EN BANC

 

G.R. Nos. 176951, 177499 & 178056 (League of Cities of the Philippines, et al. v. Commission on Elections, et al.)

 

                                                          Promulgated:

 

                                                          August 24, 2010

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D I S S E N T I N G   O P I N I O N

                                                         

VELASCO, JR., J.:

           

As may be recalled, the Court, by Decision[1] dated November 18, 2008, declared as unconstitutional the sixteen (16) cityhood laws, namely Republic Act Nos. (RA) 9389, 9390, 9391, 9392, 9393, 9394, 9398, 9404, 9405, 9407, 9408, 9409, 9434, 9435, 9436, and 9491. By Decision of December 21, 2009, however, the Court declared as valid and constitutional the same Cityhood Laws, reversing, in the process, the November 18, 2008 Decision and setting aside three of its subsequent incidental orders issued after November 18, 2008.[2]

 

In this recourse, main petitioners pray, without prejudice to the resolution of their motion to annul the December 21, 2009 Decision, that the Court reconsider the same decision and declare the aforementioned 16 Cityhood Laws unconstitutional. As in their underlying petition for prohibition, they latched their case primarily on two grounds: First, the Cityhood Laws sought to create cities which do not meet one of the criteria, or, to be precise, the verifiable income norm stipulated in Section 450 of the Local Government Code (LGC) of 1991, as amended by RA 9009.[3]  Second, the said Cityhood Laws, by granting a different treatment to respondent local government units (LGUs), via an exemption from the standard PhP 100 million floor income requirement set under RA 9009, infringe the equal protection clause of the Constitution. As argued, the circumstance that the Cityhood Laws in question were filed and deliberated upon in the 11th and/or 12th Congress, or before the enactment of RA 9009 during the 12th Congress, does not constitute a substantive distinction exacted under the equal protection guarantee that would warrant a preferential treatment of respondent LGUs.

 

In their motion to annul, petitioner League of Cities of the Philippines  (LCP), et al. would urge the Court to declare as void its December 21, 2009 Decision on the argument that it had no jurisdiction to issue the same, the earlier November 18, 2008 decision being now immutable, having in the meanwhile become final and executory, as in fact an entry of judgment has been made thereon. 

 

For their part, intervening petitioners, in their separate, but similarly worded Manifestation with Supplemental Ad Cautelam Motion for Reconsideration, adopted in toto the arguments raised in main petitioners’ motion to annul and in the latter’s ad cautelam motion for consideration. All expressed dismay over the consequent reduction of their share in the internal revenue allotment (IRA), since more cities will partake of the internal revenue set aside for all cities under Sec. 285 of the LGC of 1991.[4]

In a bid to have the December 21, 2009 Decision declared as a nullity, petitioners argue, as a preliminary consideration, that the Court no longer has jurisdiction to modify, reconsider or set aside a final and executory, ergo unalterable judgment, like the November 18, 2008 Decision.

 

The majority finds the motions for reconsideration meritorious and accordingly reinstates the Court’s November 18, 2008 Decision declaring the 16 Cityhood Laws unconstitutional.

 

I regret my inability to join the majority.

 

