 has been ignored, and the Tijam doctrine has
become more the general rule than the exception. In Calimlim v. Ramirez, 70 this court said:
A rule that had been settled by unquestioned acceptance and upheld in decisions
so numerous to cite is that the jurisdiction of a court over the subject-matter of
the action is a matter of law and may not be conferred by consent or agreement
of the parties. The lack of jurisdiction of a court may be raised at any stage of the
proceedings, even on appeal. This doctrine has been qualified by recent
pronouncements which stemmed principally from the ruling in the cited case of
[Tijam v. Sibonghanoy]. It is to be regretted, however, that the holding in said
case had been applied to situations which were obviously not contemplated
therein. . . . . 71
Thus, the court reiterated the "unquestionably accepted" 72 rule that objections to a court's
jurisdiction over the subject matter may be raised at any stage of the proceedings, even on
appeal. This is because jurisdiction over the subject matter is a "matter of law" 73 and "may
not be conferred by consent or agreement of the parties." 74
In Figueroa, 75 this court ruled that the Tijam doctrine "must be applied with great care;"
76 otherwise, the doctrine "may be a most effective weapon for the accomplishment of
injustice": 77
. . . estoppel, being in the nature of a forfeiture, is not favored by law. It is to be
applied rarely only from necessity, and only in extraordinary circumstances.
The doctrine must be applied with great care and the equity must be strong in its
favor. When misapplied, the doctrine of estoppel may be a most effective weapon
for the accomplishment of injustice. . . . a judgment rendered without jurisdiction
 over the subject matter is void. . . . . No laches will even attach when the judgment
is null and void for want of jurisdiction . . . . 78
THCASc

In this case, the exceptional circumstances similar to Tijam do not exist. Vivencio never
invoked respondent Fifth Shari'a District Court's jurisdiction to seek affirmative relief. He
filed the petition for relief from judgment precisely to assail the jurisdiction of respondent
Fifth Shari'a District Court over Roldan's petition for recovery of possession.
Thus, the general rule holds. Vivencio validly assailed the jurisdiction of respondent Fifth
Shari'a District Court over the action for recovery of possession for lack of jurisdiction
over the subject matter of Roldan's action.
II
That respondent Fifth Shari'a
District Court served summons on
petitioner Vivencio did not vest it
with jurisdiction over the person of
petitioner Vivencio
Roldan argued that the proceedings before respondent Shari'a District Court were valid
since the latter acquired jurisdiction over the person of Vivencio. When Vivencio was
served with summons, he failed to file his answer and waived his right to participate in the
proceedings before respondent Fifth Shari'a District Court. Since Vivencio waived his right
to participate in the proceedings, he cannot argue that his rights were prejudiced.
Jurisdiction over the person is "the power of [a] court to render a personal judgment or to
subject the parties in a particular action to the judgment and other rulings rendered in the
action." 79 A court acquires jurisdiction over the person of the plaintiff once he or she files
the initiatory pleading. 80 As for the defendant, the court acquires jurisdiction over his or
her person either by his or her voluntary appearance in court 81 or a valid service on him or
her of summons. 82
Jurisdiction over the person is required in actions in personam 83 or actions based on a
party's personal liability. 84 Since actions in personam "are directed against specific persons
and seek personal judgments," 85 it is necessary that the parties to the action "are properly
impleaded and duly heard or given an opportunity to be heard." 86 With respect to the
defendant, he or she must have been duly served with summons to be considered properly
impleaded; otherwise, the proceedings in personam, including the judgment rendered, are
void. 87
On the other hand, jurisdiction over the person is not necessary for a court to validly try
and decide actions in rem. 88 Actions in rem are "directed against the thing or property or
status of a person and seek judgments with respect thereto as against the whole world." 89
In actions in rem, the court trying the case must have jurisdiction over the res, or the thing
under litigation, to validly try and decide the case. Jurisdiction over the res is acquired
either "by the seizure of the property under legal process, whereby it is brought into actual
custody of the law; or as a result of the institution of legal proceedings, in which the power
of the court is recognized and made effective." 90 In actions in rem, summons must still be
served on the defendant but only to satisfy due process requirements. 91
Unlike objections to jurisdiction over the subject matter which may be raised at any stage
of the proceedings, objections to jurisdiction over the person of the defendant must be
raised at the earliest possible opportunity; otherwise, the objection to the court's jurisdiction
over the person of the defendant is deemed waived. Under Rule 9, Section 1 of the Rules
of Court,"defenses and objections not pleaded either in a motion to dismiss or in the answer
are deemed waived."
In this case, Roldan sought to enforce a personal obligation on Vivencio to vacate his
property, restore to him the possession of his property, and pay damages for the
unauthorized use of his property. 92 Thus, Roldan's action for recovery of possession is an
action in personam. As this court explained in Ang Lam v. Rosillosa and Santiago, 93 an
action to recover the title to or possession of a parcel of land "is an action in personam, for
it binds a particular individual only although it concerns the right to a tangible thing." 94
Also, in Muoz v. Yabut, Jr., 95 this court said that "a judgment directing a party to deliver
possession of a property to another is in personam. It is binding only against the parties
and their successors-in-interest by title subsequent to the commencement of the action." 96
This action being in personam, service of summons on Vivencio was necessary for
respondent Fifth Shari'a District Court to acquire jurisdiction over Vivencio's person.
However, as discussed, respondent Fifth Shari'a District Court has no jurisdiction over the
subject matter of the action, with Vivencio not being a Muslim. Therefore, all the
proceedings before respondent Shari'a District Court, including the service of summons on
Vivencio, are void. cCaDSA

III
The Shari'a Appellate Court and the
Office of the Jurisconsult in Islamic
law must now be organized to
effectively enforce the Muslim legal
system in the Philippines
We note that Vivencio filed directly with this court his petition for certiorari of respondent
Fifth Shari'a District Court's decision. Under the judicial system in Republic Act No. 9054,
97 the Shari'a Appellate Court has exclusive original jurisdiction over petitions for
certiorari of decisions of the Shari'a District Courts. He should have filed his petition for
certiorari before the Shari'a Appellate Court.
However, the Shari'a Appellate Court is yet to be organized. Thus, we call for the
organization of the court system created under Republic Act No. 9054 to effectively
enforce the Muslim legal system in our country. After all, the Muslim legal system a
legal system complete with its own civil, criminal, commercial, political, international, and
religious laws 98 is part of the law of the land, 99 and Shari'a courts are part of the
Philippine judicial system. 100
Shari'a Circuit Courts and Shari'a District Courts created under the Code of Muslim
Personal Laws of the Philippines shall continue to discharge their duties. 101 All cases tried
in Shari'a Circuit Courts shall be appealable to Shari'a District Courts. 102
The Shari'a Appellate Court created under Republic Act No. 9054 shall exercise appellate
jurisdiction over all cases tried in the Shari'a District Courts. 103 It shall also exercise
original jurisdiction over petitions for certiorari, prohibition, mandamus, habeas corpus,
and other auxiliary writs and processes in aid of its appellate jurisdiction. 104 The decisions
of the Shari'a Appellate Court shall be final and executory, without prejudice to the original
and appellate jurisdiction of this court. 105
This court held in Tomawis v. Hon. Balindong 106 that "until such time that the Shari'a
Appellate Court shall have been organized," 107 decisions of the Shari'a District Court shall
be appealable to the Court of Appeals and "shall be referred to a Special Division to be
organized in any of the [Court of Appeals] stations preferably composed of Muslim [Court
of Appeals] Justices." 108 However, considering that Tomawis was not yet promulgated
when Vivencio filed his petition for certiorari on August 6, 2009, we take cognizance of
Vivencio's petition for certiorari in the exercise of our original jurisdiction over petitions
for certiorari. 109
Moreover, priority should be given in organizing the Office of the Jurisconsult in Islamic
law. A Jurisconsult in Islamic law or "Mufti" is an officer with authority to render legal
opinions or "fatawa" 110 on any questions relating to Muslim law. 111 These legal opinions
should be based on recognized authorities 112 and "must be rendered in precise accordance
with precedent." 113 In the Philippines where only Muslim personal laws are codified, a
legal officer learned in the Qur'an and Hadiths is necessary to assist this court as well as
Shari'a court judges in resolving disputes not involving Muslim personal laws.
All told, Shari'a District Courts have jurisdiction over a real action only when the parties
involved are Muslims. Respondent Fifth Shari'a District Court acted without jurisdiction
in taking cognizance of Roldan E. Mala's action for recovery of possession considering that
Vivencio B. Villagracia is not a Muslim. Accordingly, the proceedings in SDC Special
Proceedings Case No. 07-200, including the judgment rendered, are void.
WHEREFORE, the petition for certiorari is GRANTED. Respondent Fifth Shari'a
District Court's decision dated June 11, 2008 and order dated May 29, 2009 in SDC Special
Proceedings Case No. 07-200 are SET ASIDE without prejudice to the filing of respondent
Roldan E. Mala of an action with the proper court. ScCEIA

SO ORDERED.
(Villagracia v. Fifth Shari'a District Court, G.R. No. 188832, [April 23, 2014], 734
|||

PHIL 239-267)
[G.R. No. 133064. September 16, 1999.]
 JOSE C. MIRANDA, ALFREDO S. DIRIGE, MANUEL H. AFIADO,
MARIANO V. BABARAN and ANDRES R. CABUYADAO,
petitioners, vs. HON. ALEXANDER AGUIRRE, In his capacity as
Executive Secretary; HON. EPIMACO VELASCO, in his capacity as
Secretary of Local Government, HON. SALVADOR ENRIQUEZ, in
his capacity as Secretary of Budget, THE COMMISSION ON AUDIT,
THE COMMISSION ON ELECTIONS, HON. BENJAMIN G. DY, in
his capacity as Governor of Isabela, THE HONORABLE
SANGGUNIANG PANLALAWIGAN OF ISABELA, ATTY.
BALTAZAR PICIO, in his capacity as Provincial Administrator, and
MR. ANTONIO CHUA, in his capacity as Provincial Treasurer,
respondents, GIORGIDI B. AGGABAO, intervenor.

Nelia P. Natividad for petitioner.

The Solicitor General for public respondent.
Aggarao and Sto. Domingo for intervenor.

SYNOPSIS

In 1998, by virtue of RA No. 8528, the City of Santiago, Isabela was converted from an
independent component city to a component city. Herein assailed is the constitutionality of
RA No. 8528 on the ground of lack of provision in the said law submitting the same for
ratification by the people of Santiago City in a proper plebiscite.
The Court held that the Constitution requires a plebiscite. In the case at bar, the issue is
whether the downgrading of Santiago City from an independent component city to a mere
component requires the approval of the people of Santiago City. The resolution of the issue
depends on whether or not the downgrading of Santiago City falls within the meaning of
creation, division, merger, abolition or substantial alteration of boundaries of
municipalities per Section 10, Article X of the 1987 Constitution. A close analysis of the
said constitutional provision will reveal that the common denominator is the material
change in the political and economic rights of the local government units directly affected
as well as the people therein. It is precisely for this reason that the Constitution requires
the approval of the people in the political units "directly affected." Further, Section 10,
Chapter 2 of the Local Government Code and Rule II, Article 6, par. (f)(1) of the
Implementing Rules and Regulations of the Local Government Code reiterate the
constitutional requirement.

SYLLABUS
1. REMEDIAL LAW; CIVIL PROCEDURE; PARTIES; CONSTITUTIONALITY OF
LAW CAN BE CHALLENGED BY ONE WHO WILL SUSTAIN A DIRECT INJURY
AS A RESULT OF ITS ENFORCEMENT; CASE AT BAR. The constitutionality of
law can be challenged by one who will sustain a direct injury as a result of its enforcement.
Petitioner Miranda was the mayor of Santiago City when he filed the present petition in his
own right as mayor. It is also indubitable that the change of status of the city of Santiago
from independent component city to a mere component city will affect his powers as
mayor. The injury that he would sustain from the enforcement of R.A. No. 8528 is direct
and immediate. Then, the other petitioners are residents and voters in the city of Santiago.
They have the right to be heard in the conversion of their city thru a plebiscite to be
conducted by the COMELEC. The denial of this right in R.A. No. 8528 gives them proper
standing to strike the law as unconstitutional.HEDSCc

2. CONSTITUTIONAL LAW; JUDICIAL DEPARTMENT; JUDICIAL POWER;

JUSTICIABLE ISSUE; CONSTITUTIONALITY OF A LAW, NECESSARILY
INCLUDED THEREIN. Section 1 of Article VIII of the 1987 Constitution defines
judicial power as including "the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and 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." To be sure, the cut between
a political and justiciable issue has been made by this Court in many cases and need no
longer mystify us. The petition at bar presents a justiciable issue. Petitioners claim that
under Section 10, Article X of the 1987 Constitution they have a right to approve or
disapprove R.A. No. 8528 in a plebiscite before it can be enforced. Whether or not
petitioners have the said right is a legal not a political question. For whether or not laws
passed by Congress comply with the requirements of the Constitution pose questions that
this Court alone can decide. The proposition that this Court is the ultimate arbiter of the
meaning and nuances of the Constitution need not be the subject of a prolix explanation.
3. ID.; LOCAL GOVERNMENT; CONVERSION OF THE CITY OF SANTIAGO
FROM AN INDEPENDENT COMPONENT CITY TO A COMPONENT CITY;
UNCONSTITUTIONAL IN THE ABSENCE OF A PLEBISCITE. R.A. No. 8528 is
unconstitutional. The conversion of the city of Santiago from an independent component
city to a component city should be submitted to its people in a proper plebiscite. Section
10, Article X of the 1987 Constitution provides "No province, city, municipality, or
barangay may be created, or 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." A close analysis of the said constitutional provision will reveal that the
creation, division, merger, abolition or substantial alteration of boundaries of local
government units involve a common denominator material change in the political and
economic rights of the local government units directly affected as well as the people
therein. It is precisely for this reason that the Constitution requires the approval of the
people "in the political units directly affected." Section 10, Article X addressed the
undesirable practice in the past whereby local government units were created, abolished,
merged or divided on the basis of the vagaries of politics and not of the welfare of the
people. Thus, the consent of the people of the local government unit directly affected was
required to serve as a checking mechanism to any exercise of legislative power creating,
dividing, abolishing, merging or altering the boundaries of local government units. It is one
instance where the people in their sovereign capacity decide on a matter that affects them
- direct democracy of the people as opposed to democracy thru people's representatives.
This plebiscite requirement is also in accord with the philosophy of the Constitution
granting more autonomy to local government units. The changes that will result from the
downgrading of the city of Santiago from an independent component city to a component
city are many and cannot be characterized as insubstantial. Section 10, Chapter 2 of the
Local Government Code and Rule II, Article 6, paragraph (f) (1) of the Implementing Rules
and Regulations of the Local Government Code is in accord with the Constitution. The
rules therein cover all conversions, whether upward or downward in character, so long as
they result in a material change in the local government unit directly affected, especially a
change in the political and economic rights of its people.
4. ID.; ID.; ALTERATION OF BOUNDARY OF A LOCAL GOVERNMENT UNIT;
CONDITIONS. Section 10, Article X of the 1987 Constitution imposes two conditions
first, the creation, division, merger, abolition or substantial alteration of boundary of a
local government unit must meet the criteria fixed by the Local Government Code on
income, population and land area and second, the law must be approved by the people "by
a majority of the votes cast in a plebiscite in the political units directly affected."
5. ID.; ID.; ID.; ID.; PROVISIONS THEREOF UNDER THE LOCAL GOVERNMENT
CODE; DISCUSSED. In accord with Section 10, Article IX of the Constitution,
Sections 7, 8, and 9 of the Local Government Code fixed the required criteria and they
involve requirements on income, population and land area. These requirements, however,
are imposed to help assure the economic viability of the local government unit concerned.
They were not imposed to determine the necessity for a plebiscite of the people. Indeed, the
Local Government Code does not state that there will be no more plebiscite after its
requirements on income, population and land area have been satisfied. On the contrary,
Section 10, Chapter 2 of the Code provides for the necessity of a plebiscite. Said plebiscite
shall be conducted by the COMELEC within one hundred twenty (120) days from the date
of the effectivity of the law or ordinance effecting such action, unless said law or ordinance
fixes another date."
6. ID.; ID.; ID.; ID.; PURPOSES; DISCUSSED. The two requirements under Section
10 of Article IX of the Constitution have different purposes. The criteria fixed by the Local
Government Code on income, population and land area are designed to achieve an
economic purpose. They are to be based on verified indicators, hence, Section 7, Chapter
2 of the Local Government Code requires that these "indicators shall be attested by the
Department of Finance, the National Statistics Office, and the Lands Management Bureau
of the Department of Environment and Natural Resources." In contrast, the people's
plebiscite is required to achieve a political purpose to use the people's voice as a check
against the pernicious political practice of gerrymandering. There is no better check against
this excess committed by the political representatives of the people themselves than the
exercise of direct people power.
BUENA, J., dissenting opinion:
1. CONSTITUTIONAL LAW; LOCAL GOVERNMENT; "CONVERSION" OF
BOUNDARY OF LOCAL GOVERNMENT UNITS; ELUCIDATED TO JUSTIFY THE
ABSURDITY OF PLEBISCITE THEREIN. Conversion does not appear in the 1987
Constitution nor in the Section 10, Chapter 2 of the Local Government Code. Surprisingly,
Rule II, Article 6, paragraph (f)(1) of the Implementing Rules of the Local Government
Code included conversion in the enumeration of the modes of changing the status of local
government units. Then, the Local Government Code uses the term "conversion" only in
some instances. Senator Aquilino Pimentel, Jr. defines "conversion, "'as "the elevation of
an LGU from one level to another, like converting a municipality to a city or a component
city to a highly urbanized one or the raising of the classification of one municipality, city
or province from a fourth class category to third, second or first." It is my humble opinion
therefore that the requirement of a plebiscite does not apply to the case at bar which does
not involve the upgrading or elevation of Santiago City but a downgrading thereof.

2. ADMINISTRATIVE LAW; LOCAL GOVERNMENT CODE;IMPLEMENTING

RULES AND REGULATIONS; THE LATTER CANNOT EXPAND THE TERMS AND
PROVISIONS OF THE FORMER. I am not convinced that a mere Rule and Regulation
intended to implement the Local Government Code can expand the terms and provisions
clearly expressed in the basic law to be implemented. As a matter of fact, Mr. Justice Puno,
in his ponencia in the case of Iglesia ni Kristo v. CA, opined that "(T)his rule is void for it
runs smack against the hoary doctrine that administrative rules and regulations cannot
expand the letter and spirit of the law they seek to enforce.
3. CONSTITUTIONAL LAW; LOCAL GOVERNMENT; R.A. NO. 8528;
CONSTITUTIONALITY THEREOF DEFENDED, EVEN IN THE ABSENCE OF A
PLEBISCITE, IN RESPECT TO THE DECISION OF THE LAW MAKING BODY.
The proceedings in the Senate show that the Committee on Local Government, to which
H.B. No. 8729 was referred, reported back to the Senate with the recommendation that it
be approved with an amendment providing for a plebiscite. However, after the
deliberations in the Senate, the Committee on Local Government decided to withdraw the
foregoing proposed amendment. Hence, on February 6, 1998, the Republic Act No. 8528,
the constitutionality of which is challenged by the petitioners, was approved. Be that as it
may, may this Court properly require a plebiscite for the validity of said law when Congress
itself, which had been given the opportunity to include such a requirement, decided against
it? Are we not supplanting our judgment over that of Congress, a co-equal branch of
government entrusted by the Constitution to enact laws? I respectfully submit that we may
not do so without disturbing the balance of power as apportioned and delineated by the
Constitution.
4. STATUTORY CONSTRUCTION; LAWS; PRESUMPTION OF
CONSTITUTIONALITY, FAVORED. In a situation where the supposed breach of the
constitution is doubtful, equivocal and, at best, based on argumentative implications, I
believe that, as we have ruled in a plethora of cases, every law has in its favor, the
presumption of constitutionality and in case of doubt, the Court must exert every effort to
prevent the invalidation of the law and the nullification of the will of the legislature that
enacted it and the executive that approved it.
VITUG, J., separate opinion:
CONSTITUTIONAL LAW; LOCAL GOVERNMENT; CONVERSION OF THE CITY
OF SANTIAGO, ISABELA, FROM AN INDEPENDENT TO A COMPONENT CITY;
PLEBISCITE, REQUIRED. I share the opinion of the majority of my colleagues that,
for the reasons expressed in the ponencia, a plebiscite is essential in order to render
effective the conversion of the City of Santiago, Isabela, from an independent to a
component city. I take the view that a plebiscite can be held conformably with the
provisions of the Local Government Code.
MENDOZA, J., dissenting opinion:
1. CONSTITUTIONAL LAW; LOCAL GOVERNMENT; CHANGE IN THE
CLASSIFICATION OF LOCAL GOVERNMENT UNIT; WHEN POPULAR
APPROVAL REQUIRED. Not every change however "material" and far-reaching
in the classification of a local government unit requires popular approval. Only if the
reclassification involves changes in income, population, and land area of the local
government unit is there a need for such changes to be approved by the people, for then
there would be a creation, division, merger, abolition, or substantial alteration of the
boundary of a local government unit, as the case may be, within the meaning of Art. X,
10 of the Constitution.
2. ID.; ID.; CONVERSION OF AN INDEPENDENT COMPONENT CITY TO A
COMPONENT CITY IS NOT SUBSTANTIAL ALTERATION OF THE BOUNDARY
OF A LOCAL GOVERNMENT UNIT SO AS TO REQUIRE A PLEBISCITE FOR
THEIR APPROVAL. - The conversion from an independent component city to a
component city involves no such changes in income, population, or land area. There may
be changes in the voting rights of the residents of the city, the supervision of the city's
administration, and the city's share in the local taxes, as petitioners point out, but such
changes do not amount to the creation, division, merger, abolition, or substantial alteration
of the boundary of a local government unit so as to require a plebiscite for their approval.
An independent component city and an ordinary component city are both component cities,
as distinguished from highly urbanized cities. The only difference between them is that the
charters of the independent component cities prohibit their voters from voting for
provincial elective officials and such cities are independent of the provinces in which they
are located. The fact is that whether the City of Santiago is an independent component city
or an ordinary component city, it is subject to administrative supervision, with the only
difference that, as an independent component city, it is under the direct supervision of the
President of the Philippines, whereas, as an ordinary component city, it will be subject to
the supervision of the President through the province. That is hardly a distinction. For the
fact is that under the Constitution, the President of the Philippines exercises general
supervision over all local governments. Nor does it matter that ordinances passed by the
city councils of component cities are subject to review (not approval as the Court says) by
the provincial boards for the purpose of determining whether the ordinances are within the
powers of the city councils to enact. For that matter, ordinances passed by the city councils
of independent component cities are likewise subject to review, although by the Office of
the President. The reason for this is to be found in Art. X, 4 of the Constitution.
3. ID.; ID.; LOCAL GOVERNMENT UNIT; DEFINING CHARACTERISTICS. The
defining characteristics of a local government unit are its income, population, and local
area, as 450 and 452 of the LGC provide. These are referred to in 7 of the LGC and its
Implementing Rules as the "verifiable indicators of viability and projected capacity to
provide services." Tested by these standards, there is no change in the City of Santiago
requiring the approval of the people in a plebiscite.
4. ID.; ID.; R.A. NO. 7720 AND R.A. NO. 8528 COMPARED FOR THE PURPOSE OF
HOLDING A PLEBISCITE. The conversion of the then Municipality of Santiago in
Isabela Province by R.A. No. 7720 was an act of creation. It was based on the
municipality's satisfying the requisites for the creation of a city as provided in the
LGC.These requisites are based on the "verifiable indicators" of income, population, and
land area and, therefore, the conversion of what was once a municipality into a city needed
approval in a plebiscite. But the conversion of Santiago City from an independent
component city into a component city under RA No. 8528 involves no more than a change
in the right of the people (i.e., the registered voters of the city) to vote for provincial elective
officials. By analogy, when a municipality is converted into a city, a city is created, and
when the city is reverted into a municipality, the city is abolished. Both acts of creation
and abolition require the approval of the people in a plebiscite called for the purpose. But
when an independent component city is converted into a component city, it is not created
into another form, it is not divided, it is not merged with another unit of local government,
it is not abolished, much less is its boundary substantially altered. Indeed, this is not the
first time that an independent component city is converted into a component city without a
plebiscite. There is, therefore, no reason for requiring that the reclassification of Santiago
City as a component city must be approved by the majority of the votes cast in a plebiscite
and for holding that, because R.A. No. 8528 contains no provision for such plebiscite, it is
unconstitutional. IDESTH

DECISION
PUNO, J : p

This is a petition for a writ of prohibition with prayer for preliminary injunction assailing
the constitutionality of Republic Act No. 8528 converting the city of Santiago, Isabela from
an independent component city to a component city. LLjur

On May 5, 1994, Republic Act No. 7720 which converted the municipality of Santiago,
Isabela into an independent component city was signed into law. On July 4, 1994, the
people of Santiago ratified R.A. No. 7720 in a plebiscite. 1
On February 14, 1998, Republic Act No. 8528 was enacted. It amended R.A. No. 7720.
Among others, it changed the status of Santiago from an independent component city to a
component city, viz:
"AN ACT AMENDING CERTAIN SECTIONS OF REPUBLIC ACT
NUMBERED 7720 AN ACT CONVERTING THE MUNICIPALITY OF
SANTIAGO INTO AN INDEPENDENT COMPONENT CITY TO BE
KNOWN AS THE CITY OF SANTIAGO.
"Be it enacted by the Senate and House of Representatives of the Philippines in
Congress assembled:
"SECTION 1. Section 2 of Republic Act No. 7720 is hereby amended by deleting
the words "an independent" thereon so that said Section will read as follows:
'SECTION 2. The City of Santiago. The Municipality of Santiago shall
be converted into a component city to be known as the City of Santiago,
hereinafter referred to as the City, which shall comprise of the present
territory of the Municipality of Santiago, Isabela. The territorial
jurisdiction of the City shall be within the present metes and bounds of
the Municipality of Santiago.' cdll

"SECTION 2. Section 51 of Republic Act No. 7720 is hereby amended deleting

the entire section and in its stead substitute the following:
'SECTION 51. Election of Provincial Governor, Vice-Governor,
Sangguniang Panlalawigan Members, and any Elective Provincial
Position for the Province of Isabela. The voters of the City of Santiago
shall be qualified to vote in the elections of the Provincial Governor, Vice-
Governor, Sangguniang Panlalawigan members and other elective
provincial positions of the Province of Isabela, and any such qualified
voter can be a candidate for such provincial positions and any elective
provincial office.'