Contrary to the majority’s posture, the subject November 18, 2008 Decision never really became final and executory, albeit it has been recorded in the Book of Entries of Judgments on May 21, 2009. It is settled that the doctrine of immutability of judgments necessarily applies only to final and executory decisions. Before such finality, a court has plenary power to alter, modify or altogether set aside its own decision. In fact, the power of the Court to suspend or even disregard rules of procedure can be so pervasive and compelling as to alter even that it itself has already declared the judgment to be final.[5]  This critical issue of finality––inclusive of the application of Sec. 7, Rule 56 of the Rules of Court[6] and A.M. No. 99-1-09-SC[7] on deadlock voting, read in conjunction with the constitutional voting requirement needed for a declaration of unconstitutionality of laws[8]––has been discussed in some detail in the December 21, 2009 Decision. I need not delve at length on the same issue again. Suffice it to hark back on some highlights of that disposition: Before the December 21, 2009 Decision, the inconclusive 6-6 tie vote reflected in the April 28, 2009 Resolution[9] of the Court––resolving the second motion for reconsideration of the November 18, 2008 Decision––was the last vote on the issue of the validity or invalidity of cityhood laws.[10] Significantly, while the April 28, 2009 Resolution denied, for being a “prohibited pleading,” the second motion for reconsideration covered thereby, for which reason an entry of judgment for the November 18, 2008 Decision was ordered made, the Court, in its Resolution of June 2, 2009,[11] reconsidered the April 28, 2009 Resolution.[12]  In net effect, the second motion for reconsideration of the November 18, 2008 Decision was no longer considered a prohibitive pleading. Several motions and pleadings followed. In all, then, the issuance of the entry of judgment for the November 18, 2008 Decision was precipitate not only because several incidents were pending before the Court when the entry was made on May 21, 2009, but in view of the 6-6 tie vote on the second motion for reconsideration of the November 18, 2008 ruling. That voting result obviously does not reflect the “[decision] x x x of a majority of the Members of the [Court en banc] who actually took part in the deliberations on the issues of the case and voted thereon,” contemplated in Sec. 4 (2), Art. VIII of the Constitution.[13]  A deadlocked vote of six is not a majority and a non-majority does not constitute a rule with precedential value.[14]              

 

          For sure, the issuance of an entry of judgment, by itself, does not, as the majority suggests, bar the Court, under any and all instances, from considering further submissions and from altering, if it must to avoid grave injustice, a decision covered thereby. For, the recall of entries of judgment for the purpose of reevaluating a case, albeit rare, is hardly a novelty. The Court has in the past bent backwards and recalled entries of judgment in the interest of justice. [15] For it is in relaxing the rules that the Court oftentimes serves the ends of justice and equity based on substantial and meritorious grounds.

 

          Albeit not touched upon in the Resolution subject of this Dissent, petitioners have brought up the question of the appropriateness of the participation of certain members of the Court, particularly with respect to the Decision subject of the motion to annul. This Dissent will endeavor to address and perchance write finis to this issue.

 

To petitioners, the votes cast by Justices Diosdado M. Peralta, Lucas P. Bersamin,  Roberto A. Abad and Martin S. Villarama, Jr., for or against the December 21, 2009 Decision, should be excluded. For as argued, under Sec. 4(2), Article VIII of the Constitution, all cases involving the constitutionality of law shall be heard by the Court en banc and  “shall be decided with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon.”  Following what to the Court is petitioners’ thesis, applying the aforecited Section 4(2), those who may participate and vote on the December 21, 2009 Decision shall be limited to those who actually took part in the deliberations on the issues on the case and voted thereon,[16] the reference being to the members of the Court who actually took part in the November 18, 2008 Decision and voted thereon.[17] And the four (4) aforementioned members of the Court did not participate in the deliberations of the issues leading to the issuance of the November 18, 2008 Decision simply because they were not yet members of the Court.[18] 

 

Petitioners’ above posture is flawed by the logic and premises holding it together. For, it assumes that the constitutionality of the Cityhood Laws and the arguments for and against the proposition were not put in issue, discussed, resolved and voted upon in the December 21, 2009 Decision. The sheer absurdity of this assumption needs no belaboring. But the bottom line is that said decision, for reasons articulated therein, expressly declared the Cityhood Laws to be valid and constitutional.

 

As a matter of record,[19] eleven (11) members of the Court actually took part in the deliberation on the issues presented in G.R. Nos. 176951, 177499 and 178056 and voted on the November 18, 2008 Decision.[20] Three (3) members took no part,[21] while one (1) was on official leave.[22]  As of December 21, 2009, only six (6)[23] of the original eleven (11) participating and voting members remained with the Court, the five (5) others[24] having meanwhile retired.  If the participants in the December 21, 2009 Decision were to be limited to the members of the Court who actually took part in the deliberations of the November 18, 2008 Decision, as petitioners in all seriousness now contend, then only the six (6) members referred to above could have had validly participated and voted on the Decision of December 21, 2009. That would not even constitute a quorum of the en banc Court, as aptly pointed out by respondents.[25]  And for sure, the same six (6) members could not even pass upon the main and intervening petitioners’ motion for reconsideration, if their position were to be pursued to its logical conclusion.   