"SECTION 3. Repealing Clause. All existing laws or parts thereof

inconsistent with the provisions of this Act are hereby repealed or modified
accordingly.
"SECTION 4. Effectivity. This Act shall take effect upon its approval.
 "Approved."
Petitioners assail the constitutionality of R.A. No. 8528. 2 They alleged as ground the lack
of provision in R.A. No. 8528 submitting the law for ratification by the people of Santiago
City in a proper plebiscite. Petitioner Miranda was the mayor of Santiago at the time of the
filing of the petition at bar. Petitioner Afiado is the President of the Liga ng mga Barangay
ng Santiago City. Petitioners Dirige, Cabuyadao and Babaran are residents of Santiago
City.
In their Comment, respondent provincial officials of Isabela defended the constitutionality
of R.A. No. 8528. They assailed the standing of petitioners to file the petition at bar. They
also contend that the petition raises a political question over which this Court lacks
jurisdiction.llcd

Another Comment was filed by the Solicitor General for the respondent public officials.
The Solicitor General also contends that petitioners are not real parties in interest. More
importantly, it is contended that R.A. No. 8528 merely reclassified Santiago City from an
independent component city to a component city. It allegedly did not involve any "creation,
division, merger, abolition, or substantial alteration of boundaries of local government
units," hence, a plebiscite of the people of Santiago is unnecessary.
A third Comment similar in tone was submitted by intervenor Giorgidi B. Aggabao, 3 a
member of the provincial board of Isabela. 4 He contended that both the Constitution and
the Local Government Code of 1991 do not require a plebiscite "to approve a law that
merely allowed qualified voters of a city to vote in provincial elections. The rules
implementing the Local Government Code cannot require a plebiscite. He also urged that
petitioners lacked locus standi.
Petitioners filed a Reply to meet the arguments of the respondents and the intervenor. They
defended their standing. They also stressed the changes that would visit the city of Santiago
as a result of its reclassification.
We find merit in the petition.
First. The challenge to the locus standi of petitioners cannot succeed. It is now an ancient
rule that the constitutionality of law can be challenged by one who will sustain a direct
injury as a result of its enforcement. 5 Petitioner Miranda was the mayor of Santiago City
when he filed the present petition in his own right as mayor and not on behalf of the city,
hence, he did not need the consent of the city council of Santiago City. It is also indubitable
that the change of status of the city of Santiago from independent component city to a mere
component city will affect his powers as mayor, as will be shown hereafter. The injury that
he would sustain from the enforcement of R.A. No. 8528 is direct and immediate and not
a mere generalized grievance shared with the people of Santiago City. Similarly, the
standing of the other petitioners rests on a firm foundation. They are residents and voters
in the city of Santiago. They have the right to be heard in the conversion of their city thru
a plebiscite to be conducted by the COMELEC. The denial of this right in R.A. No. 8528
gives them proper standing to strike the law as unconstitutional.
Second. The plea that this court back off from assuming jurisdiction over the petition at bar
on the ground that it involves a political question has to be brushed aside. This plea has
long lost its appeal especially in light of Section 1 of Article VIII of the 1987 Constitution
which defines judicial power as including "the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable, and 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." To
be sure, the cut between a political and justiciable issue has been made by this Court in
many cases and need no longer mystify us. In Taada v. Cuenco, 6 we held: cda

"xxx xxx xxx

"The term 'political question' connotes what it means in ordinary parlance,
namely, a question of policy. It refers 'to those questions which under the
Constitution are to be decided by the people in their sovereign capacity; or in
regard to which full discretionary authority has been delegated to the legislative
or executive branch of the government.' It is concerned with issues dependent
upon the wisdom, not legality, of a particular measure."
In Casibang v. Aquino, 7 we defined a justiciable issue as follows:
"A purely justiciable issue implies a given right, legally demandable and
enforceable, an act or omission violative of such right, and a remedy granted and
sanctioned by law, for said breach of right."
Clearly, the petition at bar presents a justiciable issue. Petitioners claim that under
Section 10, Article X of the 1987 Constitution they have a right to approve or
disapprove R.A. No. 8528 in a plebiscite before it can be enforced. It ought to be self-
evident that whether or not petitioners have the said right is a legal not a political
question. For whether or not laws passed by Congress comply with the requirements
of the Constitution pose questions that this Court alone can decide. The proposition
that this Court is the ultimate arbiter of the meaning and nuances of the Constitution
need not be the subject of a prolix explanation.
Third. The threshold issue is whether R.A. No. 8528 is unconstitutional for its failure to
provide that the conversion of the city of Santiago from an independent component city to
a component city should be submitted to its people in a proper plebiscite. We hold that the
Constitution requires a plebiscite. Section 10, Article X of the 1987 Constitution provides:
"No province, city, municipality, or barangay may be created, or 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."
cdphil
 This constitutional requirement is reiterated in Section 10, Chapter 2 of the Local
Government Code (R.A. No. 7160), thus:
"SECTION 10. No province, city, municipality, or barangay may be created,
divided, merged, abolished, or its boundary substantially altered except in
accordance with the criteria established in the local government code and subject
to approval by a majority of the votes cast in a plebiscite in the political units
directly affected."
The power to create, divide, merge, abolish or substantially alter boundaries of local
government units belongs to Congress. 8 This power is part of the larger power to enact
laws which the Constitution vested in Congress. 9 The exercise of the power must be in
accord with the mandate of the Constitution. In the case at bar, the issue is whether the
downgrading of Santiago City from an independent component city to a mere component
city requires the approval of the people of Santiago City in a plebiscite. The resolution of
the issue depends on whether or not the downgrading falls within the meaning of creation,
division, merger, abolition or substantial alteration of boundaries of municipalities per
Section 10, Article X of the Constitution. A close analysis of the said constitutional
provision will reveal that the creation, division, merger, abolition or substantial alteration
of boundaries of local government units involve a common denominator material
change in the political and economic rights of the local government units directly affected
as well as the people therein. It is precisely for this reason that the Constitution requires
the approval of the people "in the political units directly affected." It is not difficult to
appreciate the rationale of this constitutional requirement. The 1987 Constitution, more
than any of our previous Constitutions, gave more reality to the sovereignty of our people
for it was borne out of the people power in the 1986 EDSA revolution. Its Section 10,
Article X addressed the undesirable practice in the past whereby local government units
were created, abolished, merged or divided on the basis of the vagaries of politics and not
of the welfare of the people. Thus, the consent of the people of the local government unit
directly affected was required to serve as a checking mechanism to any exercise of
legislative power creating, dividing, abolishing, merging or altering the boundaries of local
government units. It is one instance where the people in their sovereign capacity decide on
a matter that affects them direct democracy of the people as opposed to democracy thru
people's representatives. This plebiscite requirement is also in accord with the philosophy
of the Constitution granting more autonomy to local government units. LibLex

The changes that will result from the downgrading of the city of Santiago from an
independent component city to a component city are many and cannot be characterized as
insubstantial. For one, the independence of the city as a political unit will be diminished.
The city mayor will be placed under the administrative supervision of the provincial
governor. The resolutions and ordinances of the city council of Santiago will have to be
reviewed by the Provincial Board of Isabela. Taxes that will be collected by the city will
now have to be shared with the province. Petitioners pointed out these far reaching changes
on the life of the people of the city of Santiago, viz: 10
"Although RESPONDENTS would like to make it appear that R.A. No. 8528 had
"merely re-classified" Santiago City from an independent component city into a
component city, the effect when challenged (sic) the Act were operational would
be, actually, that of conversion. Consequently, there would be substantial
changes in the political culture and administrative responsibilities of Santiago
City, and the Province of Isabela. Santiago City from an independent component
city will revert to the Province of Isabela, geographically, politically and
administratively. Thus, the territorial land area of Santiago City will be added to
the land area comprising the province of Isabela. This will be to the benefit or
advantage of the Provincial Government of Isabela on account of the subsequent
increase of its share from the internal revenue allotment (IRA) from the National
Government (Section 285, R.A. No. 7160 or the Local Government Code of
1991). The IRA is based on land area and population of local government units,
provinces included.

"The nature or kinds, and magnitude of the taxes collected by the City
Government, and which taxes shall accrue solely to the City Government, will be
redefined (Section 151, R.A. No. 7160), and may be shared with the province
such as taxes on sand, gravel and other quarry resources (Section 138, R.A. No.
7160), professional taxes (Section 139, R.A. No. 7160), or amusement taxes
(Section 140, R.A. No. 7160). The Provincial Government will allocate operating
funds for the City. Inarguably, there would be a (sic) diminished funds for the
local operations of the City Government because of reduced shares of the IRA in
accordance with the schedule set forth by Section 285 of the R.A. No. 7160. The
City Government's share in the proceeds in the development and utilization of
national wealth shall be diluted since certain portions shall accrue to the
Provincial Government (Section 292, R.A. No. 7160).
"The registered voters of Santiago City will vote for and can be voted as
provincial officials (Section 451 and 452 [c], R.A. No. 7160). cda

"The City Mayor will now be under the administrative supervision of the
Provincial Governor who is tasked by law to ensure that every component city
and municipality within the territorial jurisdiction of the province acts within the
scope of its prescribed powers and functions (Section 29 and 465 (b) (2) (i), R.A.
No. 7160), and to review (Section 30, R.A. No. 7160) all executive orders
submitted by the former (Section 455 (b) (1) (xii), R.A. No. 7160) and
(R)eportorial requirements with respect to the local governance and state of
affairs of the city (Section 455 (b) (1) (xx), R.A. No. 7160). Elective city officials
will also be effectively under the control of the Provincial Governor (Section 63,
R.A. No. 7160). Such will be the great change in the state of the political
autonomy of what is now Santiago City where by virtue of R.A. No. 7720, it is
the Office of the President which has supervisory authority over it as an
independent component city (Section 25, R.A. No. 7160; Section 4 (ARTICLE
X), 1987 Constitution).
 "The resolutions and ordinances adopted and approved by the Sangguniang
Panlungsod will be subject to the review of the Sangguniang Panlalawigan
(Sections 56, 468 (a) (1) (i), 468 (a) (2) (vii), and 469 (c) (4), R.A. No. 7160).
Likewise, the decisions in administrative cases by the former could be appealed
and acted upon by the latter (Section 67, R.A. No. 7160)."
It is markworthy that when R.A. No. 7720 upgraded the status of Santiago City from
a municipality to an independent component city, it required the approval of its people
thru a plebiscite called for the purpose. There is neither rhyme nor reason why this
plebiscite should not be called to determine the will of the people of Santiago City
when R.A. No. 8528 downgrades the status of their city. Indeed, there is more reason
to consult the people when a law substantially diminishes their right. Rule II, Article
6, paragraph (f) (1) of the Implementing Rules and Regulations of the Local
Government Code is in accord with the Constitution when it provides that: cdtai

"(f) Plebiscite (1) no creation, conversion, division, merger, abolition, or

substantial alteration of boundaries of LGUS shall take effect unless approved by
a majority of the votes cast in a plebiscite called for the purpose in the LGU or
LGUs affected. The plebiscite shall be conducted by the Commission on
Elections (COMELEC) within one hundred twenty (120) days from the
effectivity of the law or ordinance prescribing such action, unless said law or
ordinance fixes another date.
"xxx xxx xxx."
The rules cover all conversions, whether upward or downward in character, so long as
they result in a material change in the local government unit directly affected,
especially a change in the political and economic rights of its people.
A word on the dissenting opinions of our esteemed brethren. Mr. Justice Buena justifies
R.A. No. 8528 on the ground that Congress has the power to amend the charter of Santiago
City. This power of amendment, however, is limited by Section 10, Article X of the
Constitution. Quite clearly, when an amendment of a law involves the creation, merger,
division, abolition or substantial alteration of boundaries of local government units, a
plebiscite in the political units directly affected is mandatory. He also contends that the
amendment merely caused a transition in the status of Santiago as a city. Allegedly, it is a
transition because no new city was created nor was a former city dissolved by R.A. No.
8528. As discussed above, the spirit of Section 10, Article X of the Constitution calls for
the people of the local government unit directly affected to vote in a plebiscite whenever
there is a material change in their rights and responsibilities. They may call the
downgrading of Santiago to a component city as a mere transition but they cannot blink
away from the fact that the transition will radically change its physical and political
configuration as well as the rights and responsibilities of its people.
On the other hand, our esteemed colleague, Mr. Justice Mendoza, posits the theory that
"only if the classification involves changes in income, population, and land area of the local
government unit is there a need for such changes to be approved by the people . . . ." Cdpr
With due respect, such an interpretation runs against the letter and spirit of section 10,
Article X of the 1987 Constitution which, to repeat, states: "No province, city,
municipality, or barangay may be created, divided, merged, abolished, or its boundary
substantially altered except in accordance with the criteria established in the Local
Government Code and subject to approval by a majority of the votes cast in a plebiscite in
the political units directly affected." It is clear that the Constitution imposes two conditions
first, the creation, division, merger, abolition or substantial alteration of boundary of a
local government unit must meet the criteria fixed by the Local Government Code on
income, population and land area and second, the law must be approved by the people "by
a majority of the votes cast in a plebiscite in the political units directly affected."
In accord with the Constitution, sections 7, 8, and 9 of the Local Government Code fixed
the said criteria and they involve requirements on income, population and land area. These
requirements, however, are imposed to help assure the economic viability of the local
government unit concerned. They were not imposed to determine the necessity for a
plebiscite of the people. Indeed, the Local Government Code does not state that there will
be no more plebiscite after its requirements on income, population and land area have been
satisfied. On the contrary, section 10, Chapter 2 of the Code provides: "No creation,
division, merger, abolition, or substantial alteration of boundaries of local government
units shall take effect unless approved by a majority of the votes casts in a plebiscite called
for the purpose in the political unit or units directly affected. Said plebiscite shall be
conducted by the COMELEC within one hundred twenty (120) days from the date of the
effectivity of the law or ordinance effecting such action, unless said law or ordinance fixes
another date." 11 Senator Aquilino Pimentel, the principal author of the Local Government
Code of 1991, opines that the plebiscite is absolute and mandatory. 12
It cannot be overstressed that the said two requirements of the Constitution have different
purposes. The criteria fixed by the Local Government Code on income, population and
land area are designed to achieve an economic purpose. They are to be based on verified
indicators, hence, section 7, Chapter 2 of the Local Government Code requires that these
"indicators shall be attested by the Department of Finance, the National Statistics Office,
and the Lands Management Bureau of the Department of Environment and Natural
Resources." In contrast, the people's plebiscite is required to achieve a political purpose
to use the people's voice as a check against the pernicious political practice of
gerrymandering. There is no better check against this excess committed by the political
representatives of the people themselves than the exercise of direct people power. As well-
observed by one commentator, as the creation, division, merger, abolition, or substantial
alteration of boundaries are ". . . basic to local government, it is also imperative that these
acts be done not only by Congress but also be approved by the inhabitants of the locality
concerned. . . . By giving the inhabitants a hand in their approval, the provision will also
eliminate the old practice of gerrymandering and minimize legislative action designed for
the benefit of a few politicians. Hence, it promotes the autonomy of local government
units." 13
The records show that the downgrading of Santiago City was opposed by certain segments
of its people. In the debates in Congress, it was noted that at the time R.A. No. 8528 was
proposed, Santiago City has been converted to an independent component city barely two
and a half (2 1/2) years ago and the conversion was approved by a majority of 14,000 votes.
Some legislators expressed surprise for the sudden move to downgrade the status of
Santiago City as there had been no significant change in its socio-economic-political status.
The only reason given for the downgrading is to enable the people of the city to aspire for
the leadership of the province. To say the least, the alleged reason is unconvincing for it is
the essence of an independent component city that its people can no longer participate or
be voted for in the election of officials of the province. The people of Santiago were aware
that they gave up that privilege when they voted to be independent from the province of
Isabela. There was an attempt on the part of the Committee on Local Government to submit
the downgrading of Santiago City to its people via a plebiscite. The amendment to this
effect was about to be voted upon when a recess was called. After the recess, the chairman
of the Committee announced the withdrawal of the amendment "after a very enlightening
conversation with the elders of the Body." We quote the debates, viz: 14

"BILL ON SECOND READING

H.B. No. 8729 City of Santiago
"Senator Tatad. Mr. President, I move that we consider House Bill No. 8729 as
reported out under Committee Report No. 971.
"The President. Is there any objection? [Silence] there being none, the motion is
approved. llcd

"Consideration of House Bill No. 8729 is now in order. With the permission of
the Body, the Secretary will read only the title of the bill without prejudice to
inserting in the Record the whole text thereof.
"The Acting Secretary [Atty. Raval]. House Bill No. 8729, entitled
AN ACT AMENDING CERTAIN SECTIONS OF R.A. NO. 7720 ENTITLED
"AN ACT CONVERTING THE MUNICIPALITY OF SANTIAGO INTO AN
INDEPENDENT COMPONENT CITY TO BE KNOWN AS THE CITY OF
SANTIAGO
The following is the full text of H.B. No. 8729
Insert
"Senator Tatad. Mr. President, for the sponsorship, I ask that the distinguished
Chairman of the Committee on Local Government be recognized. cdll

"The President. Senator Sotto is recognized.

SPONSORSHIP SPEECH OF SENATOR SOTTO
"Mr. President. House Bill No. 8729, which was introduced in the House by
Congressman Antonio M. Abaya as its principal author, is a simple measure
which merely seeks to convert the City of Santiago into a component city of the
Province of Isabela.
"The City of Santiago is geographically located within, and is physically an
integral part of the Province of Isabela. As an independent component city,
however, it is completely detached and separate from the said province as a local
political unit. To use the language of the Explanatory Note of the proposed bill,
the City of Santiago is an 'island in the provincial milieu.'
"The residents of the city no longer participate in the elections, nor are they
qualified to run for any elective positions in the Province of Isabela.
"The Province of Isabela, on the other hand, is no longer vested with the power
and authority of general supervision over the city and its officials, which power
and authority are now exercised by the Office of the President, which is very far
away from Santiago City. llcd

Being geographically located within the Province of Isabela, the City of Santiago
is affected, one way or the other, by the happenings in the said province, and is
benefited by its progress and development. Hence, the proposed bill to convert
the City of Santiago into a component city of Isabela.
"Mr. President, it is my pleasure, therefore, to present for consideration of this
august Body Committee Report No. 971 of the Committee on Local Government,
recommending approval, with our proposed committee amendment, of House Bill
No. 8729.
"Thank you, Mr. President.
"The President. The Majority Leader is recognized.
"Senator Tatad. Mr. President, I moved (sic) that we close the period of
interpellations.
"The President. Is there any objection? [Silence] There being none, the period of
interpellations is closed.
"Senator Tatad. I move that we now consider the committee amendments.
"Senator Roco. Mr. President.
"The President. What is the pleasure of Senator Roco?
"Senator Roco. Mr. President, may I ask for a reconsideration of the ruling on the
motion to close the period of interpellations just to be able to ask a few questions?
"Senator Tatad. May I move for a reconsideration of my motion, Mr. President.
"The President. Is there any objection to the reconsideration of the closing of the
period of interpellations? [Silence] There being none, the motion is approved. prcd

"Senator Roco is recognized.

"Senator Roco. Will the distinguished gentleman yield for some questions?
"Senator Sotto. Willingly, Mr. President.
"Senator Roco. Mr. President, together with the Chairman of the Committee on
Local Government, we were with the sponsors when we approved this bill to make
Santiago a City. That was about two and a half years ago. At that time, I
remember it was the cry of the city that it be 'independent.' Now we are deleting
that word 'independent.'
"Mr. President, only because I was a co-author and a co-sponsor, for the Record,
I want some explanation on what happened between then and now that has made
us decide that the City of Santiago should cease to be independent and should
now become a component city.
"Senator Sotto. Mr. President, the officials of the province said during the public
hearing that they are no longer vested with the power and authority of general
supervision over the city. The power and authority is now being exercised by the
Office of the President and it is quite far from the City of Santiago.
"In the public hearing, we also gathered that there is a clamor from some sectors
that they want to participate in the provincial elections.
"Senator Roco. Mr. President, I did not mean to delay this. I did want it on record,
however. I think there was a majority of 14,000 who approved the charter, and
maybe we owe it to those who voted for that charter some degree of respect. But
if there has been a change of political will, there has been a change of political
will, then so be it.
dctai

"Thank you, Mr. President.

"Senator Sotto. Mr. President, to be very frank about it, that was a very important
point raised by Senator Roco, and I will have to place it on the Record of the
Senate that the reason why we are proposing a committee amendment is that,
originally, there was an objection on the part of the local officials and those who
oppose it by incorporating a plebiscite in this bill. That was the solution. Because
there were some sectors in the City of Santiago who were opposing the
reclassification or reconversion of the city into a component city.
"Senator Roco. All I wanted to say, Mr. President because the two of us had
special pictures (sic) in the city is that I thought it should be put on record that
we have supported originally the proposal to make it an independent city. But
now if it is their request, then, on the manifestation of the Chairman, let it be so.
"Thank you.
"Senator Drilon. Mr. President.
"Senator Drilon. Will the gentleman yield for a few questions, Mr. President?
"Senator Sotto. Yes, Mr. President. cda
"Senator Drilon. Mr. President, further to the interpellation of our good friend,
the Senator from Bicol, on the matter of the opinion of the citizens of Santiago
City, there is a resolution passed by the Sanggunian on January 30, 1997
opposing the conversion of Santiago from an independent city.
"This opposition was placed on records during the committee hearings. And that
is the reason why, as mentioned by the good sponsor, one of the amendments is
that a plebiscite be conducted before the law takes effect.
"The question I would like to raise and I would like to recall the statement of
our Minority Leader is that, at this time we should not be passing it for a
particular politician.
"In this particular case, it is obvious that this bill is being passed in order that
the additional territory be added to the election of the provincial officials of the
province of Isabela.
"Now, is this for the benefit of any particular politician, Mr. President.
"Senator Sotto. If it is, I am not aware of it, Mr. President.
"Senator Alvarez. Mr. President. dctai

"The President. With the permission of the two gentlemen on the Floor, Senator
Alvarez is recognized.
"Senator Alvarez. As a born inbred citizen of this city, Mr. President, may I share
some information.
"Mr. President, if we open up the election of the city to the provincial leadership,
it will not be to the benefit of the provincial leadership, because the provincial
leadership will then campaign in a bigger territory.
"As a matter of fact, the ones who will benefit from this are the citizens of
Santiago who will now be enfranchised in the provincial electoral process, and
whose children will have the opportunity to grow into provincial leadership. This
is one of the prime reasons why this amendment is being put forward.
"While it is true that there may have been a resolution by the city council, those
who signed the resolution were not the whole of the council. This bill was
sponsored by the congressman of that district who represents a constituency, the
voice of the district.
"I think, Mr. President, in considering which interest is paramount, whose voice
must be heard, and if we have to fathom the interest of the people, the law which
has been crafted here in accordance with the rules should be given account, as we
do give account to many of the legislations coming from the House on local
issues.prcd

"Senator Drilon. Mr. President, the reason why I am raising this question is that,
as Senator Roco said, just two-and-a-half years ago we passed a bill which indeed
disenfranchised if we want to use that phrase the citizens of the City of
Santiago in the matter of the provincial election. Two-and-a-half years after, we
are changing the rule.
"In the original charter, the citizens of the City of Santiago participated in a
plebiscite in order to approve the conversion of the city into an independent city.
I believe that the only way to resolve this issue raised by Senator Roco is again
to subject this issue to another plebiscite as part of the provision of this proposed
bill and as will be proposed by the Committee Chairman as an amendment.
"Thank you very much, Mr. President.
"Senator Alvarez. Mr. President, the Constitution does not require that the change
from an independent to a component city be subjected to a plebiscite.
"Sections 10, 11, 12 of Article X of the 1987 Constitution provides as follows:
'SECTION 10. No province, city, municipality, or barangay may be
created, divided, merged, abolished, or its boundary substantially altered,
except in accordance with the criteria established in the local government
code and subject to approval by a majority of the votes cast in a plebiscite
in the political units directly affected.'LexLib

"This change from an independent city into a component city is none of those
enumerated. So the proposal coming from the House is in adherence to this
constitutional mandate which does not require a plebiscite.

"Senator Sotto. Mr. President, the key word here is 'conversion'. The word
'conversion' appears in that provision wherein we must call a plebiscite. During
the public hearing, the representative of Congressman Abaya was insisting that
this is not a conversion; this is merely a reclassification. But it is clear in the bill.
"We are amending a bill that converts, and we are converting it into a component
city. That is how the members of the committee felt. That is why we have proposed
an amendment to this, and this is to incorporate a plebiscite in as much as there
is no provision on incorporating a plebiscite. Because we would like not only to
give the other people of Santiago a chance or be enfranchised as far as the
leadership of the province is concerned, but also we will give a chance to those
who are opposing it. To them, this is the best compromise. Let the people decide,
instead of the political leaders of Isabela deciding for them.
"Senator Tatad. Mr. President.
"The President. The Majority Leader is recognized.
"Senator Tatad. At this point, Mr. President, I think we can move to close the
period of interpellations.
"The President. Is there any objection? [Silence] There being none, the motion is
approved.
"Senator Tatad. I move that we now consider the committee amendments, Mr.
President.LLphil

"The President. Is there any objection? [Silence] There being none, the motion is
approved.
"Senator Sotto. On page 2, after line 13, insert a new Section 3, as follows:
"SECTION 3. SECTION 49 OF REPUBLIC ACT NO. 7720 IS HEREBY
AMENDED BY DELETING THE ENTIRE SECTION AND IN ITS STEAD
SUBSTITUTE THE FOLLOWING:
"SECTION 49. PLEBISCITE. THE CONVERSION OF THE CITY OF
SANTIAGO INTO A COMPONENT CITY OF THE PROVINCE OF ISABELA
SHALL TAKE EFFECT UPON THE RATIFICATION OF THIS ACT BY A
MAJORITY OF THE PEOPLE OF SAID CITY IN A PLEBISCITE WHICH
SHALL BE HELD FOR THE PURPOSE WITHIN SIXTY (60) DAYS FROM
THE APPROVAL OF THIS ACT. THE COMMISSION ON ELECTIONS
SHALL CONDUCT AND SUPERVISE SUCH PLEBISCITE.
"The President. Is there any objection?
"Senator Enrile. Mr. President.
"The President. Senator Enrile is recognized.
"Senator Enrile. I object to this committee amendment, Mr. President.
"SUSPENSION OF SESSION
"Senator Tatad. May I ask for a one-minute suspension of the session. dctai

"The President. The session is suspended for a few minutes if there is no

objection. [There was none]
"It was 7:54 p.m.
"RESUMPTION OF SESSION
"At 7:57 p.m., the session was resumed.
"The President. The session is resumed.
"Senator Sotto is recognized.
''Senator Sotto. Mr. President, after a very enlightening conversation with the
elders of the Body, I withdraw my amendment.
"The President. The amendment is withdrawn.
"Senator Maceda. Mr. President.
"The President. Senator Maceda is recognized.
"Senator Maceda. We wish to thank the sponsor for the withdrawal of the
amendment.
"Mr. President, with due respect to the Senator from Isabela I am no great fan
of the Senator from Isabela but it so happens that this is a local bill affecting
not only his province but his own city where he is a resident and registered voter.
"So, unless the issue is really a matter of life and death and of national
importance, senatorial courtesy demands that we, as much as possible,
accommodate the request of the Senator from Isabela as we have done on matters
affecting the district of other senators. I need not remind them.Cdpr

"Thank you anyway, Mr. President.

"Senator Alvarez. Mr. President.
"The President. Senator Alvarez is recognized.
"Senator Alvarez. Mr. President, may I express my deepest appreciation for the
statement of the gentleman from Ilocos and Laguna. Whatever he may have said,
the feeling is not mutual. At least for now, I have suddenly become his great fan
for the evening.
"May I put on record, Mr. President, that I campaigned against the cityhood of
Santiago not because I do not want it to be a city but because it had
disenfranchised the young men of my city from aspiring for the leadership of the
province. The town is the gem of the province. How could we extricate the town
from the province?
"But I would like to thank the gentleman, Mr. President, and also the Chairman
of the Committee.
"Senator Tatad. Mr. President.
"The President. The Majority Leader is recognized.
"Senator Tatad. There being no committee amendments, I move that the period
of committee amendments be closed.
"The President. Shall we amend the title of this bill by removing the word
'independent' preceding 'component city'?
"Senator Sotto. No, Mr. President. We are merely citing the title. The main title
of this House Bill No. 8729 is 'An Act Amending Certain Sections of Republic
Act 7720'. The title is the title of Republic Act 7720. So, I do not think that we
should amend that anymore.
"The President. What is the pending motion? Will the gentleman kindly state the
motion? llcd

"Senator Tatad. I move that we close the period of committee amendments.

"The President. Is there any objection? [Silence] There being none, the motion is
approved.
"Senator Tatad. Unless there are any individual amendments, I move that we
close the period of individual amendments.
 "The President. Is there any objection? [Silence] There being none, the period of
individual amendments is closed.
"APPROVAL OF H.B. NO. 8729 ON SECOND READING
"Senator Tatad. Mr. President, I move that we vote on Second Reading on House
Bill No. 8729.
"The President. Is there any objection? [Silence] There being none, we shall now
vote on Second Reading on House Bill No. 8729.
"As many as are in favor of the bill, say aye.
"Several Members. Aye
"As many as are against the bill, say nay. [Silence]
"House Bill No. 8729 is approved on Second Reading."
The debates cannot but raise some quizzical eyebrows on the real purpose for the
downgrading of the city of Santiago. There is all the reason to listen to the voice of
the people of the city via a plebiscite. cdll

In the case of Tan, et al. vs. COMELEC, 15 BP 885 was enacted partitioning the province
of Negros Occidental without consulting its people in a plebiscite. In his concurring
opinion striking down the law as unconstitutional, Chief Justice Teehankee cited the illicit
political purpose behind its enactment, viz:
"The scenario, as petitioners urgently asserted, was 'to have the creation of the
new Province a fait accompli by the time elections are held on February 7, 1986.
The transparent purpose is unmistakably so that the new Governor and other
officials shall by then have been installed in office, ready to function for purposes
of the election for President and Vice President.' Thus, the petitioners reported
after the event: 'With indecent haste, the plebiscite was held; Negros del Norte
was set up and proclaimed by President Marcos as in existence; a new set of
government officials headed by Governor Armando Gustilo was appointed; and,
by the time the elections were held on February 7, 1986, the political machinery
was in place to deliver the 'solid North' to ex-President Marcos. The rest is history.
What happened in Negros del Norte during the elections the unashamed use
of naked power and resources contributed in no small way to arousing 'people's
power' and steel the ordinary citizen to perform deeds of courage and patriotism
that makes one proud to be a Filipino today.
"The challenged Act is manifestly void and unconstitutional. Consequently, all
the implementing acts complained of, viz. the plebiscite, the proclamation of a
new province of Negros del Norte and the appointment of its officials are equally
void. The limited holding of the plebiscite only in the areas of the proposed new
province (as provided by Section 4 of the Act) to the exclusion of the voters of
the remaining areas of the integral province of Negros Occidental (namely, the
three cities of Bacolod, Bago and La Carlota and the Municipalities of Las
Castellana, Isabela, Moises Padilla, Pontevedra, Hinigaran, Himamaylan,
 Kabankalan, Murcia, Valladolid, San Enrique, Ilog, Cauayan, Hinoba-an and
Sipalay and Candoni), grossly contravenes and disregards the mandate of Article
XI, section 3 of the then prevailing 1973 Constitution that no province may be
created or divided or its boundary substantially altered without 'the approval of a
majority of the votes in a plebiscite in the unit or units affected.' It is plain that all
the cities and municipalities of the province of Negros Occidental, not merely
those of the proposed new province, comprise the units affected. It follows that
the voters of the whole and entire province of Negros Occidental have to
participate and give their approval in the plebiscite, because the whole province
is affected by its proposed division and substantial alteration of its boundary. To
limit the plebiscite to only the voters of the areas to be partitioned and seceded
from the province is as absurd and illogical as allowing only the secessionists to
vote for the secession that they demanded against the wishes of the majority and
to nullify the basic principle of majority rule." LLphil

Mr. Justice Mendoza and Mr. Justice Buena also cite two instances when allegedly
independent component cities were downgraded into component cities without need of a
plebiscite. They cite the City of Oroquieta, Misamis Occidental, 16 and the City of San
Carlos, Pangasinan 17 whose charters were amended to allow their people to vote and be
voted upon in the election of officials of the province to which their city belongs without
submitting the amendment to a plebiscite. With due respect, the cities of Oroquieta and
San Carlos are not similarly situated as the city of Santiago. The said two cities then were
not independent component cities unlike the city of Santiago. The two cities were chartered
but were not independent component cities for both were not highly urbanized cities which
alone were considered independent cities at that time. Thus, when the case of San Carlos
City was under consideration by the Senate, Senator Pimentel explained: 18

". . . Senator Pimentel. The bill under consideration, Mr. President, merely
empowers the voters of San Carlos to vote in the elections of provincial officials.
There is no intention whatsoever to downgrade the status of the City of San Carlos
and there is no showing whatsoever that the enactment of this bill will, in any
way, diminish the powers and prerogatives already enjoyed by the City of San
Carlos. In fact, the City of San Carlos as of now, is a component city. It is not a
highly urbanized city. Therefore, this bill merely, as we said earlier, grants the
voters of the city, the power to vote in provincial elections, without in any way
changing the character of its being a component city. It is for this reason that I
vote in favor of this bill."
It was Senator Pimentel who also sponsored the bill 19 allowing qualified voters of the
city of Oroquieta to vote in provincial elections of the province of Misamis
Occidental. In his sponsorship speech, he explained that the right to vote being given
to the people of Oroquieta City was consistent with its status as a component city. 20
Indeed, during the debates, former Senator Neptali Gonzales pointed out the need to
remedy the anomalous situation then obtaining ". . . where voters of one component
city can vote in the provincial election while the voters of another component city
 cannot vote simply because their charters so provide." 21 Thus, Congress amended
other charters of component cities prohibiting their people from voting in provincial
elections. prLL

IN VIEW WHEREOF, the petition is granted. Republic Act No. 8528 is declared
unconstitutional and the writ of prohibition is hereby issued commanding the respondents
to desist from implementing said law.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Kapunan, Panganiban, Pardo, Gonzaga-Reyes and
Ynares-Santiago, JJ., concur.
Vitug, J., please see separate opinion.
Mendoza, J., please see dissenting opinion.
Quisumbing and Purisima, JJ., join Justice Mendoza in his dissent.

Separate Opinions
VITUG, J.:

I share the opinion of the majority of my colleagues that, for the reasons expressed in the
ponencia, a plebiscite is essential in order to render effective the conversion of the City of
Santiago, Isabela, from an independent to a component city. I would not go to the extent,
however, of declaring Republic Act No. 7720 unconstitutional; instead, with due respect,
I take the view that a plebiscite can be held conformably with the provisions of the Local
Government Code: I do not see, in this instance, a serious incompatibility in having
Republic Act No. 7720 stand along with the Local Government Code. cdtai

MENDOZA, J., dissenting:

The issue in this case is whether the conversion of the City of Santiago in Isabela province
from an independent component city to a component city constitutes the creation, division,
merger, abolition, or substantial alteration of the boundary of a city within the
contemplation of Art. X, 10 of the Constitution so as to require the approval of the people
in a plebiscite. The Court, in declaring R.A. No. 8528 unconstitutional for lack of provision
for a plebiscite, does not say that the reclassification of Santiago City as an ordinary
component city constitutes creation, division, merger, abolition, or substantial alteration of
boundary. Nonetheless, the Court today holds that because the reclassification of the city
would result in a "material change in the political and economic rights of the local
government units directly affected as well as the people therein," the approval of the law
in a plebiscite is required.
With all due respect I submit that not every change however "material" and far-reaching
in the classification of a local government unit requires popular approval. Only if the
reclassification involves changes in income, population, and land area of the local
government unit is there a need for such changes to be approved by the people, for then
there would be a creation, division, merger, abolition, or substantial alteration of the
boundary of a local government unit, as the case may be, within the meaning of Art. X,
10 of the Constitution. Thus, the Local Government Code (R.A. No. 7160), in
implementing the constitutional provision in question, states:
SECTION 7. Creation and Conversion. As a general rule, the creation of a
local government unit or its conversion from one level to another level shall be
based on verifiable indicators or viability and projected capacity to provide
services, to wit:LexLib

(a) Income. It must be sufficient, based on acceptable standards, to provide for

all essential government facilities and services and special functions
commensurate with the size of its population, as expected of the local government
unit concerned;
(b) Population. It shall be determined as the total number of inhabitants within
the territorial jurisdiction of the local government unit concerned; and
(c) Land Area. It must be contiguous, unless it comprises two (2) or more
islands or is separated by a local government unit independent of the others;
properly identified by metes and bounds with technical descriptions; and
sufficient to provide for such basic services and facilities to meet the requirements
of its populace.
Compliance with the foregoing indicators shall be attested to by the Department
of Finance (DOF), the National Statistics Office (NSO), and the Lands
Management Bureau (LMB) of the Department of Environment and Natural
Resources (DENR).
SECTION 8. Division and Merger. Division and merger of existing local
government units shall comply with the same requirements herein prescribed for
their creation: Provided, however, That such division shall not reduce the income,
population, or land area of the local government unit or units concerned to less
than the minimum requirements prescribed in this Code: Provided, further, That
the income classification of the original local government unit or units shall not
fall below its current income classification prior to such division.
The income classification of local government units shall be updated within six
(6) months from the effectivity of this Code to reflect the changes in their
financial position resulting from the increased revenues as provided herein.
SECTION 9. Abolition of Local Government Units. A local government unit
may be abolished when its income, population, or land area has been irreversibly
reduced to less than the minimum standards prescribed for its creation under Book
 III of this Code, a certified by the national agencies mentioned in Section 7 hereof
to Congress or to the sanggunian concerned, as the case may be. LLphil

The law or ordinance abolishing a local government unit shall specify the
province, city, municipality, or barangay with which the local government unit
sought to be abolished will be incorporated or merged.
The conversion from an independent component city to a component city involves no such
changes in income, population, or land area. There may be changes in the voting rights of
the residents of the city, the supervision of the city's administration, and the city's share in
the local taxes, as petitioners point out, but such changes do not amount to the creation,
division, merger, abolition, or substantial alteration of the boundary of a local government
unit so as to require a plebiscite for their approval. An independent component city and an
ordinary component city are both component cities, as distinguished from highly urbanized
cities. 1 The only difference between them is that the charters of the independent component
cities prohibit their voters from voting for provincial elective officials and such cities are
independent of the provinces in which they are located. 2 Thus, the Local Government Code
provides:
SECTION 450. Requisites for Creation. (a) A municipality or a cluster of
barangays may be converted into a component city if it has an average annual
income, as certified by the Department of Finance, of at least Twenty million
pesos (P20,000,000.00) for the last two (2) consecutive years based on 1991
constant prices, and if it has either of the following requisites:cdll

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

certified by the Lands Management Bureau; or
(ii) a population of not less than one hundred fifty thousand (150,000) inhabitants,
as certified by the National Statistics Office:
Provided, That, the creation thereof shall not reduce the land area, population,
and income of the original unit or units at the time of said creation to less than the
minimum requirements prescribed herein.
(b) The territorial jurisdiction of a newly-created city shall be properly identified
by metes and bounds. The requirement on land area shall not apply where the city
proposed to be created is composed of one (1) or more islands. The territory need
not be contiguous if it comprises two (2) or more islands.
(c) The average annual income shall include the income accruing to the general
fund, exclusive of special funds, transfers, and nonrecurring income.
SECTION 451. Cities, Classified. A city may either be component or highly
urbanized: Provided, however, That the criteria established in this Code shall not
affect the classification and corporate status of existing cities.
Independent component cities are those component cities whose charters prohibit
their voters from voting for provincial elective officials. Independent component
cities shall be independent of the province. LLjur
 SECTION 452. Highly Urbanized Cities. (a) Cities with a minimum
population of two hundred thousand (200,000.00) inhabitants, as certified by the
National Statistics Office, and with the latest annual income of at least Fifty
Million Pesos (P50,000,000.00) based on 1991 constant prices, as certified by the
city treasurer, shall be classified as highly urbanized cities.
(b) Cities which do not meet the above requirements shall be considered
component cities of the province in which they are geographically located. If a
component city is located within the boundaries of two (2) or more provinces,
such city shall be considered a component of the province of which it used to be
a municipality.

(c) Qualified voters of highly urbanized cities shall remain excluded from voting
for elective provincial officials.
Unless otherwise provided in the Constitution or this Code, qualified voters of
independent component cities shall be governed by their respective charters, as
amended, on the participation of voters in provincial elections.cdll

Qualified voters of cities who acquired the right to vote for elective provincial
officials prior to the classification of said cities as highly urbanized after the
ratification of the Constitution and before the effectivity of this Code, shall
continue to exercise such right.
The Court says that the changes resulting from the reclassification of Santiago City as an
ordinary component city "cannot be considered insubstantial." For one, it is said, its
independence will be diminished because the city mayor will be placed under the
administrative supervision of the provincial governor. For another, the resolutions and
ordinances of the city council will have to be approved by the provincial board of Isabela.
The fact is that whether the City of Santiago is an independent component city or an
ordinary component city, it is subject to administrative supervision, with the only
difference that, as an independent component city, it is under the direct supervision of the
President of the Philippines, whereas, as an ordinary component city, it will be subject to
the supervision of the President through the province. 3 That is hardly a distinction. For the
fact is that under the Constitution, the President of the Philippines exercises general
supervision over all local governments. 4
Nor does it matter that ordinances passed by the city councils of component cities are
subject to review (not approval as the Court says) by the provincial boards for the purpose
of determining whether the ordinances are within the powers of the city councils to enact.
5 For that matter, ordinances passed by the city councils of independent component cities
are likewise subject to review, although by the Office of the President. 6 The reason for this
is to be found in Art. X, 4 of the Constitution which provides:
The President of the Philippines shall exercise general supervision over local
governments. Provinces with respect to component cities and municipalities, and
 cities and municipalities with respect to component barangays shall ensure that
the acts of their component units are within the scope of their prescribed powers
and functions. prLL

In any case, these are not important differences which determine whether the law effecting
them should be approved in a plebiscite. The defining characteristics of a local government
unit are its income, population, and local area, as 450 and 452 of the LGC provide. These
are referred to in 7 of the LGC and its Implementing Rules as the "verifiable indicators of
viability and projected capacity to provide services." Tested by these standards, there is no
change in the City of Santiago requiring the approval of the people in a plebiscite.
The majority states: "It is markworthy that when R.A. No. 7720 upgraded the status of
Santiago City from a municipality to an independent component city, it required the
approval of its people thru a plebiscite called for the purpose. There is neither rhyme nor
reason why this plebiscite should not be called to determine the will of the people of
Santiago City when R.A. No. 8528 downgrades the status of their city." The conversion of
the then Municipality of Santiago in Isabela Province by R.A. No. 7720 was an act of
creation. It was based on the municipality's satisfying the requisites for the creation of a
city as provided in the LGC,to wit:
SECTION 450. Requisites for Creation. (a) A municipality or a cluster of
barangays may be converted into a component city if it has an average annual
income, as certified by the Department of Finance, of at least Twenty million
pesos (P20,000,000.00) for the last two (2) consecutive years based on 1991
constant prices, and if it has either of the following requisites:prcd

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

certified by the Lands Management Bureau; or
(ii) a population of not less than one hundred fifty thousand (150,000) inhabitants,
as certified by the National Statistics Office;
Provided, That, the creation thereof shall not reduce the land area, population,
and income of the original unit or units at the time of said creation to less than the
minimum requirements prescribed herein.
(b) The territorial jurisdiction of a newly-created city shall be properly identified
by metes and bounds. The requirement on land area shall not apply where the city
proposed to be created is composed of one (1) or more islands. The territory need
not be contiguous if it comprises two (2) or more islands.
(c) The average annual income shall include the income accruing to the general
fund, exclusive of special funds, transfers, and nonrecurring income. LibLex

As thus indicated these requisites are based on the "verifiable indicators" of income,
population, and land area and, therefore, the conversion of what was once a municipality
into a city needed approval in a plebiscite. But the conversion of Santiago City from an
independent component city into a component city involves no more than a change in the
right of the people (i.e., the registered voters of the city) to vote for provincial elective
officials.
If an analogy is needed, it is to the reversion of a component city whether independent
or ordinary to the status of a municipality. For then the city is actually abolished and
abolition, as stated in the Art. X, 10 of the Constitution, must be approved by the majority
of the votes cast in a plebiscite. Stated otherwise, when a municipality is converted into a
city, a city is created, and when the city is reverted into a municipality, the city is abolished.
Both acts of creation and abolition require the approval of the people in a plebiscite called
for the purpose. But when an independent component city is converted into a component
city, it is not created into another form, it is not divided, it is not merged with another unit
of local government, it is not abolished, much less is its boundary substantially altered.
Indeed, this is not the first time that an independent component city is converted into a
component city without a plebiscite. The City of Oroquieta, created as an independent
component city in 1969 by R.A. No. 5518, was converted into a component city in 1989
by R.A. No. 6726, while the City of San Carlos, created as an independent component city
in 1965 by R.A. No. 4487, was converted into a component city by R.A. No. 6843 in 1990.
In both cases, the conversion was made without submitting the matter to a plebiscite.
There is, therefore, no reason for requiring that the reclassification of Santiago City as a
component city must be approved by the majority of the votes cast in a plebiscite and for
holding that, because R.A. No. 8528 contains no provision for such plebiscite, it is
unconstitutional. cdasia

It is easy to sympathize with calls for plebiscites as an exercise of direct democracy by the
people. But, although the Constitution declares that "Sovereignty resides in the people and
all government authority emanates from them," it also provides that we are a "republican
State." 7 It is thus a representative form of government that we have. With few exceptions,
we have vested the legislative power in the Congress of the Philippines. 8 This means that
when an act of the people's representatives assembled in Congress is duly passed and
approved by the President in the manner prescribed in the Constitution, the act becomes a
law 9 without the need of approval or ratification by the people in order to be effective. 10
This is the theory of representative government. Such a government is no less democratic
because it is indirect. In some ways it is better than direct government given the complexity
of modern society, let alone the volatility of voters and their susceptibility to manipulation.
In this age of mass communication there is less reason to distrust the judgment of the
people's representatives in Congress on matters such as this and, therefore, no reason to
require the people to manifest their sovereign will, except where this is expressly required
by the Constitution. LLpr

For the foregoing reasons, I vote to dismiss the petition in this case.