 

Now to the substantive merits of the case. 

 

The majority would insist that a city, as prescribed by Art. X, Sec. 10[26] of the Constitution, may be created only in accordance with the criteria established in the LGC. In specific terms, this means that any cityhood law must meet all criteria, such as the income criterion, presently set forth in Sec. 450 of the LGC of 1991, as amended by RA 9009. Congress cannot, so the majority claims, write such criteria in any other law.[27]

 

I disagree. If only to emphasize the point, the word “code” in the cited constitutional provision refers to a law Congress enacts in line with its plenary power to create local political subdivisions. As was said in the December 21, 2009 Decision––but without going presently into the qualificatory details therein spelled out––the only conceivable reason why the Constitution employs the clause “in accordance with the criteria established in the local government code” is to lay stress that it is Congress alone, and no other, which can define, prescribe and impose the criteria. The imposition may be effected either in a consolidated set of laws or a single-subject enactment, like RA 9009. And provided the imperatives of the equal protection clause are not transgressed, an exemption from the imposition may be allowed, just like the cityhood laws each of which contained the following provision: “Exemption from [RA] No. 9009. – The City of x x x shall be exempted from the income requirement prescribed under Republic Act No. 9009.”  I find it rather startling, therefore, that the majority opinion, without so much as taking stock of the legislative history of the 16 Cityhood Laws in relation to RA 9009, at least to determine the intent of the law,  would conclude that Congress “exceeded and abused its law-making power”[28] when it enacted the said cityhood laws as an exception to RA 9009. It cannot be emphasized enough that if Congress has the plenary power to create political units, it surely can exercise the lesser power of requiring a menu of criteria and standards for their creation. As it is, the amendatory RA 9009 increasing the codified income requirement from Php 20 million to Php 100 million is really no different from the enactment of any of the Cityhood Law exempting the unit covered thereby from the codified standards.

 

The majority’s contention––that the exemption from the income requirement accorded by the Cityhood Laws to respondent cities is unconstitutional, being violative of the equal protection clause––does not commend itself for concurrence. As articulated in the December 21, 2009 Decision, the equal protection clause is not violated by an enactment based on reasonable classification, the reasonableness factor being met when the classification: (1) rests on substantial distinctions; (2) is germane to the purpose of the law; (3) is not limited to existing conditions only; and (4) applies equally to all members of the same class.[29]  As then amply explained in the said Decision, all these requisites have been met by the laws assailed in this proceeding as arbitrary and discriminatory under the equal protection clause. And I presently reiterate my submission that the exemption of respondent LGUs from the PhP 100 million income requirement was meant to reduce the inequality brought about by the passage of the amendatory RA 9009, which, from the records, appears to have been enacted after the affected LGUs, with pending cityhood bills, had qualified under the original PhP 20 million income norm.

 

 It is maintained that the distinguishing characteristic setting respondent cities apart from other LGUs desirous to be cities, i.e., mere pendency of the cityhood bills in the 11th Congress, would not avail respondent cities any.  The differential treatment of respondent LGUs based on that characteristic does not, per the majority, constitute a valid classification because the classification applies only to the conditions prevailing during the 11th Congress, a phenomenon that will not happen again. It may readily be conceded that the conditions adverted to can no longer be repeated. But the scenario thus depicted by the majority would not render the legislative classification unconstitutionally arbitrary. As long as the classifying law is not limited in its application to conditions prevailing as of the time of its enactment, but is intended to apply for all times as long as the contemplated conditions exist, then there is no sufficient ground for invalidation. This is what Congress precisely did, as it in fact applied the classification for as long as the conditions were obtaining. These conditions to repeat are: the corresponding cityhood bill has been filed before the effectivity of RA 9009 and the concerned municipality qualifies for cityhood status under the original version of the 1991 LGC.