BUENA, J., dissenting:

With all due respect to my esteemed colleague, Mr. Justice Reynato S. Puno, whose well-
written ponencia expresses his opinion with clarity, I regret that I am unable to agree that
Republic Act No. 8528 should be declared as unconstitutional for the following reasons:
1. Section 10, Article X of the 1987 Constitution provides that
"Section 10, Article X. 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."cdphil

Section 10 Chapter 2 of the Local Government Code (R.A. No. 7160) provides:
"Section 10, Chapter 2. Plebiscite Requirement. No creation, division, merger,
abolition, or substantial alteration of boundaries of local government units shall
take effect unless approved by a majority of the votes cast in a plebiscite called
for the purpose in the political unit or units directly affected. Said plebiscite shall
be conducted by the Commission on Elections (COMELEC) within one hundred
twenty (120) days from the date of effectivity of the law or ordinance effecting
such action, unless said law or ordinance fixes another date."
In short, conversiondoes not appear in the 1987 Constitution nor in the Section 10, Chapter
2 of the Local Government Code. Surprisingly, Rule II, Article 6, paragraph (f) (1) of the
Implementing Rules of the Local Government Code included conversion in the
enumeration of the modes of changing the status of local government units, thus:

"(f) Plebiscite. (1) No creation, conversion, division, merger, abolition, or

substantial alteration of boundaries of LGUs shall take effect unless approved by
a majority of the votes cast in a plebiscite called for the purpose in the LGU or
LGUs affected. The plebiscite shall be conducted by the Commission on
Elections (COMELEC) within one hundred twenty (120) days from the
effectivity of the law or ordinance prescribing such action, unless said law or
ordinance fixes another date.
xxx xxx xxx." (emphasis supplied)
Other than that, the Local Government Code uses the term "conversion" only in the
following instances: (1) Section 7, which provides that "[a]s a general rule, the creation of
a local government unit or its conversion from one level to another shall be based on
verifiable indicators of viability and projected capacity to provide services, to wit: . . .;" (2)
Section 450, which provides for the requisites for the "conversion" of a municipality or a
cluster of barangays into a component city; and (3) Section 462, which involves the
"conversion" of existing sub-provinces into regular provinces. LLpr

Senator Aquilino Pimentel, Jr. defines 1 "conversion," as "the elevation of an LGU from
one level to another, like converting a municipality to a city or a component city to a highly
urbanized one or the raising of the classification of one municipality, city or province from
a fourth class category to third, second or first." It is my humble opinion therefore that the
requirement of a plebiscite does not apply to the case at bar which does not involve the
upgrading or elevation of Santiago City but a downgrading thereof.
2. I am not convinced that a mere Rule and Regulation intended to implement the Local
Government Code can expand the terms and provisions clearly expressed in the basic law
to be implemented. As aptly contended by the Solicitor General in his Comment on the
petition viz.:
"It is a settled jurisprudence that the power of administrative agencies to
promulgate rules and regulations must be in strict compliance with the legislative
enactment. Thus, in Tayug Rural Bank vs. Central Bank of the Philippines (146
SCRA 129-30), this Honorable Court ruled that in the case of discrepancy
between the basic law and a rule or regulation to implement said law, the basic
law prevails as said rule or regulation can not go beyond the terms and provisions
of the basic law. Neither can such rules and regulations extend or expand the letter
and spirit of the law they seek to implement. (Iglesia ni Kristo vs. Court of
Appeals, 259 SCRA 529)" 2
As a matter of fact, Mr. Justice Puno, in his ponencia in the above cited case of Iglesia ni
Kristo, opined that "(T)his rule is void for it runs smack against the hoary doctrine that
administrative rules and regulations cannot expand the letter and spirit of the law they seek
to enforce. 3
3. The proceedings in the Senate show that the Committee on Local Government, to which
H.B. No. 8729 was referred, reported back to the Senate with the recommendation that it
be approved with the following amendment: prcd

"SECTION 3. Section 49 of Republic Act No. 7720 is hereby amended by

deleting the entire section and in its stead substitute the following:
"SECTION 49. PLEBISCITE. THE CONVERSION OF THE CITY
OF SANTIAGO INTO A COMPONENT CITY OF THE PROVINCE
OF ISABELA SHALL TAKE EFFECT UPON THE RATIFICATION
OF THIS ACT BY A MAJORITY OF THE PEOPLE OF SAID CITY IN
A PLEBISCITE WHICH SHALL BE HELD FOR THE PURPOSE
WITHIN (60) DAYS FROM THE APPROVAL OF THIS ACT. THE
COMMISSION ON ELECTIONS SHALL CONDUCT AND
SUPERVISE SUCH PLEBISCITE."
However, after the deliberations in the Senate, the Committee on Local Government
decided to withdraw the foregoing proposed amendment. Hence, on February 6, 1998, the
Republic Act No. 8528, the constitutionality of which is challenged by the petitioners, was
approved.
Be that as it may, may this Court properly require a plebiscite for the validity of said law
when Congress itself, which had been given the opportunity to include such a requirement,
decided against it? Are we not supplanting our judgment over that of Congress, a co-equal
branch of government entrusted by the Constitution to enact laws? I respectfully submit
that we may not do so without disturbing the balance of power as apportioned and
delineated by the Constitution.
4. I likewise submit that we must consider the ramifications of a declaration of
unconstitutionality of Republic Act No. 8528 on Republic Act No. 6726 (1989) and
Republic Act No. 6843 (1990), respectively allowing the voters of the City of Oroquieta
(Misamis Oriental) and San Carlos City (Pangasinan) to vote and be voted for any of the
respective provincial offices, in effect downgrading them from independent component
cities to component cities. The resulting confusion on the political structures of the local
government units involved would surely be disastrous to the order and stability of these
cities. cda

5. Finally, in a situation where the supposed breach of the constitution is doubtful,

equivocal and, at best, based on argumentative implications, I believe that, as we have ruled
in a plethora of cases 4 , every law has in its favor, the presumption of constitutionality and
in case of doubt, the Court must exert every effort to prevent the invalidation of the law
and the nullification of the will of the legislature that enacted it and the executive that
approved it.
I therefore vote to dismiss the petition.
||| (Miranda v. Aguirre, G.R. No. 133064, [September 16, 1999], 373 PHIL 386-430)
[G.R. No. 73155. July 11, 1986.]

PATRICIO TAN, FELIX FERRER, JUAN M. HAGAD, SERGIO

HILADO, VIRGILIO GASTON, CONCHITA MINAYA, TERESITA
ESTACIO, DESIDERIO DEFERIA, ROMEO GAMBOA, ALBERTO
LACSON, FE HOFILENA, EMILY JISON, NIEVES LOPEZ AND
CECILIA MAGSAYSAY, petitioners, vs. THE COMMISSION ON
ELECTIONS and THE PROVINCIAL TREASURER OF NEGROS
OCCIDENTAL, respondents.

Gamboa & Hofilea Law Office for petitioners.

DECISION

ALAMPAY, J : p

Prompted by the enactment of Batas Pambansa Blg. 885 An Act Creating a New
Province in the Island of Negros to be known as the Province of Negros del Norte, which
took effect on December 3, 1985, Petitioners herein, who are residents of the Province of
Negros Occidental, in the various cities and municipalities therein, on December 23, 1985,
filed with this Court a case for Prohibition for the purpose of stopping respondents
Commission on Elections from conducting the plebiscite which, pursuant to and in
implementation of the aforesaid law, was scheduled for January 3, 1986. LLphil

Said law provides:

"SECTION 1. The Cities of Silay, Cadiz, and San Carlos and the municipalities
of Calatrava, Taboso, Escalante, Sagay, Manapla, Victorias, E.R. Magalona; and
Salvador Benedicto, all in the northern portion of the Island of Negros, are hereby
separated from the province to be known as the Province of Negros del Norte.
"SEC. 2. The boundaries of the new province shall be the southern limits of the
City of Silay, the Municipality of Salvador Benedicto and the City of San Carlos
on the south and the territorial limits of the northern portion to the Island of
Negros on the west, north and east, comprising a territory of 4,019.95 square
kilometers more or less.
"SEC. 3. The seat of government of the new province shall be the City of Cadiz.
"SEC. 4. A plebiscite shall be conducted in the proposed new province which are
the areas affected within a period of one hundred and twenty days from the
approval of this Act. After the ratification of the creation of the Province of
Negros del Norte by a majority of the votes cast in such plebiscite, the President
of the Philippines shall appoint the first officials of the province.
"SEC. 5. The Commission on Elections shall conduct and supervise the plebiscite
herein provided, the expenses for which shall be charged to local funds.
"SEC. 6. This Act shall take effect upon its approval." (Rollo, pp. 23-24)
Petitioners contend that Batas Pambansa Blg. 885 is unconstitutional and it is not in
complete accord with the Local Government Code as in Article XI, Section 3 of our
Constitution, it is expressly mandated that
"Sec. 3. No province, city, municipality or barrio may be created, divided,
merged, abolished, or its boundary substantially altered, except in accordance
with the criteria established in the local government code, and subject to the
approval by a majority of the votes in a plebiscite in the unit or units affected."
Section 197 of the Local Government Code enumerates the conditions which must exist to
provide the legal basis for the creation of a provincial unit and these requisites are:
"SEC. 197. Requisites for Creation. A province may be created if it has a
territory of at least three thousand five hundred square kilometers, a population
of at least five hundred thousand persons, an average estimated annual income,
as certified by the Ministry of Finance, of not less than ten million pesos for the
last three consecutive years, and its creation shall not reduce the population and
income of the mother province or provinces at the time of said creation to less
 than the minimum requirements under this section. The territory need not be
contiguous if it comprises two or more islands.
'The average estimated annual income shall include the income alloted for both
the general and infrastructural funds, exclusive of trust funds, transfers and
nonrecurring income. (Rollo, p. 6)
Due to the constraints brought about by the supervening Christmas holidays during which
the Court was in recess and unable to timely consider the petition, a supplemental pleading
was filed by petitioners on January 4, 1986, averring therein that the plebiscite sought to
be restrained by them was held on January 3, 1986 as scheduled but that there are still
serious issues raised in the instant case affecting the legality, constitutionality and validity
of such exercise which should properly be passed upon and resolved by this Court.
The plebiscite was confined only to the inhabitants of the territory of Negros del Norte,
namely: the Cities of Silay, Cadiz, and San Carlos, and the municipalities of Calatrava,
Taboso, Escalante, Sagay, Manapla, Victorias, E.B. Magalona and Don Salvador
Benedicto. Because of the exclusions of the voters from the rest of the province of Negros
Occidental, petitioners found need to change the prayer of their petition "to the end that the
constitutional issues which they have raised in the action will be ventilated and given final
resolution." At the same time, they asked that the effects of the plebiscite which they sought
to stop be suspended until the Supreme Court shall have rendered its decision on the very
fundamental and far-reaching questions that petitioners have brought out.
Acknowledging in their supplemental petition that supervening events rendered moot the
prayer in their initial petition that the plebiscite scheduled for January 3, 1986, be enjoined,
petitioners plead, nevertheless, that
". . . a writ of Prohibition be issued directed to Respondent Commission on
Elections to desist from issuing official proclamation of the results of the
plebiscite held on January 3, 1986.
"Finding that the exclusion and non-participation of the voters of the Province of
Negros Occidental other than those living within the territory of the new province
of Negros del Norte to be not in accordance with the Constitution, that a writ of
Mandamus be issued, directed to the respondent Commission on Elections, to
schedule the holding of another plebiscite at which all the qualified voters of the
entire Province of Negros Occidental as now existing shall participate, at the same
time making pronouncement that the plebiscite held on January 3, 1986 has no
legal effect, being a patent legal nullity;
"And that a similar writ of Prohibition be issued, directed to the respondent
Provincial Treasurer, to desist from ordering the release of any local funds to
answer for expenses incurred in the holding of such plebiscite until ordered by
the Court." (Rollo, pp. 19-10).
Petitioners further prayed that the respondent COMELEC hold in abeyance the issuance of
any official proclamation of the results of the aforestated plebiscite. dctai
During the pendency of this case, a motion that he be allowed to appear as amicus curiae
in this case (dated December 27, 1985 and filed with the Court on January 2, 1986) was
submitted by former Senator Ambrosio Padilla. Said motion was granted in Our resolution
of January 2, 1986.
Acting on the petition, as well as on the supplemental petition for prohibition with
preliminary injunction with prayer for restraining order, the Court, on January 7, 1986
resolved, without giving due course to the same, to require respondents to comment, not to
file a motion to dismiss. Complying with said resolution, public respondents, represented
by the Office of the Solicitor General, on January 14, 1986, filed their Comment, arguing
therein that the challenged statute Batas Pambansa 885, should be accorded the
presumption of legality. They submit that the said law is not void on its face and that the
petition does not show a clear, categorical and undeniable demonstration of the supposed
infringement of the Constitution. Respondents state that the powers of the Batasang
Pambansa to enact the assailed law is beyond question. They claim that Batas Pambansa
Blg. 885 does not infringe the Constitution because the requisites of the Local Government
Code have been complied with. Furthermore, they submit that this case has now become
moot and academic with the proclamation of the new Province of Negros del Norte.
Respondents argue that the remaining cities and municipalities of the Province of Negros
Occidental not included in the area of the new Province of Negros del Norte, do not fall
within the meaning and scope of the term "unit or units affected", as referred to in Section
3 of Art. XI of our Constitution. On this reasoning, respondents maintain that Batas
Pambansa Blg. 885 does not violate the Constitution, invoking and citing the case of
Governor Zosimo Paredes versus the Honorable Executive Secretary to the President, et
al. (G.R. No. 55628, March 2, 1984 (128 SCRA 61), particularly the pronouncements
therein, hereunder quoted:
"1. Admittedly, this is one of those cases where the discretion of the Court is
allowed considerable leeway. There is indeed an element of ambiguity in the use
of the expression 'unit or units affected'. It is plausible to assert as petitioners do
that when certain Barangays are separated from a parent municipality to form a
new one, all the voters therein are affected. It is much more persuasive, however,
to contend as respondents do that the acceptable construction is for those voters,
who are not from the barangays to be separated, should be excluded in the
plebiscite.
"2. For one thing, it is in accordance with the settled doctrine that between two
possible constructions, one avoiding a finding of unconstitutionality and the other
yielding such a result, the former is to be preferred. That which will save, not that
which will destroy, commends itself for acceptance. After all, the basic
presumption all these years is one of validity. . . .
"3. . . . Adherence to such philosophy compels the conclusion that when there are
indications that the inhabitants of several barangays are inclined to separate from
a parent municipality they should be allowed to do so. What is more logical than
to ascertain their will in a plebiscite called for that purpose. It is they, and they
 alone, who shall constitute the new unit. New responsibilities will be assumed.
New burdens will be imposed. A new municipal corporation will come into
existence. Its birth will be a matter of choice their choice. They should be left
alone then to decide for themselves. To allow other voters to participate will not
yield a true expression of their will. They may even frustrate it. That certainly
will be so if they vote against it for selfish reasons, and they constitute the
majority. That is not to abide by the fundamental principle of the Constitution to
promote local autonomy, the preference being for smaller units. To rule as this
Tribunal does is to follow an accepted principle of constitutional construction,
that in ascertaining the meaning of a particular provision that may give rise to
doubts, the intent of the framers and of the people may be gleaned from provisions
in pari materia."

Respondents submit that said ruling in the aforecited case applies equally with force in the
case at bar. Respondents also maintain that the requisites under the Local Government
Code (P.D. 337) for the creation of the new province of Negros del Norte have all been
duly complied with. Respondents discredit petitioners' allegations that the requisite area of
3,500 square kilometers as so prescribed in the Local Government Code for a new province
to be created has not been satisfied. Petitioners insist that the area which would comprise
the new province of Negros del Norte, would only be about 2,856.56 square kilometers and
which evidently would be lesser than the minimum area prescribed by the governing
statute. Respondents, in this regard, point out and stress that Section 2 of Batas Pambansa
Blg. 885 creating said new province plainly declares that the territorial boundaries of
Negros del Norte comprise an area of 4,019.95 square kilometers, more or less. LLjur

As a final argument, respondents insist that instant petition has been rendered moot and
academic considering that a plebiscite has been already conducted on January 3, 1986; that
as a result thereof, the corresponding certificate of canvass indicated that out of 195,134
total votes cast in said plebiscite, 164,734 were in favor of the creation of Negros del Norte
and 30,400 were against it; and because "the affirmative votes cast represented a majority
of the total votes cast in said plebiscite, the Chairman of the Board of Canvassers
proclaimed the new province which shall be known as "Negros del Norte". Thus,
respondents stress the fact that following the proclamation of Negros del Norte province,
the appointments of the officials of said province created were announced. On these
considerations, respondents urge that this case should be dismissed for having been
rendered moot and academic as the creation of the new province is now a " fait accompli."
In resolving this case, it will be useful to note and emphasize the facts which appear to be
agreed to by the parties herein or stand unchallenged.
Firstly, there is no disagreement that the Provincial Treasurer of the Province of Negros
Occidental has not disbursed, nor was required to disburse any public funds in connection
with the plebiscite held on January 3, 1986 as so disclosed in the Comment to the Petition
filed by the respondent Provincial Treasurer of Negros Occidental dated January 20, 1986
(Rollo, pp. 36-37). Thus, the prayer of the petitioners that said Provincial Treasurer be
directed by this Court to desist from ordering the release of any public funds on account of
such plebiscite should not longer deserve further consideration.
Secondly, in Parliamentary Bill No. 3644 which led to the enactment of Batas Pambansa
Blg. 885 and the creation of the new Province of Negros del Norte, it expressly declared in
Sec. 2 of the aforementioned Parliamentary Bill, the following:
"SEC. 2. The boundaries of the new province shall be the southern limits of the
City of Silay, the Municipality of Salvador Benedicto and the City of San Carlos
on the South and the natural boundaries of the northern portion of the Island of
Negros on the West, North and East, containing an area of 285,656 hectares more
or less." (Emphasis supplied).
However, when said Parliamentary Bill No. 3644 was very quickly enacted into Batas
Pambansa Blg. 885, the boundaries of the new Province of Negros del Norte were defined
therein and its boundaries then stated to be as follows:
"SEC 1. The Cities of Silay, Cadiz, and San Carlos and the municipalities of
Calatrava, Toboso, Escalante. Sagay, Manapla, Victorias, E.R. Magalona; and
Salvador Benedicto, all in the northern portion of the Island of Negros, are hereby
separated from the Province of Negros Occidental and constituted into a new
province to be known as the Province of Negros del Norte.
"SEC. 1. The boundaries of the new province shall be the southern limits of the
City of Silay, the Municipality of Salvador Benedicto and the City of San Carlos
on the south and the territorial limits of the northern portion of the Island of
Negros on the West, North and East, comprising a territory of 4,019.95 square
kilometers more or less."
Equally accepted by the parties is the fact that under the certification issued by Provincial
Treasurer Julian L. Ramirez of the Province of Negros Occidental, dated July 16, 1985, it
was therein certified as follows:
"xxx xxx xxx
"This is to certify that the following cities and municipalities of Negros
Occidental have the land area as indicated hereunder based on the Special Report
No. 3, Philippines 1980, Population, Land Area and Density: 1970, 1975 and
1980 by the National Census and Statistics Office, Manila.
Land Area
(Sq. Km.)
"1. Silay City 214.8
2. E.B. Magalona 113.3
3. Victorias 133.9
4. Manapla 112.9
 5. Cadiz City 516.5
6. Sagay 389.6
7. Escalante 124.0
8. Toboso 123.4
9. Calatrava 504.5
10. San Carlos City 451.3
11. Don Salvador Benedicto (not available)
"This certification is issued upon the request of Dr. Patricio Y. Tan for whatever
purpose it may serve him.
"(SGD.) JULIAN L. RAMIREZ
Provincial Treasurer" (Exh. "C" of Petition,
Rollo, p. 90).
Although in the above certification it is stated that the land area of the relatively new
municipality of Don Salvador Benedicto is not available, it is an uncontradicted fact that
the area comprising Don Salvador municipality, one of the component units of the new
province, was derived from the City of San Carlos and from the Municipality of Calatrava,
Negros Occidental, and added thereto was a portion of about one-fourth the land area of
the town of Murcia, Negros Occidental. It is significant to note the uncontroverted
submission of petitioners that the total land area of the entire municipality of Murcia,
Negros Occidental is only 322.9 square kilometers (Exh. "D", Rollo, p. 91). One-fourth of
this total land area of Murcia that was added to the portions derived from the land area of
Calatrava, Negros Occidental and San Carlos City (Negros Occidental) would constitute,
therefore, only 80.2 square kilometers. This area of 80.2 square kilometers if then added to
2,685.2 square kilometers, representing the total land area of the Cities of Silay, San Carlos
and Cadiz and the Municipalities of E.R. Magalona, Victorias, Manapla, Sagay, Escalante,
Taboso and Calatrava, will result in approximately an area of only 2,765.4 square
kilometers using as basis the Special Report, Philippines 1980, Population, Land Area and
Density: 1970, 1975 and 1980 of the National Census and Statistics Office, Manila (see
Exhibit "C", Rollo, p. 90).
No controversion has been made by respondent with respect to the allegations of petitioners
that the original provision in the draft legislation, Parliamentary Bill No. 3644, reads:
"SEC. 4. A plebiscite shall be conducted in the areas affected within a period of
one hundred and twenty days from the approval of this Act. After the ratification
of the creation of the Province of Negros del Norte by a majority of the votes cast
in such plebiscite, the President shall appoint the first officials of the new
province." cdtai
 However, when Batas Pambansa Blg. 885 was enacted, there was a significant change
in the above provision. The statute, as modified, provides that the requisite plebiscite
"shall be conducted in the proposed new province which are the areas affected."
It is this legislative determination limiting the plebiscite exclusively to the cities and towns
which would comprise the new province that is assailed by the petitioners as violative of
the provisions of our Constitution. Petitioners submit that Sec. 3, ART XI thereof,
contemplates a plebiscite that would be held in the unit or units affected by the creation of
the new province as a result of the consequent division of and substantial alteration of the
boundaries of the existing province. In this instance, the voters in the remaining areas of
the province of Negros Occidental should have been allowed to participate in the
questioned plebiscite.
Considering that the legality of the plebiscite itself is challenged for non-compliance with
constitutional requisites, the fact that such plebiscite had been held and a new province
proclaimed and its officials appointed, the case before Us cannot truly be viewed as already
moot and academic. Continuation of the existence of this newly proclaimed province which
petitioners strongly profess to have been illegally born, deserves to be inquired into by this
Tribunal so that, if indeed, illegality attaches to its creation, the commission of that error
should not provide the very excuse for perpetuation of such wrong. For this Court to yield
to the respondents' urging that, as there has been fait accompli, then this Court should
passively accept and accede to the prevailing situation is an unacceptable suggestion.
Dismissal of the instant petition, as respondents so propose is a proposition fraught with
mischief. Respondents' submission will create a dangerous precedent. Should this Court
decline now to perform its duty of interpreting and indicating what the law is and should
be, this might tempt again those who strut about in the corridors of power to recklessly and
with ulterior motives, create, merge, divide and/or alter the boundaries of political
subdivisions, either brazenly or stealthily, confident that this Court will abstain from
entertaining future challenges to their acts if they manage to bring about a fait accompli.
In the light of the facts and circumstances alluded to by petitioners as attending to the
unusually rapid creation of the instant province of Negros del Norte after a swiftly
scheduled plebiscite, this Tribunal has the duty to repudiate and discourage the commission
of acts which run counter to the mandate of our fundamental law, done by whatever branch
of our government. This Court gives notice that it will not look with favor upon those who
may be hereafter inclined to ram through all sorts of legislative measures and then
implement the same with indecent haste, even if such acts would violate the Constitution
and the prevailing statutes of our land. It is illogical to ask that this Tribunal be blind and
deaf to protests on the ground that what is already done is done. To such untenable
argument the reply would be that, be this so, the Court, nevertheless, still has the duty and
right to correct and rectify the wrong brought to its attention.

On the merits of the case.

Aside from the simpler factual issue relative to the land area of the new province of Negros
del Norte, the more significant and pivotal issue in the present case revolves around in the
interpretation and application in the case at bar of Article XI, Section 3 of the Constitution,
which being brief and for convenience, We again quote:
"SEC. 3. No province, city, municipality or barrio may be created, divided,
merged, abolished, or its boundary substantially altered, except in accordance
with the criteria established in the local government code, and subject to the
approval by a majority of the votes in a plebiscite in the unit or units affected."
It can be plainly seen that the aforecited constitutional provision makes it imperative that
there be first obtained "the approval of a majority of votes in the plebiscite in the unit or
units affected" whenever a province is created, divided or merged and there is substantial
alteration of the boundaries. It is thus inescapable to conclude that the boundaries of the
existing province of Negros Occidental would necessarily be substantially altered by the
division of its existing boundaries in order that there can be created the proposed new
province of Negros del Norte. Plain and simple logic will demonstrate than that two
political units would be affected. The first would be the parent province of Negros
Occidental because its boundaries would be substantially altered. The other affected entity
would be composed of those in the area subtracted from the mother province to constitute
the proposed province of Negros del Norte.
We find no way to reconcile the holding of a plebiscite that should conform to said
constitutional requirement but eliminates the participation of either of these two component
political units. No amount of rhetorical flourishes can justify exclusion of the parent
province in the plebiscite because of an alleged intent on the part of the authors and
implementors of the challenged statute to carry out what is claimed to be a mandate to
guarantee and promote autonomy of local government units. The alleged good intentions
cannot prevail and overrule the cardinal precept that what our Constitution categorically
directs to be done or imposes as a requirement must first be observed, respected and
complied with. No one should be allowed to pay homage to a supposed fundamental policy
intended to guarantee and promote autonomy of local government units but at the same
time transgress, ignore and disregard what the Constitution commands in Article XI
Section 3 thereof. Respondents would be no different from one who hurries to pray at the
temple but then spits at the idol therein.
We find no merit in the submission of the respondents that the petition should be dismissed
because the motive and wisdom in enacting the law may not be challenged by petitioners.
The principal point raised by the petitioners is not the wisdom and motive in enacting the
law but the infringement of the Constitution which is a proper subject of judicial inquiry.
Petitioners' discussion regarding the motives behind the enactment of B.P. Blg. 885 to say
the least, are most enlightening and provoking but are factual issues the Court cannot
properly pass upon in this case. Mention by petitioners of the unexplained changes or
differences in the proposed Parliamentary Bill No. 3644 and the enacted Batas Pambansa
Blg. 885; the swift and surreptitious manner of passage and approval of said law; the abrupt
scheduling of the plebiscite; the reference to news articles regarding the questionable
conduct of the said plebiscite held on January 3, 1986; all serve as interesting reading but
are not the decisive matters which should be reckoned in the resolution of this case.
What the Court considers the only significant submissions lending a little support to
respondents' case is their reliance on the rulings and pronouncements made by this Court
in the case of Governor Zosimo Paredes versus The Honorable Executive Secretary to the
President, et al., G.R. No. 55628, March 2, 1984 (128 SCRA 6). In said case relating to a
plebiscite held to ratify the creation of a new municipality from existing barangays, this
Court upheld the legality of the plebiscite which was participated in exclusively by the
people of the barangay that would constitute the new municipality. cda

This Court is not unmindful of this solitary case alluded to by respondents. What is,
however, highly significant are the prefatory statements therein stating that said case is
"one of those cases where the discretion of the Court is allowed considerable leeway" and
that "there is indeed an element of ambiguity in the use of the expression "unit or units
affected." The ruling rendered in said case was based on a claimed prerogative of the Court
then to exercise its discretion on the matter. It did not resolve the question of how the
pertinent provision of the Constitution should be correctly interpreted.
The ruling in the aforestated case of Paredes vs. The Honorable Executive Secretary, et al.
(supra) should not be taken as a doctrinal or compelling precedent when it is acknowledged
therein that "it is plausible to assert, as petitioners do, that when certain Barangays are
separated from a parent municipality to form a new one, all the voters therein are affected."
It is relevant and most proper to mention that in the aforecited case of Paredes vs. Executive
Secretary, invoked by respondents, We find very lucidly expressed the strong dissenting
view of Justice Vicente Abad Santos, a distinguished member of this Court, as he therein
voiced his opinion, which We hereunder quote:
"2. . . . when the Constitution speaks of "the unit or units affected" it means all of
the people of the municipality if the municipality is to be divided such as in the
case at bar or all of the people of two or more municipalities if there be a merger.
I see no ambiguity in the Constitutional provision."
This dissenting opinion of Justice Vicente Abad Santos is the forerunner of the ruling
which We now consider applicable to the case at bar. In the analogous case of Emilio C.
Lopez, Jr., versus the Honorable Commission on Elections, L-56022, May 31, 1985, 136
SCRA 633, this dissent was reiterated by Justice Abad Santos as he therein assailed as
suffering from a constitutional infirmity a referendum which did not include all the people
of Bulacan and Rizal, when such referendum was intended to ascertain if the people of said
provinces were willing to give up some of their towns to Metropolitan Manila. His
dissenting opinion served as a useful guideline in the instant case.
Opportunity to re-examine the views formerly held in said cases is now afforded the present
Court. The reasons in the mentioned cases invoked by respondents herein were formerly
considered acceptable because of the views then taken that local autonomy would be better
promoted. However, even this consideration no longer retains persuasive value.
The environmental facts in the case before Us readily disclose that the subject matter under
consideration is of greater magnitude with concomitant multifarious complicated
problems. In the earlier case, what was involved was a division of a barangay which is the
smallest political unit in the Local Government Code. Understandably, few and lesser
problems are involved. In the case at bar, creation of a new province relates to the largest
political unit contemplated in Section 3, Art. XI of the Constitution. To form the new
province of Negros del Norte no less than three cities and eight municipalities will be
subtracted from the parent province of Negros Occidental. This will result in the removal
of approximately 2,768.4 square kilometers from the land area of an existing province
whose boundaries will be consequently substantially altered. It becomes easy to realize that
the consequent effects of the division of the parent province necessarily will affect all the
people living in the separate areas of Negros Occidental and the proposed province of
Negros del Norte. The economy of the parent province as well as that of the new province
will be inevitably affected, either for the better or for the worse. Whatever be the case,
either or both of these political groups will be affected and they are, therefore, the unit or
units referred to in Section 3 of Article XI of the Constitution which must be included in
the plebiscite contemplated therein.
It is a well accepted rule that "in ascertaining the meaning of a particular provision that
may give rise to doubts, the intent of the framers and of the people, may be gleaned from
the provisions in pari materia." Parliamentary Bill No. 3644 which proposed the creation
of the new province of Negros del Norte recites in Sec. 4 thereof that "the plebiscite shall
be conducted in the areas affected within a period of one hundred and twenty days from
the approval of this Act." As this draft legislation speaks of "areas," what was
contemplated evidently are plurality of areas to participate in the plebiscite. Logically,
those to be included in such plebiscite would be the people living in the area of the proposed
new province and those living in the parent province. This assumption will be consistent
with the requirements set forth in the Constitution.
We fail to find any legal basis for the unexplained change made when Parliamentary Bill
No. 3644 was enacted into Batas Pambansa Blg. 885 so that it is now provided in said
enabling law that the plebiscite "shall be conducted in the proposed new province which
are the areas affected." We are not disposed to agree that by mere legislative fiat the unit
or units affected referred in the fundamental law can be diminished or restricted by the
Batasang Pambansa to cities and municipalities comprising the new province, thereby
ignoring the evident reality that there are other people necessarily affected.
In the mind of the Court, the change made by those responsible for the enactment of Batas
Pambansa Blg. 885 betrays their own misgivings. They must have entertained
apprehensions that by holding the plebiscite only in the areas of the new proposed province,
this tactic will be tainted with illegality. In anticipation of a possible strong challenge to
the legality of such a plebiscite there was, therefore, deliberately added in the enacted
statute a self-serving phrase that the new province constitutes the area affected. Such
additional statement serves no useful purpose for the same is misleading, erroneous and far
from truth. The remaining portion of the parent province is as much an area affected. The
substantial alteration of the boundaries of the parent province, not to mention the other
adverse economic effects it might suffer, eloquently argue the points raised by the
petitioners.LLpr

Petitioners have averred without contradiction that after the creation of Negros del Norte,
the province of Negros Occidental would be deprived of the long established Cities of
Silay, Cadiz, and San Carlos, as well as the municipality of Victorias. No controversion
has been made regarding petitioners' assertion that the areas of the Province of Negros
Occidental will be diminished by about 285,656 hectares and it will lose seven of the fifteen
sugar mills which contribute to the economy of the whole province. In the language of
petitioners, "to create Negros del Norte, the existing territory and political subdivision
known as Negros Occidental has to be partitioned and dismembered. What was involved
was no 'birth' but "amputation." We agree with the petitioners that in the case of Negros
what was involved was a division, a separation; and consequently, as Sec. 3 of Article XI
of the Constitution anticipates, a substantial alteration of boundary.
As contended by petitioners,
"Indeed, the terms 'created', 'divided', 'merged', 'abolished' as used in the
constitutional provision do not contemplate distinct situation isolated from the
mutually exclusive to each other. A province maybe created where an existing
province is divided or two provinces merged. Such cases necessarily will involve
existing unit or units abolished and definitely the boundary being substantially
altered.
"It would thus be inaccurate to state that where an existing political unit is divided
or its boundary substantially altered, as the Constitution provides, only some and
not all the voters in the whole unit which suffers dismemberment or substantial
alteration of its boundary are affected. Rather, the contrary is true."
It is also Our considered view that even hypothetically assuming that the merits of this case
can depend on the mere discretion that this Court may exercise, nevertheless, it is the
petitioners' case that deserve to be favored.
It is now time for this Court to set aside the equivocations and the indecisive
pronouncements in the adverted case of Paredes vs. the Honorable Executive Secretary, et
al. (supra). For the reasons already here expressed, We now state that the ruling in the two
mentioned cases sanctioning the exclusion of the voters belonging to an existing political
unit from which the new political unit will be derived, from participating in the plebiscite
conducted for the purpose of determining the formation of another new political unit, is
hereby abandoned.
In their supplemental petition, dated January 4, 1986, it is prayed for by petitioners that a
writ of mandamus be issued, directing the respondent Commission on Elections, to
schedule the holding of another plebiscite at which all the qualified voters of the entire
province of Negros Occidental as now existing shall participate and that this Court make a
pronouncement that the plebiscite held on January 3, 1986 has no legal effect for being a
patent nullity.
The Court is prepared to declare the said plebiscite held on January 3, 1986 as null and
void and violative of the provisions of Sec. 3, Article XI of the Constitution. The Court is
not, however, disposed to direct the conduct of a new plebiscite, because We find no legal
basis to do so. With constitutional infirmity attaching to the subject Batas Pambansa Blg.
885 and also because the creation of the new province of Negros del Norte is not in
accordance with the criteria established in the Local Government Code, the factual and
legal basis for the creation of such new province which should justify the holding of another
plebiscite does not exist.
Whatever claim it has to validity and whatever recognition has been gained by the new
province of Negros del Norte because of the appointment of the officials thereof, must now
be erased. That Negros del Norte is but a legal fiction should be announced. Its existence
should be put to an end as quickly as possible, if only to settle the complications currently
attending to its creation. As has been manifested, the parent province of Negros del Norte
has been impleaded as the defendant in a suit filed by the new Province of Negros del
Norte, before the Regional Trial Court of Negros (del Norte), docketed as Civil Case No.
169-C, for the immediate allocation, distribution and transfer of funds by the parent
province to the new province, in an amount claimed to be at least P10,000,000.00.
The final nail that puts to rest whatever pretension there is to the legality of the province
of Negros del Norte is the significant fact that this created province does not even satisfy
the area requirement prescribed in Section 197 of the Local Government Code, as earlier
discussed. prLL

It is of course claimed by the respondents in their Comment to the exhibits submitted by

the petitioners (Exhs. C and D, Rollo, pp. 19 and 91), that the new province has a territory
of 4,019.95 square kilometers, more or less. This assertion is made to negate the proofs
submitted, disclosing that the land area of the new province cannot be more than 3,500
square kilometers because its land area would, at most, be only about 2,856 square
kilometers, taking into account government statistics relative to the total area of the cities
and municipalities constituting Negros del Norte. Respondents insist that when Section 197
of the Local Government Code speaks of the territory of the province to be created and
requires that such territory be at least 3,500 square kilometers, what is contemplated is not
only the land area but also the land and water over which the said province has jurisdiction
and control. It is even the submission of the respondents that in this regard the marginal
sea within the three mile limit should be considered in determining the extent of the
territory of the new province. Such an interpretation is strained, incorrect, and fallacious.
The last sentence of the first paragraph of Section 197 is most revealing. As so stated
therein the "territory need not be contiguous if it comprises two or more islands." The use
of the word territory in this particular provision of the Local Government Code and in the
very last sentence thereof, clearly, reflects that "territory" as therein used, has reference
only to the mass of land area and excludes the waters over which the political unit exercises
control.
Said sentence states that the "territory need not be contiguous." Contiguous means (a) in
physical contact; (b) touching along all or most of one side; (c) near, text, or adjacent
(Webster's New World Dictionary, 1972 Ed., p. 307). "Contiguous", when employed as an
adjective, as in the above sentence, is only used when it describes physical contact, or a
touching of sides of two solid masses of matter. The meaning of particular terms in a statute
may be ascertained by reference to words associated with or related to them in the statute
(Animal Rescue League vs. Assessors, 138 A.L.R., p. 110). Therefore, in the context of
the sentence above, what need not be "contiguous" is the "territory" the physical mass
of land area. There would arise no need for the legislators to use the word contiguous if
they had intended that the term "territory" embrace not only land area but also territorial
waters, It can be safely concluded that the word territory in the first paragraph of Section
197 is meant to be synonymous with "land area" only. The words and phrases used in a
statute should be given the meaning intended by the legislature (82 C.J.S., p. 636). The
sense in which the words are used furnished the rule of construction (In re Winton Lumber
Co., 63 p. 2d., p. 664).
The distinction between "territory" and "land area" which respondents make is an artificial
or strained construction of the disputed provision whereby the words of the statute are
arrested from their plain and obvious meaning and made to bear an entirely different
meaning to justify an absurd or unjust result. The plain meaning in the language in a statute
is the safest guide to follow in construing the statute. A construction based on a forced or
artificial meaning of its words and out of harmony of the statutory scheme is not to be
favored (Helvering vs. Hutchings, 85 L. Ed., p. 909).
It would be rather preposterous to maintain that a province with a small land area but which
has a long, narrow, extended coast line, (such as La Union province) can be said to have a
larger territory than a land-locked province (such as Ifugao or Benguet) whose land area
manifestly exceeds the province first mentioned.
Allegations have been made that the enactment of the questioned state was marred by "dirty
tricks", in the introduction and passing of Parliamentary Bill No. 3644 "in secret haste"
pursuant to sinister designs to achieve "pure and simple gerrymandering"; "that recent
happenings more than amply demonstrate that far from guaranteeing its autonomy it
(Negros del Norte) has become the fiefdom of a local strongman" (Rollo, p. 43; parenthesis
supplied).
It is not for this Court to affirm or reject such matters not only because the merits of this
case can be resolved without need of ascertaining the real motives and wisdom in the
making of the questioned law. No proper challenge on those grounds can also be made by
petitioners in this proceeding. Neither may this Court venture to guess the motives or
wisdom in the exercise of legislative powers. Repudiation of improper or unwise actions
taken by tools of a political machinery rests ultimately, as recent events have shown, on
the electorate and the power of a vigilant people.cdlex

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

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

proclamation of the new province of Negros del Norte, as well as the appointment of the
officials thereof are also declared null and void.
SO ORDERED.
Abad Santos, Feria, Yap, Fernan, Narvasa, Gutierrez, Jr., Cruz and Paras, JJ ., concur.
Teehankee, C .J ., files a separate opinion congratulating his brethren for the Court's
unanimous decision striking down a manifestly unconstitutional Act and illegal plebiscite
and restoring the territorial integrity of the once premier province of Negros Occidental.
Melencio-Herrera, J ., in the result.

Separate Opinions
TEEHANKEE, C .J ., concurring:

I congratulate my brethren for the unanimous decision we issue today striking down an Act
approved in "deep secrecy and inordinate haste" apparently on the last day of session of
the Batasang Pambansa on December 3, 1985 and signed on the same day by the then
President of the authoritarian regime. The Act provided for the partitioning of the province
of Negros Occidental and would substantially alter its boundaries by lopping off the
progressive cities of Silay, Cadiz and San Carlos and municipality of Victorias with seven
other municipalities to constitute the proposed new province of Negros del Norte. Negros
Occidental would thereby lose 4,019.95 square kilometers in area and seven of fifteen sugar
mills which contribute to the economic progress and welfare of the whole province. Cdpr
The discredited Commission on Elections of the time played its customary subservient role
by setting the plebiscite with equal "indecent haste" for January 3, 1986, notwithstanding
that the Act itself provided for an ample period of 120 days from its approval within which
to inform the people of the proposed dismemberment and allow them to freely express and
discuss the momentous issue and cast their vote intelligently. This was learned by
petitioners through an item in the printed media one day before they filed the present rush
petition on December 23, 1985 to seek a restraining order to atop the plebiscite, even as no
printed copies of the Act as finally enacted and approved were available to them and the
Act had not been published, as required by law, for its effectivity. As petitioners ruefully
state: "it was in vain hope" for everything had apparently been timed for the Christmas
holidays; the Court was in Christmas recess and "there was no chance to have their plea
for a restraining order acted upon speedily enough." In fact, it was only on January 7, 1986
that the Court took cognizance of the petition and required respondents' comment.
The scenario, as petitioners urgently asserted, was "to have the creation of the new Province
a fait accompli by the time elections are held on February 7, 1986. The transparent purpose
is unmistakably so that the new Governor and other officials shall by then have been
installed in office, ready to function for purposes of the election for President and Vice-
President." Thus, the petitioners reported after the event: "With indecent haste, the
plebiscite was held; Negros del Norte was set up and proclaimed by President Marcos as
in existence; a new set of government officials headed by Governor Armando Gustilo was
appointed; and, by the time the elections were held on February 7, 1986, the political
machinery was in place to deliver the 'solid North' to ex-President Marcos. The rest is
history. What happened in Negros del Norte during the elections the unashamed use of
naked power and resources contributed in no small way to arousing 'people's power' and
steel the ordinary citizen to perform deeds of courage and patriotism that makes one proud
to be a Filipino today." (Record, pp. 9, 41).
The challenged Act is manifestly void and unconstitutional. Consequently, all the
implementing acts complained of, viz. the plebiscite, the proclamation of a new province
of Negros del Norte and the appointment of its officials are equally void. The limited
holding of the plebiscite only in the areas of the proposed new province (as provided by
Section 4 of the Act) to the exclusion of the voters of the remaining areas of the integral
province of Negros Occidental (namely, the three cities of Bacolod, Bago and La Carlota
and the Municipalities of La Castellana, Isabela, Moises Padilla, Pontevedra, Hinigaran,
Himamaylan, Kabankalan, Murcia, Valladolid, San Enrique, Ilog, Cauayan, Hinoba-an and
Sipalay and Candoni), grossly contravenes and disregards the mandate of Article XI,
section 3 of the then prevailing 1973 Constitution that no province may be created or
divided or its boundary substantially altered without "the approval of a majority of the
votes in a plebiscite in the unit or units affected. " It is plain that all the cities and
municipalities of the province of Negros Occidental, not merely those of the proposed new
province, comprise the units affected. It follows that the voters of the whole and entire
province of Negros Occidental have to participate and give their approval in the plebiscite,
because the whole province is affected by its proposed division and substantial alteration
of its boundary. To limit the plebiscite to only the voters of the areas to be partitioned and
seceded from the province is as absurd and illogical as allowing only the secessionists to
vote for the secession that they demanded against the wishes of the majority and to nullify
the basic principle of majority rule.
The argument of fait accompli viz. that the railroaded plebiscite of January 3, 1986 was
held and can no longer be enjoined and that the new province of Negros del Norte has been
constituted, begs the issue of invalidity of the challenged Act. This Court has always held
that it "does not look with favor upon parties 'racing to beat an injunction or restraining
order' which they have reason to believe might be forthcoming from the Court by virtue of
the filing and pendency of the appropriate petition therefor. Where the restraining order or
preliminary injunction are found to have been properly issued, as in the case at bar,
mandatory writs shall be issued by the Court to restore matters to the status quo ante."
(Banzon v. Cruz, 45 SCRA 475, 506 [1972]). Where, as in this case, there was somehow a
failure to properly issue the restraining order stopping the holding of the illegal plebiscite,
the Court will issue the mandatory writ or judgment to restore matters to the status quo
ante and restore the territorial integrity of the province of Negros Occidental by declaring
the unconstitutionality of the challenged Act and nullifying the invalid proclamation of the
proposed new province of Negros del Norte and the equally invalid appointment of its
officials. cdasia

Batas Pambansa Blg. 885 declared unconstitutional.

||| (Tan v. Commission on Elections, G.R. No. 73155, [July 11, 1986], 226 PHIL 624-651)
[G.R. No. 40243. March 11, 1992.]

CELESTINO TATEL, petitioner, vs. MUNICIPALITY OF VIRAC,

SALVADOR A. SURTIDA, in his capacity as Mayor of Virac,
Catanduanes; GAVINO V. GUERRERO, in his capacity as Vice-
Mayor of Virac, Catanduanes; JOSE T. BUEBOS, in his capacity as
Councilor of Virac, Catanduanes; ANGELES TABLIZO, in his
capacity as Councilor of Virac, Catanduanes; ELPIDIO T. ZAFE, in
his capacity as Councilor of Virac, Catanduanes; MARIANO
ALBERTO, in his capacity as Councilor of Virac, Catanduanes;
JULIA A. GARCIA, in her capacity as Councilor of Virac,
Catanduanes; and PEDRO A. GUERRERO, in his capacity as
Councilor of Virac, Catanduanes, respondents.

Francisco A. Perfecto and Roberto G. Cenon for petitioner.

SYLLABUS
1. ADMINISTRATIVE LAW; MUNICIPAL CORPORATIONS; DEFINED. It is a
settled principle of law that municipal corporations are agencies of the State for the
promotion and maintenance of local self-government and as such are endowed with
police powers in order to effectively accomplish and carry out the declared objects of
their creation. Its authority emanates from the general welfare clause under the
Administrative Code.
2. ID.; ID.; MUNICIPAL ORDINANCE; REQUISITES FOR VALIDITY. For an
ordinance to be valid, it must not only be within the corporate powers of the municipality
to enact but must also be passed according to the procedure prescribed by law, and must
be in consonance with certain well established and basic principles of a substantive
nature. These principles require that a municipal ordinance (1) must not contravene the
Constitution or any statute (2) must not be unfair or oppressive (3) must not be partial or
discriminatory (4) must not prohibit but may regulate trade (5) must be general and
consistent with public policy, and (6) must not be unreasonable. Ordinance No. 13, Series
of 1952, meets these criteria.
3. CONSTITUTIONAL LAW; BILL OF RIGHTS; EQUAL PROTECTION OF LAW;
NOT VIOLATED IN CASE AT BAR. As to the assignment of error, that warehouses
similarly situated as that of petitioner were not prosecuted, suffice it to say that the mere
fact that the municipal authorities of Virac have not proceeded against other warehouses
in the municipality allegedly violating Ordinance No. 13 is no reason to claim that the
ordinance is discriminatory. A distinction must be made between the law itself and the
manner in which said law is implemented by the agencies in charge with its
administration and enforcement. There is no valid reason for the petitioner to complain,
in the absence of proof that the other bodegas mentioned by him are operating in
violation of the ordinance and that complaints have been lodged against the bodegas
concerned without the municipal authorities doing anything about it. The objections
interposed by the petitioner to the validity of the ordinance have not been substantiated.
Its purpose is well within the objectives of sound government. No undue restraint is
placed upon the petitioner or for anybody to engage in trade but merely a prohibition
from storing inflammable products in the warehouses because of the danger of fire to the
lives and properties of the people residing in the vicinity. As far as public policy is
concerned, there can be no better policy than what has been conceived by the municipal
government.
4. REMEDIAL LAW; COURT OF FIRST INSTANCE; HAS ORIGINAL
JURISDICTION FOR CIVIL SUIT FOR ABATEMENT OF NUISANCE. As to
petitioner's contention of want of jurisdiction by the lower court we find no merit in the
same. The case is a simple civil suit for abatement of a nuisance, the original jurisdiction
of which falls under the then Court of First Instance.

DECISION
NOCON, J : p

This is a Petition for Prohibition with Preliminary Injunction with the Court of First
Instance of Catanduanes. filed by appellant, Celestino Tatel, a businessman engaged in
the import and export of abaca and other products against the Municipal Council of
Virac, Catanduanes and its municipal officials enjoining them from enforcing Resolution
No. 29 1 of the Council, declaring the warehouse of petitioner in barrio Sta. Elena of the
said municipality a public nuisance within the purview of Article 694 of the Civil Code
of the Philippines and directing the petitioner to remove and transfer said warehouse to a
more suitable place within two (2) months from receipt of the said resolution. LexLib

It appears from the records that on the basis of complaints received from the residents of
barrio Sta. Elena on March 18, 1966 against the disturbance caused by the operation of
the abaca bailing machine inside the warehouse of petitioner which affected the peace
and tranquility of the neighborhood due to the smoke, obnoxious odor and dust emitted
by the machine, a committee was appointed by the municipal council of Virac to
investigate the matter. The committee noted the crowded nature of the neighborhood with
narrow roads and the surroundings residential houses, so much so that an accidental fire
within the warehouse of petitioner occasioned by a continuance of the activity inside the
warehouse and the storing of inflammable materials created a danger to the lives and
properties of the people within the neighborhood. LLjur

Resultantly, Resolution No. 29 was passed by the Municipal Council of Virac on April
22, 1966 declaring the warehouse owned and operated by petitioner a public nuisance
within the purview of Article 694 of the New Civil Code. 2
His motion for reconsideration having been denied by the Municipal Council of Virac,
petitioner instituted the present petition for prohibition with preliminary injunction.
Respondent municipal officials contend that petitioner's warehouse was constructed in
violation of Ordinance No. 13, series of 1952, prohibiting the construction of warehouses
near a block of houses either in the poblacion or barrios without maintaining the
necessary distance of 200 meters from said block of houses to avoid loss of lives and
properties by accidental fire.
On the other hand, petitioner contends that said ordinance is unconstitutional, contrary to
the due process and equal protection clause of the Constitution and null and void for not
having been passed in accordance with law.
The issue then boils down on whether petitioner's warehouse is a nuisance within the
meaning of Article 694 of the Civil Code and whether Ordinance No. 13, S. 1952 of the
Municipality of Virac is unconstitutional and void.
In a decision dated September 18, 1969, the court a quo ruled as follows:
 "1. The warehouse in question was legally constructed under a valid permit
issued by the municipality of Virac in accordance with existing regulations and
may not be destroyed or removed from its present location;
2. Ordinance No. 13, series of 1952, is a legitimate and valid exercise of police
power by the Municipal Council of Virac is not (sic) unconstitutional and void
as claimed by the petitioner;
3. The storage by the petitioner of abaca and copra in the warehouse is not only
in violation of the provisions of the ordinance but poses a grave danger to the
safety of the lives and properties of the residents of the neighborhood due to
accidental fire and constitutes a public nuisance under the provisions of Article
694 of the Civil Code of the Philippines and may be abated;
4. Accordingly, the petitioner is hereby directed to remove from the said
warehouse all abaca and copra and other inflammable articles stored therein
which are prohibited under the provisions of Ordinance No. 13, within a period
of two (2) months from the time this decision becomes final and that henceforth,
the petitioner is enjoined from storing such prohibited articles in the warehouse.
With costs against petitioner".
Seeking appellate review, petitioner raised as errors of the court a quo:
1. In holding that Ordinance No. 13, series of 1952, of the Municipality of
Virac, Catanduanes, is a legitimate and valid exercise of police power of the
Municipal Council, and therefore, constitutional;
2. In giving the ordinance a meaning other than and different from what it
provided by declaring that petitioner violated the same by using the warehouse
for storage of abaca and copra when what is prohibited and penalized by the
ordinance is the construction of warehouses.
3. In refusing to take judicial notice of the fact that in the municipality, there are
numerous establishments similarly situated as appellant's warehouses but which
are not prosecuted.
We find no merit in the Petition.
Ordinance No. 13, series of 1952, was passed by the Municipal Council of Virac in the
exercise of its police power. It is a settled principal of law that municipal corporations are
agencies of the State for the promotion and maintenance of local self-government and as
such are endowed with police powers in order to effectively accomplish and carry out the
declared objects of their creation. 3 Its authority emanates from the general welfare clause
under the Administrative Code, which reads:
"The municipal council shall enact such ordinance and make such regulations,
not repugnant to law, as may be necessary to carry into effect and discharge the
powers and duties conferred upon it by law and such as shall seem necessary
and proper to provide for the health and safety, promote the prosperity, improve
 the morals, peace, good order, comfort and convenience of the municipality and
the inhabitants thereof, and for the protection of property therein." 4
For an ordinance to be valid, it must not only be within the corporate powers of the
municipality to enact but must also be passed according to the procedure prescribed by
law, and must be in consonance with certain well established and basic principles of a
substantive nature. These principles require that a municipal ordinance (1) must not
contravene the Constitution or any statue (2) must not be unfair or oppressive (3) must
not be partial or discriminatory (4) must not prohibit but may regulate trade (5) must be
general and consistent with public policy, and (6) must not be unreasonable. 5 Ordinance
No. 13, Series of 1952, meets these criteria. Cdpr