 

 The allegation that Congress made, under the premises, an unreasonable classification in favor of a few privileged LGUs cannot be accepted. As respondents aptly observed, the classification was enforced, not on a single instance, but on sixteen (16) instances which spanned several months involving erstwhile municipalities spread across the archipelago, from the municipality of Batac in the North to the municipality of Lamitan, Basilan in Southern Mindanao.

 

The ensuing excerpts from the December 21, 2009 Decision aptly capture the situation on the ground and should address the majority’s equal protection of the law concern:

 

Lastly and in connection with the third requisite, the uniform exemption clause would apply to municipalities that had pending cityhood bills before the passage of R.A. No. 9009 and were compliant with the then Sec. 450 of the LGC of 1991 that prescribed an income requirement of P20 Million. It is hard to imagine, however, if there are still municipalities out there belonging in context to the same class as the sixteen (16) respondent LGUs. Municipalities which cannot claim as belonging to the same class as the sixteen cannot seek refuge in the cityhood laws. As to them, they have to comply with the P100 Million income requirement imposed by R.A. 9009.

 

 

 The issue voiced by the intervening movant-petitioners about the eventual reduction of their IRA share resulting from the creation of the sixteen (16) respondent cities is a matter worth looking into, but not by the Court, absent proof that the cityhood laws created an arbitrary classification. Under our system of government, it is Congress that for the most part is possessed with authority to balance clashing interests of different local political subdivisions and thereafter draw the line and set policy directions and choices responsive to their fiscal demands and needs. And to borrow from Quinto v. Comelec, “the constitutionality of the law must be sustained even if the reasonableness of the classification is ‘fairly debatable.’ As long as ‘the bounds of reasonable choice’ are not exceeded, courts must defer to the legislative judgment.”[30]  This is as it should be for courts ought not to be delving into the wisdom of the congressional classification, if reasonable, or the motivation underpinning the classification.[31] Yet, wittingly or unwittingly, this seems to be what the majority opinion intends to accomplish in this case. This should not be allowed.

 

The majority resolution has made much of the invocation in the December 21, 2009 of the operative fact doctrine, stating the observation that the minority has adopted a theory that an unconstitutional law, if already implemented prior to its declaration, can no longer be revoked and its implementation must be continued despite being unconstitutional. In context, the assailed invocation was no more than a recognition that the creation of cities, or at least some of them, pursuant to the Cityhood Laws, has been approved by a majority of the votes cast in the plebiscite in the units affected. And as a result of such approval, official transactions with long term implementability may have been entered into which cannot be easily undone without legal and financial complications. Thus, the advisability on practical consideration, on top of strictly legal grounds consideration, of positing the constitutionality of the Cityhood Laws in question. What the majority deems as a minority did not say that a law otherwise invalid, cannot be invalidated by operation of the operative fact doctrine.

 

   Accordingly, I vote to deny the ad cautelam motion for consideration and the motion to annul the Decision of the Court dated December 21, 2009 interposed by petitioners League of Cities of the Philippines, et al., and the ad cautelam motion for reconsideration of the same decision separately filed by the intervening-petitioners Batangas City, Santiago City, Legazpi City, Iriga City, Cadiz City and Oroquieta City.

 

 

                                      PRESBITERO J. VELASCO, JR.

                                                  Associate Justice

[1] Penned by Sr. Justice Antonio T. Carpio, the Decision was promulgated on a vote of 6-5. Justices Quisumbing (now ret.), Austria-Martinez (now ret.), Carpio-Morales, Velasco, Jr., and Brion concurred.  Justices Corona, Azcuna (now ret.), Chico-Nazario (now ret.), and Leonardo de Castro joined the Dissenting Opinion of Justice Ruben T. Reyes (now ret.)  

[2] Those who voted to reverse the November 18, 2008 Decision were Justices Corona (now Chief Justice), Velasco, Jr. (ponente), Leonardo de Castro, Bersamin, Abad and Villarama, Jr. Justice Carpio dissented and the following joined him in his Dissenting Opinion: Justices Carpio Morales, Brion and Peralta. Justice Mariano del Castillo took no part.