As to the petitioner's second assignment of error, the trial court did not give the ordinance
in question a meaning other than what it says. Ordinance No. 13 passed by the Municipal
Council of Virac on December 29, 1952, 6 reads:
"AN ORDINANCE STRICTLY PROHIBITING THE CONSTRUCTION OF
WAREHOUSE IN ANY FORM NEAR A BLOCK OF HOUSES EITHER IN
POBLACION OR BARRIO WITH NECESSARY DISTANCE TO AVOID
GREAT LOSSES OF PROPERTY AND LIVES BY FIRE ACCIDENT".
Section 1 provides:
"It is strictly prohibited to construct warehouses in any form to any person,
persons, entity, corporation or merchants, wherein to keep or store copra, hemp,
gasoline, petroleum, alcohol, crude oil, oil of turpentine and the like products or
materials if not within the distance of 200 meters from a block of houses either
in the poblacion or barrios to avoid great losses of properties inclusive lives by
fire accident."
Section 2 provides: 7
"Owners of warehouses in any form, are hereby given advice to remove their
said warehouses this ordinance by the Municipal Council, provided however,
that if those warehouses now in existence should no longer be utilized as such
warehouse for the above-described products in Section 1 of this ordinance after
a lapse of time given for the removal of the said warehouses now in existence,
same warehouse shall be exempted from the spirit of the provision of section 1
of this ordinance, provided further, that these warehouses now in existence,
shall in the future be converted into non-inflammable products and materials
warehouses."
In spite of its fractured syntax, basically, what is regulated by the ordinance is the
construction of warehouses wherein inflammable materials are stored where such
warehouses are located at a distance of 200 meters from a block of houses and not the
construction per se of a warehouse. The purpose is to avoid the loss of life and property
in case of fire which is one of the primordial obligation of government.
This was also the observation of the trial court:
"A casual glance of the ordinance at once reveals a manifest disregard of the
elemental rules of syntax. Experience, however, will show that this is not
uncommon in law making bodies in small towns where local authorities and in
particular the persons charged with the drafting and preparation of municipal
resolutions and ordinances lack sufficient education and training and are not
well grounded even on the basic and fundamental elements of the English
language commonly used throughout the country in such matters. Nevertheless,
if one scrutinizes the terms of the ordinance, it is clear that what is prohibited is
the construction of warehouses by any person, entity or corporation wherein
copra, hemp, gasoline and other inflammable products mentioned in Section 1
may be stored unless at a distance of not less than 200 meters from a block of
houses either in the poblacion or barrios in order to avoid loss of property and
life due to fire. Under Section 2, existing warehouses for the storage of the
prohibited articles were given one year after the approval of the ordinance
within which to remove them but were allowed to remain in operation if they
had ceased to store such prohibited articles.
The ambiguity therefore is more apparent than real and springs from simple
error in grammatical construction but otherwise, the meaning and intent is clear
that what is prohibited is the construction or maintenance of warehouses for the
storage of inflammable articles at a distance within 200 meters from a block of
houses either in the poblacion or in the barrios. And the purpose of the
ordinance is to avoid loss of life and property in case of accidental fire which is
one of the primordial and basic obligation of any government." 8
Clearly, the lower court did NOT add meaning other than or different from what provided
in the ordinance in question. It merely stated the purpose of the ordinance and what it
intends to prohibit to accomplish its purpose.
As to the third, assignment of error, that warehouses similarly situated as that of
petitioner were not prosecuted, suffice it to say that the mere fact that the municipal
authorities of Virac have not proceeded against other warehouses in the municipality
allegedly violating Ordinance No. 13 is no reason to claim that the ordinance is
discriminatory. A distinction must be made between the law itself and the manner in
which said law is implemented by the agencies in charge with its administration and
enforcement. There is no valid reason for the petitioner to complain, in the absence of
proof that the other bodegas mentioned by him are operating in violation of the ordinance
and that complaints have been lodged against the bodegas concerned without the
municipal authorities doing anything about it.
The objections interposed by the petitioner to the validity of the ordinance have not been
substantiated. Its purpose is well within the objectives of sound government. No undue
restraint is placed upon the petitioner or for anybody to engage in trade but merely a
prohibition from storing inflammable products in the warehouse because of the danger of
fire to the lives and properties of the people residing in the vicinity. As far as public
policy is concerned, there can be no better policy than what has been conceived by the
municipal government.
As to petitioner's contention of want of jurisdiction by the lower court we find no merit,
in the same. The case is a simple civil suit for abatement of a nuisance, the original
jurisdiction of which falls under the then Court of First Instance.
WHEREFORE, for lack of merit, the petition is hereby DISMISSED. Costs against
petitioner. cdasia

SO ORDERED.
||| (Tatel v. Municipality of Virac, G.R. No. 40243, [March 11, 1992], 283 PHIL 983-991)
[G.R. No. 138810. September 29, 2004.]

BATANGAS CATV, INC., petitioner, vs. THE COURT OF

APPEALS, THE BATANGAS CITY SANGGUNIANG
PANLUNGSOD and BATANGAS CITY MAYOR, respondents.

DECISION

SANDOVAL-GUTIERREZ, J : p

In the late 1940s, John Walson, an appliance dealer in Pennsylvania, suffered a decline in
the sale of television (tv) sets because of poor reception of signals in his community.
Troubled, he built an antenna on top of a nearby mountain. Using coaxial cable lines, he
distributed the tv signals from the antenna to the homes of his customers. Walson's
innovative idea improved his sales and at the same time gave birth to a new
telecommunication system the Community Antenna Television (CATV) or Cable
Television. 1
This technological breakthrough found its way in our shores and, like in its country of
origin, it spawned legal controversies, especially in the field of regulation. The case at bar
is just another occasion to clarify a shady area. Here, we are tasked to resolve the inquiry
may a local government unit (LGU) regulate the subscriber rates charged by CATV
operators within its territorial jurisdiction?
This is a petition for review on certiorari filed by Batangas CATV, Inc. (petitioner
herein) against the Sangguniang Panlungsod and the Mayor of Batangas City
(respondents herein) assailing the Court of Appeals (1) Decision 2 dated February 12,
1999 and (2) Resolution 3 dated May 26, 1999, in CA-G.R. CV No. 52361. 4 The
Appellate Court reversed and set aside the Judgment 5 dated October 29, 1995 of the
Regional Trial Court (RTC), Branch 7, Batangas City in Civil Case No. 4254, 6 holding
that neither of the respondents has the power to fix the subscriber rates of CATV
operators, such being outside the scope of the LGU's power.
The antecedent facts are as follows: SEAHID

On July 28, 1986, respondent Sangguniang Panlungsod enacted Resolution No. 210 7
granting petitioner a permit to construct, install, and operate a CATV system in Batangas
City. Section 8 of the Resolution provides that petitioner is authorized to charge its
subscribers the maximum rates specified therein, "provided, however, that any increase
of rates shall be subject to the approval of the Sangguniang Panlungsod." 8
Sometime in November 1993, petitioner increased its subscriber rates from P88.00 to
P180.00 per month. As a result, respondent Mayor wrote petitioner a letter 9 threatening
to cancel its permit unless it secures the approval of respondent Sangguniang
Panlungsod, pursuant to Resolution No. 210.
Petitioner then filed with the RTC, Branch 7, Batangas City, a petition for injunction
docketed as Civil Case No. 4254. It alleged that respondent Sangguniang Panlungsod has
no authority to regulate the subscriber rates charged by CATV operators because under
Executive Order No. 205, the National Telecommunications Commission (NTC) has the
sole authority to regulate the CATV operation in the Philippines.
On October 29, 1995, the trial court decided in favor of petitioner, thus:
"WHEREFORE, as prayed for, the defendants, their representatives, agents,
deputies or other persons acting on their behalf or under their instructions, are
hereby enjoined from canceling plaintiff's permit to operate a Cable Antenna
Television (CATV) system in the City of Batangas or its environs or in any
manner, from interfering with the authority and power of the National
Telecommunications Commission to grant franchises to operate CATV systems
to qualified applicants, and the right of plaintiff in fixing its service rates which
needs no prior approval of the Sangguniang Panlungsod of Batangas City.
The counterclaim of the plaintiff is hereby dismissed. No pronouncement as to
costs.
IT IS SO ORDERED." 10
The trial court held that the enactment of Resolution No. 210 by respondent violates the
State's deregulation policy as set forth by then NTC Commissioner Jose Luis A. Alcuaz
in his Memorandum dated August 25, 1989. Also, it pointed out that the sole agency of
the government which can regulate CATV operation is the NTC, and that the LGUs
cannot exercise regulatory power over it without appropriate legislation. aIcCTA

Unsatisfied, respondents elevated the case to the Court of Appeals, docketed as CA-G.R.
CV No. 52361.
On February 12, 1999, the Appellate Court reversed and set aside the trial court's
Decision, ratiocinating as follows:
"Although the Certificate of Authority to operate a Cable Antenna Television
(CATV) System is granted by the National Telecommunications Commission
pursuant to Executive Order No. 205, this does not preclude the Sangguniang
Panlungsod from regulating the operation of the CATV in their locality under
the powers vested upon it by Batas Pambansa Bilang 337, otherwise known as
the Local Government Code of 1983. Section 177 (now Section 457 paragraph
3(ii) of Republic Act 7160) provides:
'Section 177. Powers and Duties. The Sangguniang Panlungsod shall:
a) Enact such ordinances as may be necessary to carry into effect and
discharge the responsibilities conferred upon it by law, and such as shall
be necessary and proper to provide for health and safety, comfort and
convenience, maintain peace and order, improve the morals, and
promote the prosperity and general welfare of the community and the
inhabitants thereof, and the protection of property therein;
xxx xxx xxx
d) Regulate, fix the license fee for, and tax any business or profession
being carried on and exercised within the territorial jurisdiction of the
city, except travel agencies, tourist guides, tourist transports, hotels,
resorts, de luxe restaurants, and tourist inns of international standards
which shall remain under the licensing and regulatory power of the
Ministry of Tourism which shall exercise such authority without
infringement on the taxing and regulatory powers of the city
government;'
Under cover of the General Welfare Clause as provided in this section, Local
Government Units can perform just about any power that will benefit their
constituencies. Thus, local government units can exercise powers that are: (1)
expressly granted; (2) necessarily implied from the power that is expressly
granted; (3) necessary, appropriate or incidental for its efficient and effective
governance; and (4) essential to the promotion of the general welfare of their
inhabitants. (Pimentel, The Local Government Code of 1991, p. 46)
Verily, the regulation of businesses in the locality is expressly provided in the
Local Government Code. The fixing of service rates is lawful under the General
Welfare Clause. IDSEAH

Resolution No. 210 granting appellee a permit to construct, install and operate a
community antenna television (CATV) system in Batangas City as quoted
earlier in this decision, authorized the grantee to impose charges which cannot
be increased except upon approval of the Sangguniang Bayan. It further
provided that in case of violation by the grantee of the terms and
conditions/requirements specifically provided therein, the City shall have the
right to withdraw the franchise.
Appellee increased the service rates from EIGHTY EIGHT PESOS (P88.00) to
ONE HUNDRED EIGHTY PESOS (P180.00) (Records, p. 25) without the
 approval of appellant. Such act breached Resolution No. 210 which gives
appellant the right to withdraw the permit granted to appellee." 11
Petitioner filed a motion for reconsideration but was denied. 12
Hence, the instant petition for review on certiorari anchored on the following
assignments of error:
"I
THE COURT OF APPEALS ERRED IN HOLDING THAT THE GENERAL
WELFARE CLAUSE of the LOCAL GOVERNMENT CODE AUTHORIZES
RESPONDENT SANGGUNIANG PANLUNGSOD TO EXERCISE THE
REGULATORY FUNCTION SOLELY LODGED WITH THE NATIONAL
TELECOMMUNICATIONS COMMISSION UNDER EXECUTIVE ORDER
NO. 205, INCLUDING THE AUTHORITY TO FIX AND/OR APPROVE
THE SERVICE RATES OF CATV OPERATORS; AND
II
THE COURT OF APPEALS ERRED IN REVERSING THE DECISION
APPEALED FROM AND DISMISSING PETITIONER'S COMPLAINT." 13
Petitioner contends that while Republic Act No. 7160, the Local Government Code of
1991, extends to the LGUs the general power to perform any act that will benefit their
constituents, nonetheless, it does not authorize them to regulate the CATV operation.
Pursuant to E.O. No. 205, only the NTC has the authority to regulate the CATV
operation, including the fixing of subscriber rates.TAaHIE

Respondents counter that the Appellate Court did not commit any reversible error in
rendering the assailed Decision. First, Resolution No. 210 was enacted pursuant to
Section 177(c) and (d) of Batas Pambansa Bilang 337, the Local Government Code of
1983, which authorizes LGUs to regulate businesses. The term "businesses" necessarily
includes the CATV industry. And second, Resolution No. 210 is in the nature of a
contract between petitioner and respondents, it being a grant to the former of a franchise
to operate a CATV system. To hold that E.O. No. 205 amended its terms would violate
the constitutional prohibition against impairment of contracts. 14
The petition is impressed with merit.
Earlier, we posed the question may a local government unit (LGU) regulate the
subscriber rates charged by CATV operators within its territorial jurisdiction? A review
of pertinent laws and jurisprudence yields a negative answer.
President Ferdinand E. Marcos was the first one to place the CATV industry under the
regulatory power of the national government. 15 On June 11, 1978, he issued Presidential
Decree (P.D.) No. 1512 16 establishing a monopoly of the industry by granting Sining
Makulay, Inc., an exclusive franchise to operate CATV system in any place within the
Philippines. Accordingly, it terminated all franchises, permits or certificates for the
operation of CATV system previously granted by local governments or by any
instrumentality or agency of the national government. 17 Likewise, it prescribed the
subscriber rates to be charged by Sining Makulay, Inc. to its customers. 18

On July 21, 1979, President Marcos issued Letter of Instruction (LOI) No. 894 vesting
upon the Chairman of the Board of Communications direct supervision over the
operations of Sining Makulay, Inc. Three days after, he issued E.O. No. 546 19 integrating
the Board of Communications 20 and the Telecommunications Control Bureau 21 to form
a single entity to be known as the "National Telecommunications Commission." Two of
its assigned functions are:DEScaT

"a. Issue Certificate of Public Convenience for the operation of communications

utilities and services, radio communications systems, wire or wireless telephone
or telegraph systems, radio and television broadcasting system and other similar
public utilities;
b. Establish, prescribe and regulate areas of operation of particular operators
of public service communications; and determine and prescribe charges or
rates pertinent to the operation of such public utility facilities and services
except in cases where charges or rates are established by international bodies or
associations of which the Philippines is a participating member or by bodies
recognized by the Philippine Government as the proper arbiter of such charges
or rates;"
Although Sining Makulay Inc.'s exclusive franchise had a life term of 25 years, it was cut
short by the advent of the 1986 Revolution. Upon President Corazon C. Aquino's
assumption of power, she issued E.O. No. 205 22 opening the CATV industry to all
citizens of the Philippines. It mandated the NTC to grant Certificates of Authority to
CATV operators and to issue the necessary implementing rules and regulations.
On September 9, 1997, President Fidel V. Ramos issued E.O. No. 436 23 prescribing
policy guidelines to govern CATV operation in the Philippines. Cast in more definitive
terms, it restated the NTC's regulatory powers over CATV operations, thus:
"SECTION 2. The regulation and supervision of the cable television industry in
the Philippines shall remain vested solely with the National
Telecommunications Commission (NTC).
SECTION 3. Only persons, associations, partnerships, corporations or
cooperatives, granted a Provisional Authority or Certificate of Authority by the
Commission may install, operate and maintain a cable television system or
render cable television service within a service area."
Clearly, it has been more than two decades now since our national government, through
the NTC, assumed regulatory power over the CATV industry. Changes in the political
arena did not alter the trend. Instead, subsequent presidential issuances further reinforced
the NTC's power. Significantly, President Marcos and President Aquino, in the exercise
of their legislative power, issued P.D. No. 1512, E.O. No. 546 and E.O. No. 205. Hence,
they have the force and effect of statutes or laws passed by Congress. 24 That the
regulatory power stays with the NTC is also clear from President Ramos' E.O. No. 436
mandating that the regulation and supervision of the CATV industry shall remain vested
"solely" in the NTC. Black's Law Dictionary defines "sole" as "without another or
others." 25 The logical conclusion, therefore, is that in light of the above laws and E.O.
No. 436,the NTC exercises regulatory power over CATV operators to the exclusion of
other bodies. SEHaDI

But, lest we be misunderstood, nothing herein should be interpreted as to strip LGUs of

their general power to prescribe regulations under the general welfare clause of the Local
Government Code. It must be emphasized that when E.O. No. 436 decrees that the
"regulatory power" shall be vested "solely" in the NTC, it pertains to the "regulatory
power" over those matters which are peculiarly within the NTC's competence, such as,
the: (1) determination of rates, (2) issuance of "certificates of authority, (3) establishment
of areas of operation, (4) examination and assessment of the legal, technical and financial
qualifications of applicant operators, (5) granting of permits for the use of frequencies,
(6) regulation of ownership and operation, (7) adjudication of issues arising from its
functions, and (8) other similar matters. 26 Within these areas, the NTC reigns supreme as
it possesses the exclusive power to regulate a power comprising varied acts, such as
"to fix, establish, or control; to adjust by rule, method or established mode; to direct by
rule or restriction; or to subject to governing principles or laws." 27
Coincidentally, respondents justify their exercise of regulatory power over petitioner's
CATV operation under the general welfare clause of the Local Government Code of
1983. The Court of Appeals sustained their stance.
There is no dispute that respondent Sangguniang Panlungsod, like other local legislative
bodies, has been empowered to enact ordinances and approve resolutions under the
general welfare clause of B.P. Blg. 337, the Local Government Code of 1983. That it
continues to posses such power is clear under the new law, R.A. No. 7160 (the Local
Government Code of 1991).Section 16 thereof provides:
"SECTION 16. General Welfare. Every local government unit shall exercise
the powers expressly granted, those necessarily implied therefrom, as well as
powers necessary, appropriate, or incidental for its efficient and effective
governance, and those which are essential to the promotion of the general
welfare. Within their respective territorial jurisdictions, local government units
shall ensure and support, among others, the preservation and enrichment of
culture, promote health and safety, enhance the right of the people to a balanced
ecology, encourage and support the development of appropriate and self-reliant,
scientific and technological capabilities, improve public morals, enhance
economic prosperity and social justice, promote full employment among their
residents, maintain peace and order, and preserve the comfort and convenience
of their inhabitants."
In addition, Section 458 of the same Code specifically mandates:
"SECTION 458. Powers, Duties, Functions and Compensation. (a) The
Sangguniang Panlungsod, as the legislative body of the city, shall enact
ordinances, approve resolutions and appropriate funds for the general welfare
of the city and its inhabitants pursuant to Section 16 of this Code and in the
proper exercise of the corporate powers of the city as provided for under Section
22 of this Code, . . ."
The general welfare clause is the delegation in statutory form of the police power of the
State to LGUs. 28 Through this, LGUs may prescribe regulations to protect the lives,
health, and property of their constituents and maintain peace and order within their
respective territorial jurisdictions. Accordingly, we have upheld enactments providing,
for instance, the regulation of gambling, 29 the occupation of rig drivers, 30 the installation
and operation of pinball machines, 31 the maintenance and operation of cockpits, 32 the
exhumation and transfer of corpses from public burial grounds, 33 and the operation of
hotels, motels, and lodging houses 34 as valid exercises by local legislatures of the police
power under the general welfare clause.
Like any other enterprise, CATV operation may be regulated by LGUs under the general
welfare clause. This is primarily because the CATV system commits the indiscretion of
crossing public properties. (It uses public properties in order to reach subscribers.) The
physical realities of constructing CATV system the use of public streets, rights of ways,
the founding of structures, and the parceling of large regions allow an LGU a certain
degree of regulation over CATV operators. 35 This is the same regulation that it exercises
over all private enterprises within its territory.
But, while we recognize the LGUs' power under the general welfare clause, we cannot
sustain Resolution No. 210. We are convinced that respondents strayed from the well
recognized limits of its power. The flaws in Resolution No. 210 are: (1) it violates the
mandate of existing laws and (2) it violates the State's deregulation policy over the
CATV industry.
I.
Resolution No. 210 is an enactment of an LGU acting only as agent of the national
legislature. Necessarily, its act must reflect and conform to the will of its principal. To
test its validity, we must apply the particular requisites of a valid ordinance as laid down
by the accepted principles governing municipal corporations. 36
Speaking for the Court in the leading case of United States vs. Abendan, 37 Justice
Moreland said: "An ordinance enacted by virtue of the general welfare clause is valid,
unless it contravenes the fundamental law of the Philippine Islands, or an Act of the
Philippine Legislature, or unless it is against public policy, or is unreasonable,
oppressive, partial, discriminating, or in derogation of common right." In De la Cruz vs.
Paraz, 38 we laid the general rule "that ordinances passed by virtue of the implied power
found in the general welfare clause must be reasonable, consonant with the general
powers and purposes of the corporation, and not inconsistent with the laws or policy of
the State."ITECSH

The apparent defect in Resolution No. 210 is that it contravenes E.O. No. 205 and E.O.
No. 436 insofar as it permits respondent Sangguniang Panlungsod to usurp a power
exclusively vested in the NTC, i.e., the power to fix the subscriber rates charged by
CATV operators. As earlier discussed, the fixing of subscriber rates is definitely one of
the matters within the NTC's exclusive domain.
In this regard, it is appropriate to stress that where the state legislature has made
provision for the regulation of conduct, it has manifested its intention that the subject
matter shall be fully covered by the statute, and that a municipality, under its general
powers, cannot regulate the same conduct. 39 In Keller vs. State, 40 it was held that:
"Where there is no express power in the charter of a municipality authorizing it to adopt
ordinances regulating certain matters which are specifically covered by a general
statute, a municipal ordinance, insofar as it attempts to regulate the subject which is
completely covered by a general statute of the legislature, may be rendered invalid. . . .
Where the subject is of statewide concern, and the legislature has appropriated the field
and declared the rule, its declaration is binding throughout the State." A reason
advanced for this view is that such ordinances are in excess of the powers granted to the
municipal corporation. 41

Since E.O. No. 205, a general law, mandates that the regulation of CATV operations
shall be exercised by the NTC, an LGU cannot enact an ordinance or approve a resolution
in violation of the said law.
It is a fundamental principle that municipal ordinances are inferior in status and
subordinate to the laws of the state. An ordinance in conflict with a state law of general
character and statewide application is universally held to be invalid. 42 The principle is
frequently expressed in the declaration that municipal authorities, under a general grant
of power, cannot adopt ordinances which infringe the spirit of a state law or repugnant to
the general policy of the state. 43 In every power to pass ordinances given to a
municipality, there is an implied restriction that the ordinances shall be consistent with
the general law. 44 In the language of Justice Isagani Cruz (ret.), this Court, in Magtajas
vs. Pryce Properties Corp., Inc., 45 ruled that:
"The rationale of the requirement that the ordinances should not contravene a
statute is obvious. Municipal governments are only agents of the national
government. Local councils exercise only delegated legislative powers
conferred on them by Congress as the national lawmaking body. The delegate
cannot be superior to the principal or exercise powers higher than those of the
latter. It is a heresy to suggest that the local government units can undo the acts
of Congress, from which they have derived their power in the first place, and
negate by mere ordinance the mandate of the statute.
 'Municipal corporations owe their origin to, and derive their powers and
rights wholly from the legislature. It breathes into them the breath of
life, without which they cannot exist. As it creates, so it may destroy. As
it may destroy, it may abridge and control. Unless there is some
constitutional limitation on the right, the legislature might, by a single
act, and if we can suppose it capable of so great a folly and so great a
wrong, sweep from existence all of the municipal corporations in the
State, and the corporation could not prevent it. We know of no limitation
on the right so far as to the corporation themselves are concerned. They
are, so to phrase it, the mere tenants at will of the legislature.'
This basic relationship between the national legislature and the local
government units has not been enfeebled by the new provisions in the
Constitution strengthening the policy of local autonomy. Without meaning to
detract from that policy, we here confirm that Congress retains control of the
local government units although in significantly reduced degree now than under
our previous Constitutions. The power to create still includes the power to
destroy. The power to grant still includes the power to withhold or recall. True,
there are certain notable innovations in the Constitution, like the direct
conferment on the local government units of the power to tax, which cannot
now be withdrawn by mere statute. By and large, however, the national
legislature is still the principal of the local government units, which cannot defy
its will or modify or violate it."
EACIcH

Respondents have an ingenious retort against the above disquisition. Their theory is that
the regulatory power of the LGUs is granted by R.A. No. 7160 (the Local Government
Code of 1991), a handiwork of the national lawmaking authority.They contend that R.A.
No. 7160 repealed E.O. No. 205 (issued by President Aquino). Respondents' argument
espouses a bad precedent. To say that LGUs exercise the same regulatory power over
matters which are peculiarly within the NTC's competence is to promote a scenario of
LGUs and the NTC locked in constant clash over the appropriate regulatory measure on
the same subject matter. LGUs must recognize that technical matters concerning CATV
operation are within the exclusive regulatory power of the NTC .
At any rate, we find no basis to conclude that R.A. No. 7160 repealed E.O. No. 205,
either expressly or impliedly. It is noteworthy that R.A. No. 7160 repealing clause, which
painstakingly mentions the specific laws or the parts thereof which are repealed, does not
include E.O. No. 205, thus:
"SECTION 534. Repealing Clause. (a) Batas Pambansa Blg. 337, otherwise
known as the Local Government Code." Executive Order No. 112 (1987), and
Executive Order No. 319 (1988) are hereby repealed.
(b) Presidential Decree Nos. 684, 1191, 1508 and such other decrees, orders,
instructions, memoranda and issuances related to or concerning the barangay
are hereby repealed.
 (c) The provisions of Sections 2, 3, and 4 of Republic Act No. 1939 regarding
hospital fund; Section 3, a (3) and b (2) of Republic Act. No. 5447 regarding the
Special Education Fund; Presidential Decree No. 144 as amended by
Presidential Decree Nos. 559 and 1741; Presidential Decree No. 231 as
amended; Presidential Decree No. 436 as amended by Presidential Decree No.
558; and Presidential Decree Nos. 381, 436,464, 477, 526, 632, 752, and 1136
are hereby repealed and rendered of no force and effect.
(d) Presidential Decree No. 1594 is hereby repealed insofar as it governs
locally-funded projects.
(e) The following provisions are hereby repealed or amended insofar as they are
inconsistent with the provisions of this Code: Sections 2, 16, and 29 of
Presidential Decree No. 704; Section 12 of Presidential Decree No. 87, as
amended; Sections 52, 53, 66, 67, 68, 69, 70, 71, 72, 73, and 74 of Presidential
Decree No. 463, as amended; and Section 16 of Presidential Decree No. 972, as
amended, and
(f) All general and special laws, acts, city charters, decrees, executive orders,
proclamations and administrative regulations, or part or parts thereof which are
inconsistent with any of the provisions of this Code are hereby repealed or
modified accordingly."
Neither is there an indication that E.O. No. 205 was impliedly repealed by R.A. No.
7160. It is a settled rule that implied repeals are not lightly presumed in the absence of a
clear and unmistakable showing of such intentions. In Mecano vs. Commission on Audit,
46 we ruled:

"Repeal by implication proceeds on the premise that where a statute of later date
clearly reveals an intention on the part of the legislature to abrogate a prior act
on the subject, that intention must be given effect. Hence, before there can be a
repeal, there must be a clear showing on the part of the lawmaker that the intent
in enacting the new law was to abrogate the old one. The intention to repeal
must be clear and manifest; otherwise, at least, as a general rule, the later act is
to be construed as a continuation of, and not a substitute for, the first act and
will continue so far as the two acts are the same from the time of the first
enactment."
As previously stated, E.O. No. 436 (issued by President Ramos) vests upon the NTC the
power to regulate the CATV operation in this country. So also Memorandum Circular
No. 8-9-95, the Implementing Rules and Regulations of R.A. No. 7925 (the "Public
Telecommunications Policy Act of the Philippines"). This shows that the NTC's
regulatory power over CATV operation is continuously recognized.
It is a canon of legal hermeneutics that instead of pitting one statute against another in an
inevitably destructive confrontation, courts must exert every effort to reconcile them,
remembering that both laws deserve a becoming respect as the handiwork of coordinate
branches of the government. 47 On the assumption of a conflict between E.O. No. 205 and
R.A. No. 7160, the proper action is not to uphold one and annul the other but to give
effect to both by harmonizing them if possible. This recourse finds application here.
Thus, we hold that the NTC, under E.O. No. 205, has exclusive jurisdiction over matters
affecting CATV operation, including specifically the fixing of subscriber rates, but
nothing herein precludes LGUs from exercising its general power, under R.A. No. 7160,
to prescribe regulations to promote the health, morals, peace, education, good order or
safety and general welfare of their constituents. In effect, both laws become equally
effective and mutually complementary.
The grant of regulatory power to the NTC is easily understandable. CATV system is not a
mere local concern. The complexities that characterize this new technology demand that
it be regulated by a specialized agency. This is particularly true in the area of rate-fixing.
Rate fixing involves a series of technical operations. 48 Consequently, on the hands of the
regulatory body lies the ample discretion in the choice of such rational processes as might
be appropriate to the solution of its highly complicated and technical problems.
Considering that the CATV industry is so technical a field, we believe that the NTC, a
specialized agency, is in a better position than the LGU, to regulate it. Notably, in United
States vs. Southwestern Cable Co., 49 the US Supreme Court affirmed the Federal
Communications Commission's (FCC's) jurisdiction over CATV operation. The Court
held that the FCC's authority over cable systems assures the preservation of the local
broadcast service and an equitable distribution of broadcast services among the various
regions of the country.
II.
Resolution No. 210 violated the State's deregulation policy. DTAESI

Deregulation is the reduction of government regulation of business to permit freer

markets and competition. 50 Oftentimes, the State, through its regulatory agencies, carries
out a policy of deregulation to attain certain objectives or to address certain problems. In
the field of telecommunications, it is recognized that many areas in the Philippines are
still "unserved" or "underserved." Thus, to encourage private sectors to venture in this
field and be partners of the government in stimulating the growth and development of
telecommunications, the State promoted the policy of deregulation.
In the United States, the country where CATV originated, the Congress observed, when it
adopted the Telecommunications Act of 1996, that there was a need to provide a pro-
competitive, deregulatory national policy framework designed to accelerate rapidly
private sector deployment of advanced telecommunications and information technologies
and services to all Americans by opening all telecommunications markets to competition.
The FCC has adopted regulations to implement the requirements of the 1996 Act and the
intent of the Congress.

Our country follows the same policy. The fifth Whereas Clause of E.O. No. 436 states:
 "WHEREAS, professionalism and self-regulation among existing operators,
through a nationally recognized cable television operator's association, have
enhanced the growth of the cable television industry and must therefore be
maintained along with minimal reasonable government regulations;"
This policy reaffirms the NTC's mandate set forth in the Memorandum dated August 25,
1989 of Commissioner Jose Luis A. Alcuaz, to wit:
"In line with the purpose and objective of MC 4-08-88, Cable Television
System or Community Antenna Television (CATV) is made part of the
broadcast media to promote the orderly growth of the Cable Television Industry
it being in its developing stage. Being part of the Broadcast Media, the service
rates of CATV are likewise considered deregulated in accordance with MC 06-
2-81 dated 25 February 1981, the implementing guidelines for the authorization
and operation of Radio and Television Broadcasting stations/systems.
Further, the Commission will issue Provisional Authority to existing CATV
operators to authorize their operations for a period of ninety (90) days until such
time that the Commission can issue the regular Certificate of Authority."
When the State declared a policy of deregulation, the LGUs are bound to follow. To rule
otherwise is to render the State's policy ineffective. Being mere creatures of the State,
LGUs cannot defeat national policies through enactments of contrary measures. Verily, in
the case at bar, petitioner may increase its subscriber rates without respondents' approval.
At this juncture, it bears emphasizing that municipal corporations are bodies politic and
corporate, created not only as local units of local self-government, but as governmental
agencies of the state. 51 The legislature, by establishing a municipal corporation, does not
divest the State of any of its sovereignty; absolve itself from its right and duty to
administer the public affairs of the entire state; or divest itself of any power over the
inhabitants of the district which it possesses before the charter was granted. 52
Respondents likewise argue that E.O. No. 205 violates the constitutional prohibition
against impairment of contracts, Resolution No. 210 of Batangas City Sangguniang
Panlungsod being a grant of franchise to petitioner.
We are not convinced.
There is no law specifically authorizing the LGUs to grant franchises to operate CATV
system. Whatever authority the LGUs had before, the same had been withdrawn when
President Marcos issued P.D. No. 1512 "terminating all franchises, permits or
certificates for the operation of CATV system previously granted by local governments."
Today, pursuant to Section 3 of E.O. No. 436,"only persons, associations, partnerships,
corporations or cooperatives granted a Provisional Authority or Certificate of Authority
by the NTC may install, operate and maintain a cable television system or render cable
television service within a service area." It is clear that in the absence of constitutional or
legislative authorization, municipalities have no power to grant franchises. 53
Consequently, the protection of the constitutional provision as to impairment of the
obligation of a contract does not extend to privileges, franchises and grants given by a
municipality in excess of its powers, or ultra vires. 54
One last word. The devolution of powers to the LGUs, pursuant to the Constitutional
mandate of ensuring their autonomy, has bred jurisdictional tension between said LGUs
and the State. LGUs must be reminded that they merely form part of the whole. Thus,
when the Drafters of the 1987 Constitution enunciated the policy of ensuring the
autonomy of local governments, 55 it was never their intention to create an imperium in
imperio and install an intra-sovereign political subdivision independent of a single
sovereign state.SHTaID

WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of

Appeals dated February 12, 1999 as well as its Resolution dated May 26, 1999 in CA-
G.R. CV No. 52461, are hereby REVERSED. The RTC Decision in Civil Case No. 4254
is AFFIRMED.
No pronouncement as to costs.
SO ORDERED.
(Batangas CATV, Inc. v. Court of Appeals, G.R. No. 138810, [September 29, 2004], 482
|||

PHIL 544-571)

[G.R. No. L-24153. February 14, 1983.]

TOMAS VELASCO, LOURDES RAMIREZ, SY PIN, EDMUNDO

UNSON, APOLONIA RAMIREZ and LOURDES LOMIBAO, as
component members of the STA. CRUZ BARBERSHOP
ASSOCIATION, in their own behalf and in representation of the
other owners of barbershops in the City of Manila, petitioners-
appellants, vs. HON. ANTONIO J. VILLEGAS, City Mayor of
Manila, HON. HERMINIO A. ASTORGA, Vice-Mayor and
Presiding Officer of the Municipal Board in relation to Republic Act
4065, THE MUNICIPAL BOARD OF THE CITY OF MANILA and
EDUARDO QUINTOS SR., Chief of Police of the City of Manila,
respondents-appellees.

Joaquin P. Yuseco, Jr. for petitioners-appellants.

Leonardo L. Arguelles for respondent-appellant.

SYLLABUS
CONSTITUTIONAL LAW: POLICE POWER OF THE STATE;
CONSTITUTIONALITY OF ORDINANCES BASED ON THE GENERAL WELFARE
CLAUSE SUSTAINED BY THE COURTS; ATTACK AGAINST THE VALIDITY OF
ORDINANCE 4964 CANNOT SUCCEED. The objectives behind the enactment of
Ordinance 4964 are: "(1) To be able to impose payment of the license fee for engaging in
the business of massage clinic under Ordinance No. 3659 as amended by Ordinance
4767, an entirely different measure than the ordinance regulating the business of
barbershops and, (2) in order to forestall possible immorality which might grow out of
the construction of separate rooms for massage of customers." This Court has been most
liberal in sustaining ordinances based on the general welfare clause. As far back as U.S.
v. Salaveria, 39 Phil. 102, a 1918 decision, this Court through Justice Malcolm made
clear the significance and scope of such a clause, which "delegates in statutory form the
police power to a municipality. This clause has been given wide application by municipal
authorities and has in its relation to the particular circumstances of the case been liberally
construed by the courts. Such, it is well to recall, is the progressive view of the Philippine
Jurisprudence." As it was then, so it has continued to be. There is no showing, therefore,
of the unconstitutionality of such ordinance.

DECISION

FERNANDO, J : p

This is an appeal from an order of the lower court dismissing a suit for declaratory relief
challenging the constitutionality based on Ordinance No. 4964 of the City of Manila, the
contention being that it amounts to a deprivation of property of petitioners-appellants of
their means of livelihood without due process of law. The assailed ordinance is worded
thus: "It shall be prohibited for any operator of any barber shop to conduct the business of
massaging customers or other persons in any adjacent room or rooms of said barber shop,
or in any room or rooms within the same building where the barber shop is located as
long as the operator of the barber shop and the rooms where massaging is conducted is
the same person." 1 As noted in the appealed order, petitioners-appellants admitted that
criminal cases for the violation of this ordinance had been previously filed and decided.
The lower court, therefore, held that a petition for declaratory relief did not lie, its
availability being dependent on there being as yet no case involving such issue having
been filed. 2
Even if such were not the case, the attack against the validity cannot succeed. As pointed
out in the brief of respondents-appellees, it is a police power measure. The objectives
behind its enactment are: "(1) To be able to impose payment of the license fee for
engaging in the business of massage clinic under Ordinance No. 3659 as amended by
Ordinance 4767, an entirely different measure than the ordinance regulating the business
of barbershops and, (2) in order to forestall possible immorality which might grow out of
the construction of separate rooms for massage of customers." 3 This Court has been most
liberal in sustaining ordinances based on the general welfare clause. As far back as U.S.
v. Salaveria, 4 a 1918 decision, this Court through Justice Malcolm made clear the
significance and scope of such a clause, which "delegates in statutory form the police
power to a municipality. As above stated, this clause has been given wide application by
municipal authorities and has in its relation to the particular circumstances of the case
been liberally construed by the courts. Such, it is well to recall, is the progressive view of
Philippine jurisprudence." 5 As it was then, so it has continued to be. 6 There is no
showing, therefore, of the unconstitutionality of such ordinance. LexLib

WHEREFORE, the appealed order of the lower court is affirmed. No costs.

||| (Velasco v. Villegas, G.R. No. L-24153, [February 14, 1983], 205 PHIL 480-483)
[G.R. No. 187298. July 3, 2012.]

JAMAR M. KULAYAN, TEMOGEN S. TULAWIE, HJI. MOH.

YUSOP ISMI, JULHAJAN AWADI, and SPO1 SATTAL H.
JADJULI, petitioners, vs. GOV. ABDUSAKUR M. TAN, in his
capacity as Governor of Sulu; GEN. JUANCHO SABAN, COL.
EUGENIO CLEMEN PN, P/SUPT. JULASIRIM KASIM and
P/SUPT. BIENVENIDO G. LATAG, in their capacity as officers of the
Phil. Marines and Phil. National Police, respectively,respondents.

DECISION

SERENO, J : p

On 15 January 2009, three members from the International Committee of the

Red Cross (ICRC) were kidnapped in the vicinity of the Provincial Capitol in Patikul,
Sulu. 1 Andreas Notter, a Swiss national and head of the ICRC in Zamboanga City,
Eugenio Vagni, an Italian national and ICRC delegate, and Marie Jean Lacaba, a
Filipino engineer, were purportedly inspecting a water and sanitation project for the
Sulu Provincial Jail when inspecting a water and sanitation project for the Sulu
Provincial Jail when they were seized by three armed men who were later confirmed to
be members of the Abu Sayyaf Group (ASG). 2 The leader of the alleged kidnappers
was identified as Raden Abu, a former guard at the Sulu Provincial Jail. News reports
linked Abu to Albader Parad, one of the known leaders of the Abu Sayyaf.
On 21 January 2009, a task force was created by the ICRC and the Philippine
National Police (PNP), which then organized a parallel local group known as the Local
Crisis Committee. 3 The local group, later renamed Sulu Crisis Management
Committee, convened under the leadership of respondent Abdusakur Mahail Tan, the
Provincial Governor of Sulu. Its armed forces component was headed by respondents
General Juancho Saban, and his deputy, Colonel Eugenio Clemen. The PNP component
was headed by respondent Police Superintendent Bienvenido G. Latag, the Police
Deputy Director for Operations of the Autonomous Region of Muslim Mindanao
(ARMM). 4
Governor Tan organized the Civilian Emergency Force (CEF), a group of armed
male civilians coming from different municipalities, who were redeployed to
surrounding areas of Patikul. 5 The organization of the CEF was embodied in a
"Memorandum of Understanding" 6 entered into between three parties: the provincial
government of Sulu, represented by Governor Tan; the Armed Forces of the
Philippines, represented by Gen. Saban; and the Philippine National Police, represented
by P/SUPT. Latag. The Whereas clauses of the Memorandum alluded to the
extraordinary situation in Sulu, and the willingness of civilian supporters of the
municipal mayors to offer their services in order that "the early and safe rescue of the
hostages may be achieved." 7 CIScaA

This Memorandum, which was labeled 'secret' on its all pages, also outlined the
responsibilities of each of the party signatories, as follows:
Responsibilities of the Provincial Government:
1) The Provincial Government shall source the funds and logistics needed for
the activation of the CEF;
2) The Provincial Government shall identify the Local Government Units which
shall participate in the operations and to propose them for the approval of
the parties to this agreement;
3) The Provincial Government shall ensure that there will be no unilateral
action(s) by the CEF without the knowledge and approval by both parties.
Responsibilities of AFP/PNP/TF ICRC (Task Force ICRC):
1) The AFP/PNP shall remain the authority as prescribed by law in military
operations and law enforcement;
2) The AFP/PNP shall ensure the orderly deployment of the CEF in the
performance of their assigned task(s);
3) The AFP/PNP shall ensure the safe movements of the CEF in identified areas
of operation(s);
4) The AFP/PNP shall provide the necessary support and/or assistance as called
for in the course of operation(s)/movements of the CEF. 8
Meanwhile, Ronaldo Puno, then Secretary of the Department of Interior and
Local Government, announced to the media that government troops had cornered some
one hundred and twenty (120) Abu Sayyaf members along with the three (3) hostages.
9 However, the ASG made contact with the authorities and demanded that the military
pull its troops back from the jungle area. 10 The government troops yielded and went
back to their barracks; the Philippine Marines withdrew to their camp, while police and
civilian forces pulled back from the terrorists' stronghold by ten (10) to fifteen (15)
kilometers. Threatening that one of the hostages will be beheaded, the ASG further
demanded the evacuation of the military camps and bases in the different barangays in
Jolo. 11 The authorities were given no later than 2:00 o'clock in the afternoon of 31
March 2009 to comply. 12 CSTEHI

On 31 March 2009, Governor Tan issued Proclamation No. 1, Series of 2009

(Proclamation 1-09), declaring a state of emergency in the province of Sulu. 13 It cited
the kidnapping incident as a ground for the said declaration, describing it as a terrorist
act pursuant to the Human Security Act (R.A. 9372). It also invoked Section 465 of the
Local Government Code of 1991 (R.A. 7160), which bestows on the Provincial
Governor the power to carry out emergency measures during man-made and natural
disasters and calamities, and to call upon the appropriate national law enforcement
agencies to suppress disorder and lawless violence.
In the same Proclamation, respondent Tan called upon the PNP and the CEF to
set up checkpoints and chokepoints, conduct general search and seizures including
arrests, and other actions necessary to ensure public safety. The pertinent portion of the
proclamation states:
NOW, THEREFORE, BY VIRTUE OF THE POWERS VESTED IN ME BY
LAW, I, ABDUSAKUR MAHAIL TAN, GOVERNOR OF THE PROVINCE
OF SULU, DO HEREBY DECLARE A STATE OF EMERGENCY IN THE
PROVINCE OF SULU, AND CALL ON THE PHILIPPINE NATIONAL
POLICE WITH THE ASSISTANCE OF THE ARMED FORCES OF THE
PHILIPPINES AND THE CIVILIAN EMERGENCY FORCE TO
IMPLEMENT THE FOLLOWING:
1. The setting-up of checkpoints and chokepoints in the province;
2. The imposition of curfew for the entire province subject to such Guidelines
as may be issued by proper authorities;
3. The conduct of General Search and Seizure including arrests in the pursuit of
the kidnappers and their supporters; and
4. To conduct such other actions or police operations as may be necessary to
ensure public safety.
DONE AT THE PROVINCIAL CAPITOL, PROVINCE OF SULU THIS 31ST
DAY OF MARCH 2009.
Sgd. Abdusakur M. Tan
Governor. 14
 On 1 April 2009, SPO1 Sattal Jadjuli was instructed by his superior to report to
respondent P/SUPT. Julasirim Kasim. 15 Upon arriving at the police station, he was
booked, and interviewed about his relationship to Musin, Jaiton, and Julamin, who were
all his deceased relatives. Upon admitting that he was indeed related to the three, he
was detained. After a few hours, former Punong Barangay Juljahan Awadi, Hadji
Hadjirul Bambra, Abdugajir Hadjirul, as well as PO2 Marcial Hajan, SPO3 Muhilmi
Ismula, Punong Barangay Alano Mohammad and jeepney driver Abduhadi Sabdani,
were also arrested. 16 The affidavit 17 of the apprehending officer alleged that they were
suspected ASG supporters and were being arrested under Proclamation 1-09. The
following day, 2 April 2009, the hostage Mary Jane Lacaba was released by the ASG.
ATESCc

On 4 April 2009, the office of Governor Tan distributed to civic organizations,

copies of the "Guidelines for the Implementation of Proclamation No. 1, Series of 2009
Declaring a State of Emergency in the Province of Sulu." 18 These Guidelines
suspended all Permits to Carry Firearms Outside of Residence (PTCFORs) issued by
the Chief of the PNP, and allowed civilians to seek exemption from the gun ban only
by applying to the Office of the Governor and obtaining the appropriate identification
cards. The said guidelines also allowed general searches and seizures in designated
checkpoints and chokepoints.
On 16 April 2009, Jamar M. Kulayan, Temogen S. Tulawie, Hadji Mohammad
Yusop Ismi, Ahajan Awadi, and SPO1 Sattal H. Jadjuli, residents of Patikul, Sulu, filed
the present Petition for Certiorari and Prohibition, 19 claiming that Proclamation 1-09
was issued with grave abuse of discretion amounting to lack or excess of jurisdiction,
as it threatened fundamental freedoms guaranteed under Article III of the 1987
Constitution.
Petitioners contend that Proclamation No. 1 and its Implementing Guidelines
were issued ultra vires, and thus null and void, for violating Sections 1 and 18, Article
VII of the Constitution, which grants the President sole authority to exercise emergency
powers and calling-out powers as the chief executive of the Republic and commander-
in-chief of the armed forces. 20 Additionally, petitioners claim that the Provincial
Governor is not authorized by any law to create civilian armed forces under his
command, nor regulate and limit the issuances of PTCFORs to his own private army.
In his Comment, Governor Tan contended that petitioners violated the doctrine
on hierarchy of courts when they filed the instant petition directly in the court of last
resort, even if both the Court of Appeals (CA) and the Regional Trial Courts (RTC)
possessed concurrent jurisdiction with the Supreme Court under Rule 65. 21 This is the
only procedural defense raised by respondent Tan. Respondents Gen. Juancho Saban,
Col. Eugenio Clemen, P/SUPT. Julasirim Kasim, and P/SUPT. Bienvenido Latag did
not file their respective Comments.
On the substantive issues, respondents deny that Proclamation 1-09 was issued
ultra vires, as Governor Tan allegedly acted pursuant to Sections 16 and 465 of the
Local Government Code, which empowers the Provincial Governor to carry out
emergency measures during calamities and disasters, and to call upon the appropriate
national law enforcement agencies to suppress disorder, riot, lawless violence, rebellion
or sedition. 22 Furthermore, the Sangguniang Panlalawigan of Sulu authorized the
declaration of a state of emergency as evidenced by Resolution No. 4, Series of 2009
issued on 31 March 2009 during its regular session. 23
The threshold issue in the present case is whether or not Section 465, in relation
to Section 16, of the Local Government Code authorizes the respondent governor to
declare a state of emergency,and exercise the powers enumerated under Proclamation
1-09, specifically the conduct of general searches and seizures. Subsumed herein is the
secondary question of whether or not the provincial governor is similarly clothed with
authority to convene the CEF under the said provisions. SETAcC

We grant the petition.

I. Transcendental public
importance warrants a relaxation of
the Doctrine of Hierarchy of Courts
We first dispose of respondents' invocation of the doctrine of hierarchy of courts
which allegedly prevents judicial review by this Court in the present case, citing for this
specific purpose, Montes v. Court of Appeals and Purok Bagong Silang Association,
Inc. v. Yuipco. 24 Simply put, the doctrine provides that where the issuance of an
extraordinary writ is also within the competence of the CA or the RTC, it is in either of
these courts and not in the Supreme Court, that the specific action for the issuance of
such writ must be sought unless special and important laws are clearly and specifically
set forth in the petition. The reason for this is that this Court is a court of last resort and
must so remain if it is to perform the functions assigned to it by the Constitution and
immemorial tradition. It cannot be burdened with deciding cases in the first instance. 25
The said rule, however, is not without exception. In Chavez v. PEA-Amari, 26 the
Court stated:
PEA and AMARI claim petitioner ignored the judicial hierarchy by seeking relief
directly from the Court. The principle of hierarchy of courts applies generally to
cases involving factual questions. As it is not a trier of facts, the Court cannot
entertain cases involving factual issues. The instant case, however, raises
constitutional questions of transcendental importance to the public. The Court can
resolve this case without determining any factual issue related to the case. Also,
the instant case is a petition for mandamus which falls under the original
jurisdiction of the Court under Section 5, Article VIII of the Constitution. We
resolve to exercise primary jurisdiction over the instant case. 27
The instant case stems from a petition for certiorari and prohibition, over which
the Supreme Court possesses original jurisdiction. 28 More crucially, this case involves
acts of a public official which pertain to restrictive custody, and is thus impressed with
transcendental public importance that would warrant the relaxation of the general rule.
The Court would be remiss in its constitutional duties were it to dismiss the present
petition solely due to claims of judicial hierarchy. IHCDAS

In David v. Macapagal-Arroyo, 29 the Court highlighted the transcendental

public importance involved in cases that concern restrictive custody, because judicial
review in these cases serves as "a manifestation of the crucial defense of civilians 'in
police power' cases due to the diminution of their basic liberties under the guise of a
state of emergency." 30 Otherwise, the importance of the high tribunal as the court of
last resort would be put to naught, considering the nature of "emergency" cases, wherein
the proclamations and issuances are inherently short-lived. In finally disposing of the
claim that the issue had become moot and academic, the Court also cited transcendental
public importance as an exception, stating:
Sa kabila ng pagiging akademiko na lamang ng mga isyu tungkol sa mahigpit na
pangangalaga (restrictive custody) at pagmonitor ng galaw (monitoring of
movements) ng nagpepetisyon, dedesisyunan namin ito (a) dahil sa
nangingibabaw na interes ng madla na nakapaloob dito, (b) dahil sa posibilidad
na maaaring maulit ang pangyayari at (c) dahil kailangang maturuan ang
kapulisan tungkol dito.
The moot and academic principle is not a magical formula that can automatically
dissuade the courts in resolving a case. Courts will decide cases, otherwise moot
and academic, if: first, there is a grave violation of the Constitution; second, the
exceptional character of the situation and the paramount public interest is
involved; third, when [the] constitutional issue raised requires formulation of
controlling principles to guide the bench, the bar, and the public; and fourth, the
case is capable of repetition yet evading review.
. . . There is no question that the issues being raised affect the public interest,
involving as they do the people's basic rights to freedom of expression, of
assembly and of the press. Moreover, the Court has the duty to formulate
guiding and controlling constitutional precepts, doctrines or rules. It has the
symbolic function of educating the bench and the bar, and in the present
petitions, the military and the police, on the extent of the protection given by
constitutional guarantees. And lastly, respondents contested actions are
capable of repetition. Certainly, the petitions are subject to judicial review.
Evidently, the triple reasons We advanced at the start of Our ruling are
justified under the foregoing exceptions. Every bad, unusual incident where
police officers figure in generates public interest and people watch what will
be done or not done to them. Lack of disciplinary steps taken against them
erode public confidence in the police institution. As petitioners themselves
assert, the restrictive custody of policemen under investigation is an existing
practice, hence, the issue is bound to crop up every now and then. The matter
is capable of repetition or susceptible of recurrence. It better be resolved now
for the education and guidance of all concerned. 31 (Emphasis supplied) aESIDH
 Hence, the instant petition is given due course, impressed as it is with
transcendental public importance.
II. Only the President is vested
with calling-out powers, as the
commander-in-chief of the Republic
i. One executive, one
commander-in-chief
As early as Villena v. Secretary of Interior, 32 it has already been established that
there is one repository of executive powers, and that is the President of the Republic.
This means that when Section 1, Article VII of the Constitution speaks of executive
power, it is granted to the President and no one else. 33 As emphasized by Justice Jose
P. Laurel, in his ponencia in Villena:
With reference to the Executive Department of the government, there is one
purpose which is crystal-clear and is readily visible without the projection of
judicial searchlight, and that is the establishment of a single, not plural, Executive.
The first section of Article VII of the Constitution, dealing with the Executive
Department, begins with the enunciation of the principle that "The executive
power shall be vested in a President of the Philippines." This means that the
President of the Philippines is the Executive of the Government of the
Philippines, and no other. 34
Corollarily, it is only the President, as Executive, who is authorized to exercise
emergency powers as provided under Section 23, Article VI, of the Constitution, as
well as what became known as the calling-out powers under Section 7, Article VII
thereof.
ii. The exceptional
characterof
Commander-in-Chief
powers dictate that they
are exercised by one
president
Springing from the well-entrenched constitutional precept of One President is
the notion that there are certain acts which, by their very nature, may only be performed
by the president as the Head of the State. One of these acts or prerogatives is the bundle
of Commander-in-Chief powers to which the "calling-out" powers constitutes a portion.
The President's Emergency Powers, on the other hand, is balanced only by the
legislative act of Congress, as embodied in the second paragraph of Section 23, Article
6 of the Constitution: aIETCA

Article 6, Sec. 23(2).In times of war or other national emergency, the Congress
may, by law, authorize the President, for a limited period and subject to such
restrictions as it may prescribe, to exercise powers necessary and proper to carry
 out a declared national policy. Unless sooner withdrawn by resolution of the
Congress, such powers shall cease upon the next adjournment thereof. 35
Article 7, Sec 18.The President shall be the Commander-in-Chief of all armed
forces of the Philippines and whenever it becomes necessary, he may call out
such armed forces to prevent or suppress lawless violence, invasion or rebellion.
In case of invasion or rebellion, when the public safety requires it, he may, for a
period not exceeding sixty days, suspend the privilege of the writ of habeas
corpus or place the Philippines or any part thereof under martial law. Within
forty-eight hours from the proclamation of martial law or the suspension of the
privilege of the writ of habeas corpus, the President shall submit a report in
person or in writing to the Congress. The Congress, voting jointly, by a vote of at
least a majority of all its Members in regular or special session, may revoke such
proclamation or suspension, which revocation shall not be set aside by the
President. Upon the initiative of the President, the Congress may, in the same
manner, extend such proclamation or suspension for a period to be determined by
the Congress, if the invasion or rebellion shall persist and public safety requires
it.
The Congress, if not in session, shall, within twenty-four hours following such
proclamation or suspension, convene in accordance with its rules without need of
a call. 36
The power to declare a state of martial law is subject to the Supreme Court's
authority to review the factual basis thereof. 37 By constitutional fiat, the calling-out
powers, which is of lesser gravity than the power to declare martial law, is bestowed
upon the President alone. As noted in Villena, "(t)here are certain constitutional powers
and prerogatives of the Chief Executive of the Nation which must be exercised by him
in person and no amount of approval or ratification will validate the exercise of any of
those powers by any other person. Such, for instance, is his power to suspend the writ
of habeas corpus and proclaim martial law . . . . 38
Indeed, while the President is still a civilian, Article II, Section 3 39 of the
Constitution mandates that civilian authority is, at all times, supreme over the military,
making the civilian president the nation's supreme military leader. The net effect of
Article II, Section 3, when read with Article VII, Section 18, is that a civilian President
is the ceremonial, legal and administrative head of the armed forces. The Constitution
does not require that the President must be possessed of military training and talents,
but as Commander-in-Chief, he has the power to direct military operations and to
determine military strategy. Normally, he would be expected to delegate the actual
command of the armed forces to military experts; but the ultimate power is his. 40 As
Commander-in-Chief, he is authorized to direct the movements of the naval and
military forces placed by law at his command, and to employ them in the manner he
may deem most effectual. 41 caSEAH
 In the case of Integrated Bar of the Philippines v. Zamora, 42 the Court had
occasion to rule that the calling-out powers belong solely to the President as
commander-in-chief:
When the President calls the armed forces to prevent or suppress lawless
violence, invasion or rebellion, he necessarily exercises a discretionary power
solely vested in his wisdom. This is clear from the intent of the framers and from
the text of the Constitution itself. The Court, thus, cannot be called upon to
overrule the President's wisdom or substitute its own. However, this does not
prevent an examination of whether such power was exercised within permissible
constitutional limits or whether it was exercised in a manner constituting grave
abuse of discretion. In view of the constitutional intent to give the President full
discretionary power to determine the necessity of calling out the armed forces, it
is incumbent upon the petitioner to show that the President's decision is totally
bereft of factual basis.
There is a clear textual commitment under the Constitution to bestow on the
President full discretionary power to call out the armed forces and to
determine the necessity for the exercise of such power. 43 (Emphasis supplied)
Under the foregoing provisions, Congress may revoke such proclamation or
suspension and the Court may review the sufficiency of the factual basis thereof.
However, there is no such equivalent provision dealing with the revocation or review
of the President's action to call out the armed forces. The distinction places the calling
out power in a different category from the power to declare martial law and the power
to suspend the privilege of the writ of habeas corpus, otherwise, the framers of the
Constitution would have simply lumped together the three powers and provided for
their revocation and review without any qualification. 44
That the power to call upon the armed forces is discretionary on the president is
clear from the deliberation of the Constitutional Commission:
FR. BERNAS.
It will not make any difference. I may add that there is a graduated power of
the President as Commander-in-Chief. First, he can call out such
Armed Forces as may be necessary to suppress lawless violence; then
he can suspend the privilege of the writ of habeas corpus, then he can
impose martial law. This is a graduated sequence.
When he judges that it is necessary to impose martial law or suspend the privilege
of the writ of habeas corpus, his judgment is subject to review. We are
making it subject to review by the Supreme Court and subject to
concurrence by the National Assembly. But when he exercises this lesser
power of calling on the Armed Forces, when he says it is necessary, it is
my opinion that his judgment cannot be reviewed by anybody. IDAESH

xxx xxx xxx

MR. REGALADO.
 That does not require any concurrence by the legislature nor is it subject to
judicial review.
The reason for the difference in the treatment of the aforementioned powers
highlights the intent to grant the President the widest leeway and broadest
discretion in using the power to call out because it is considered as the
lesser and more benign power compared to the power to suspend the
privilege of the writ of habeas corpus and the power to impose martial
law, both of which involve the curtailment and suppression of certain
basic civil rights and individual freedoms, and thus necessitating
safeguards by Congress and review by this Court.
. . . Thus, it is the unclouded intent of the Constitution to vest upon the
President, as Commander-in-Chief of the Armed Forces, full
discretion to call forth the military when in his judgment it is
necessary to do so in order to prevent or suppress lawless violence,
invasion or rebellion. 45 (Emphasis Supplied)
In the more recent case of Constantino, Jr. v. Cuisia, 46 the Court characterized
these powers as exclusive to the President, precisely because they are of exceptional
import:
These distinctions hold true to this day as they remain embodied in our
fundamental law. There are certain presidential powers which arise out of
exceptional circumstances, and if exercised, would involve the suspension of
fundamental freedoms, or at least call for the supersedence of executive
prerogatives over those exercised by co-equal branches of government. The
declaration of martial law, the suspension of the writ of habeas corpus, and the
exercise of the pardoning power, notwithstanding the judicial determination of
guilt of the accused, all fall within this special class that demands the exclusive
exercise by the President of the constitutionally vested power. The list is by no
means exclusive, but there must be a showing that the executive power in question
is of similar gravitas and exceptional import. 47
In addition to being the commander-in-chief of the armed forces, the President
also acts as the leader of the country's police forces, under the mandate of Section 17,
Article VII of the Constitution, which provides that, "The President shall have control
of all the executive departments, bureaus, and offices. He shall ensure that the laws be
faithfully executed." During the deliberations of the Constitutional Commission on the
framing of this provision, Fr. Bernas defended the retention of the word "control,"
employing the same rationale of singularity of the office of the president, as the only
Executive under the presidential form of government. 48 IDSaTE

Regarding the country's police force, Section 6, Article XVI of the Constitution
states that: "The State shall establish and maintain one police force, which shall be
national in scope and civilian in character, to be administered and controlled by a
national police commission. The authority of local executives over the police units in
their jurisdiction shall be provided by law." 49
 A local chief executive, such as the provincial governor, exercises operational
supervision over the police, 50 and may exercise control only in day-to-day operations,
viz.:
Mr. Natividad:
By experience, it is not advisable to provide either in our Constitution or by
law full control of the police by the local chief executive and local
executives, the mayors. By our experience, this has spawned
warlordism, bossism and sanctuaries for vices and abuses. If the
national government does not have a mechanism to supervise these 1,500
legally, technically separate police forces, plus 61 city police forces,
fragmented police system, we will have a lot of difficulty in presenting a
modern professional police force. So that a certain amount of
supervision and control will have to be exercised by the national
government.
For example, if a local government, a town cannot handle its peace and order
problems or police problems, such as riots, conflagrations or
organized crime, the national government may come in, especially if
requested by the local executives. Under that situation, if they come
in under such an extraordinary situation, they will be in control. But
if the day-to-day business of police investigation of crime, crime
prevention, activities, traffic control, is all lodged in the mayors, and if
they are in complete operational control of the day-to-day business of
police service, what the national government would control would be the
administrative aspect.
xxx xxx xxx
Mr. de los Reyes:
so the operational control on a day-to-day basis, meaning, the usual duties being
performed by the ordinary policemen, will be under the supervision of the
local executives?
Mr. Natividad:
Yes, Madam President. CSIcHA

xxx xxx xxx

Mr. de los Reyes:
But in exceptional cases, even the operational control can be taken over by
the National Police Commission?
Mr. Natividad:
If the situation is beyond the capacity of the local governments. 51 (Emphases
supplied)
 Furthermore according to the framers, it is still the President who is authorized
to exercise supervision and control over the police, through the National Police
Commission:
Mr. Rodrigo:
Just a few questions. The President of the Philippines is the Commander-in-Chief
of all the armed forces.
Mr. Natividad:
Yes, Madam President.
Mr. Rodrigo:
Since the national police is not integrated with the armed forces, I do not suppose
they come under the Commander-in-Chief powers of the President of the
Philippines.
Mr. Natividad:
They do, Madam President. By law, they are under the supervision and control of
the President of the Philippines.
Mr. Rodrigo:
Yes, but the President is not the Commander-in-Chief of the national police.
Mr. Natividad:
He is the President.
Mr. Rodrigo:
Yes, the Executive. But they do not come under that specific provision that the
President is the Commander-in-Chief of all the armed forces.
Mr. Natividad:
No, not under the Commander-in-Chief provision.
Mr. Rodrigo:
There are two other powers of the President. The President has control over
ministries, bureaus and offices, and supervision over local governments.
Under which does the police fall, under control or under supervision?
Mr. Natividad:
Both, Madam President. IcTCHD

Mr. Rodrigo:
Control and supervision.
Mr. Natividad:
 Yes, in fact, the National Police Commission is under the Office of the President.
52

In the discussions of the Constitutional Commission regarding the above

provision it is clear that the framers never intended for local chief executives to
exercise unbridled control over the police in emergency situations. This is without
prejudice to their authority over police units in their jurisdiction as provided by law,
and their prerogative to seek assistance from the police in day to day situations, as
contemplated by the Constitutional Commission. But as a civilian agency of the
government, the police, through the NAPOLCOM, properly comes within, and is
subject to, the exercise by the President of the power of executive control. 53
iii. The provincial governor
does not possess the
same calling-out powers
as the President
Given the foregoing, respondent provincial governor is not endowed with
the power to call upon the armed forces at his own bidding. In issuing the assailed
proclamation, Governor Tan exceeded his authority when he declared a state of
emergency and called upon the Armed Forces, the police, and his own Civilian
Emergency Force. The calling-out powers contemplated under the Constitution is
exclusive to the President. An exercise by another official, even if he is the local chief
executive, is ultra vires, and may not be justified by the invocation of Section 465 of
the Local Government Code, as will be discussed subsequently.
Respondents, however, justify this stance by stating that nowhere in the seminal
case of David v. Arroyo, which dealt squarely with the issue of the declaration of a state
of emergency, does it limit the said authority to the President alone. Respondents
contend that the ruling in David expressly limits the authority to declare a national
emergency, a condition which covers the entire country, and does not include
emergency situations in local government units. 54 This claim is belied by the clear
intent of the framers that in all situations involving threats to security, such as lawless
violence, invasion or rebellion, even in localized areas, it is still the President who
possesses the sole authority to exercise calling-out powers. As reflected in the Journal
of the Constitutional Commission: aIDHET

Thereafter, Mr. Padilla proposed on line 29 to insert the phrase OR PUBLIC

DISORDER in lieu of "invasion or rebellion." Mr. Sumulong stated that the
committee could not accept the amendment because under the first section of
Section 15, the President may call out and make use of the armed forces to prevent
or suppress not only lawless violence but even invasion or rebellion without
declaring martial law. He observed that by deleting "invasion or rebellion" and
substituting PUBLIC DISORDER, the President would have to declare martial
law before he can make use of the armed forces to prevent or suppress lawless
invasion or rebellion.
 Mr. Padilla, in reply thereto, stated that the first sentence contemplates a
lighter situation where there is some lawless violence in a small portion of
the country or public disorder in another at which times, the armed forces
can be called to prevent or suppress these incidents. He noted that the
Commander-in-Chief can do so in a minor degree but he can also exercise
such powers should the situation worsen. The words "invasion or rebellion" to
be eliminated on line 14 are covered by the following sentence which provides
for "invasion or rebellion." He maintained that the proposed amendment does not
mean that under such circumstances, the President cannot call on the armed forces
to prevent or suppress the same. 55 (Emphasis supplied)
III. Section 465 of the Local
Government Code cannot be invoked
to justify the powers enumerated
under Proclamation 1-09
Respondent governor characterized the kidnapping of the three ICRC workers
as a terroristic act, and used this incident to justify the exercise of the powers
enumerated under Proclamation 1-09. 56 He invokes Section 465, in relation to Section
16, of the Local Government Code, which purportedly allows the governor to carry out
emergency measures and call upon the appropriate national law enforcement agencies
for assistance. But a closer look at the said proclamation shows that there is no provision
in the Local Government Code nor in any law on which the broad and unwarranted
powers granted to the Governor may be based.
Petitioners cite the implementation of "General Search and Seizure including
arrests in the pursuit of the kidnappers and their supporters," 57 as being violative of the
constitutional proscription on general search warrants and general seizures. Petitioners
rightly assert that this alone would be sufficient to render the proclamation void, as
general searches and seizures are proscribed, for being violative of the rights enshrined
in the Bill of Rights, particularly: cIEHAC

The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he
may produce, and particularly describing the place to be searched and the persons
or things to be seized. 58
In fact, respondent governor has arrogated unto himself powers exceeding even
the martial law powers of the President, because as the Constitution itself declares, "A
state of martial law does not suspend the operation of the Constitution, nor supplant the
functioning of the civil courts or legislative assemblies, nor authorize the conferment
of the jurisdiction on military courts and agencies over civilians where civil courts are
able to function, nor automatically suspend the privilege of the writ." 59
 We find, and so hold, that there is nothing in the Local Government Code which
justifies the acts sanctioned under the said Proclamation. Not even Section 465 of the
said Code, in relation to Section 16, which states:
Section 465. The Chief Executive: Powers, Duties, Functions, and
Compensation.
xxx xxx xxx
(b) For efficient, effective and economical governance the purpose of which is
the general welfare of the province and its inhabitants pursuant to Section 16 of
this Code, the provincial governor shall:
(1) Exercise general supervision and control over all programs, projects,
services, and activities of the provincial government, and in this
connection, shall:
xxx xxx xxx
(vii) Carry out such emergency measures as may be
necessary during and in the aftermath of man-made and
natural disasters and calamities; DAHaTc

(2) Enforce all laws and ordinances relative to the governance of the
province and the exercise of the appropriate corporate powers provided
for under Section 22 of this Code, implement all approved policies,
programs, projects, services and activities of the province and, in addition
to the foregoing, shall:
xxx xxx xxx
(vi) Call upon the appropriate national law enforcement
agencies to suppress disorder, riot, lawless violence, rebellion
or sedition or to apprehend violators of the law when public
interest so requires and the police forces of the component city
or municipality where the disorder or violation is happening
are inadequate to cope with the situation or the violators.
Section 16. General Welfare. Every local government unit shall exercise the
powers expressly granted, those necessarily implied therefrom, as well as powers
necessary, appropriate, or incidental for its efficient and effective governance,
and those which are essential to the promotion of the general welfare. Within their
respective territorial jurisdictions, local government units shall ensure and
support, among other things, the preservation and enrichment of culture, promote
health and safety, enhance the right of the people to a balanced ecology,
encourage and support the development of appropriate and self-reliant scientific
and technological capabilities, improve public morals, enhance economic
prosperity and social justice, promote full employment among their residents,
maintain peace and order, and preserve the comfort and convenience of their
inhabitants. (Emphases supplied)
 Respondents cannot rely on paragraph 1, subparagraph (vii) of Article 465
above, as the said provision expressly refers to calamities and disasters, whether man-
made or natural. The governor, as local chief executive of the province, is certainly
empowered to enact and implement emergency measures during these occurrences. But
the kidnapping incident in the case at bar cannot be considered as a calamity or a
disaster. Respondents cannot find any legal mooring under this provision to justify their
actions.
Paragraph 2, subparagraph (vi) of the same provision is equally inapplicable for
two reasons. First, the Armed Forces of the Philippines does not fall under the category
of a "national law enforcement agency," to which the National Police Commission
(NAPOLCOM) and its departments belong. Its mandate is to uphold the sovereignty of
the Philippines, support the Constitution, and defend the Republic against all enemies,
foreign and domestic. Its aim is also to secure the integrity of the national territory. 60
Second, there was no evidence or even an allegation on record that the local police
forces were inadequate to cope with the situation or apprehend the violators. If they
were inadequate, the recourse of the provincial governor was to ask the assistance of
the Secretary of Interior and Local Government, or such other authorized officials, for
the assistance of national law enforcement agencies. ADEaHT

The Local Government Code does not involve the diminution of central powers
inherently vested in the National Government, especially not the prerogatives solely
granted by the Constitution to the President in matters of security and defense.
The intent behind the powers granted to local government units is fiscal,
economic, and administrative in nature. The Code is concerned only with powers that
would make the delivery of basic services more effective to the constituents, 61 and
should not be unduly stretched to confer calling-out powers on local executives.
In the sponsorship remarks for Republic Act 7160, it was stated that the
devolution of powers is a step towards the autonomy of local government units (LGUs),
and is actually an experiment whose success heavily relies on the power of taxation of
the LGUs. The underpinnings of the Code can be found in Section 5, Article II of the
1973 Constitution, which allowed LGUs to create their own sources of revenue. 62
During the interpellation made by Mr. Tirol addressed to Mr. de Pedro, the latter
emphasized that "Decentralization is an administrative concept and the process of
shifting and delegating power from a central point to subordinate levels to promote
independence, responsibility, and quicker decision-making. . . . (I)t does not involve
any transfer of final authority from the national to field levels, nor diminution of
central office powers and responsibilities. Certain government agencies, including
the police force, are exempted from the decentralization process because their
functions are not inherent in local government units." 63
IV. Provincial governor is not
authorized to convene CEF
 Pursuant to the national policy to establish one police force, the organization of
private citizen armies is proscribed. Section 24 of Article XVIII of the Constitution
mandates that:
Private armies and other armed groups not recognized by duly constituted
authority shall be dismantled. All paramilitary forces including Civilian Home
Defense Forces (CHDF) not consistent with the citizen armed force established
in this Constitution,shall be dissolved or, where appropriate, converted into the
regular force.
Additionally, Section 21 of Article XI states that, "The preservation of peace and
order within the regions shall be the responsibility of the local police agencies which
shall be organized, maintained, supervised, and utilized in accordance with applicable
laws. The defense and security of the regions shall be the responsibility of the National
Government."
Taken in conjunction with each other, it becomes clear that the Constitution does
not authorize the organization of private armed groups similar to the CEF convened by
the respondent Governor. The framers of the Constitution were themselves wary of
armed citizens' groups, as shown in the following proceedings: SaAcHE

MR. GARCIA:
I think it is very clear that the problem we have here is a paramilitary force
operating under the cloak, under the mantle of legality is creating a
lot of problems precisely by being able to operate as an independent
private army for many regional warlords. And at the same time, this
I think has been the thrust, the intent of many of the discussions and
objections to the paramilitary units and the armed groups.
MR. PADILLA:
My proposal covers two parts: the private armies of political warlords and other
armed forces not recognized by constituted authority which shall be
dismantled and dissolved. In my trips to the provinces, I heard of many
abuses committed by the CHDF (Civilian Home Defense Forces),
specially in Escalante, Negros Occidental. But I do not know whether a
particular CHDF is approved or authorized by competent authority. If it
is not authorized, then the CHDF will have to be dismantled. If some
CHDFs, say in other provinces, are authorized by constituted authority,
by the Armed Forces of the Philippines, through the Chief of Staff or the
Minister of National Defense, if they are recognized and authorized, then
they will not be dismantled. But I cannot give a categorical answer to any
specific CHDF unit, only the principle that if they are armed forces which
are not authorized, then they should be dismantled. 64 (Emphasis supplied)
Thus, with the discussions in the Constitutional Commission as guide, the
creation of the Civilian Emergency Force (CEF) in the present case, is also invalid.
 WHEREFORE, the instant petition is GRANTED. Judgment is rendered
commanding respondents to desist from further proceedings in implementing
Proclamation No. 1 n, Series of 2009, and its Implementing Guidelines. The said
proclamation and guidelines are hereby declared NULL and VOID for having been
issued in grave abuse of discretion, amounting to lack or excess of jurisdiction.
SO ORDERED.
||| (Kulayan v. Tan, G.R. No. 187298, [July 3, 2012], 690 PHIL 72-103)