[3] As amended by RA 9009, Sec. 450 of the LGC of 1991 provides that a municipality may be converted into a component city if it has a certified locally generated average annual income of at least PhP 100 million for the last two (2) consecutive years based on 2000 constant prices.

[4] Section 285 of the 1991 LGC provides: Allocation to Local Government Units. — The share of [LGUs] in the [IRA] shall be allocated in the following manner:  

                (a)           Provinces — Twenty-three percent (23%);

                (b)           Cities — Twenty-three percent (23%);

                (c)           Municipalities — Thirty-four percent (34%); and

                (d)           Barangays — Twenty percent (20%)

                Provided, however, That the share of each province, city, and municipality shall be determined on the basis of the following formula:  

                (a)           Population — Fifty percent (50%);

                (b)           Land Area — Twenty-five percent (25%); and

(c)           Equal sharing — Twenty-five percent (25%)

[5] Manotok v. Barque, G.R. Nos. 162335 & 162605, December 18, 2008; citing Ginete v. Court of Appeals, 292 SCRA 38 (1988).

[6] SEC. 7. Procedure if opinion is equally divided. – Where the court en banc is equally divided in opinion, or the necessary majority cannot be had, the case shall again be deliberated on, and if after such deliberation no decision is reached, the original action commenced in the court shall be dismissed; in appealed cases, the judgment or order appealed from shall stand affirmed; and on all incidental matters, the petition or motion shall be denied.

[7] SEC. 7. Procedure if opinion is equally divided. – Where the court en banc is equally divided in opinion, or the necessary majority cannot be had, the case shall again be deliberated on, and if after such deliberation no decision is reached, the original action commenced in the court shall be dismissed; in appealed cases, the judgment or order appealed from shall stand affirmed; and on all incidental matters, the petition or motion shall be denied.

[8] Sec. 4 (2) [Art. VIII]. All cases involving the constitutionality of a treaty, international or executive agreement, or law shall be heard by the Supreme Court en banc, x x x shall be decided with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon.

[9] The Resolution partly reads:

By a vote of 6-6, the Motion for Reconsideration of the Resolution of 31 March 2009 [denying respondent cities’ motion for reconsideration of the November 18, 2008] is denied for lack of merit. The motion is denied since there is no majority that voted to overturn the Resolution of 31 March 2009.

The Second Motion for Reconsideration of the Decision of December 18, 2008 is Denied for being a prohibited pleading. x x x No further pleading shall be entertained. Let entry of judgment be made in due course.

Justice Presbitero J. Velasco, Jr. wrote a Dissenting Opinion joined by [five others] x x x.

[10] The second motion for reconsideration dated April 14, 2009 which was disposed of in the April 28, 2009 Resolution dealt with the issue of constitutionality of the cityhood laws and addressed the grounds upon which the November 18, 2008 Decision was predicated.

[11]  In part the Resolution reads: “In the present case, the Court voted on the second motion for reconsideration filed by respondent cities. In effect, the Court allowed the filing of the second motion for reconsideration. Thus the second motion for reconsideration was no longer a prohibited pleading x x x considering the finality of the 18 November 2008 Decision which was recorded in the Book of Entries.”

[12] Respondents filed on July 7, 2009 a Motion for Reconsideration of the Resolution of June 2, 2009.

[13] Id.

[14] Justice Puno’s separate opinion in Lambino v. COMELEC, 505 SCRA 160 (2006).

[15]  Tan Tiac Chiong v. Hon. Cosico, 434 Phil. 753 (2002); Manotok v. Barque, supra.

[16] Petitioners’ Petition to Annul, pp. 5-7.

[17] Id. at 6. Justice Peralta voted in the Resolution of March 31, 2009 resolving the December 9, 2008 first motion for reconsideration of the November 18, 2008 Decision.

[18] Justice Peralta, the most senior of the five, was appointed on January 14, 2009.

[19] Rollo (G.R. No. 178056), pp. 2764-2765.

[20] Justices Quisumbing, Carpio, Austria-Martinez, Carpio-Morales, Velasco, Jr. and Brion, voting against the constitutionality; and Justices Corona, Azcuna Chico-Nazario, Leonardo-de Castro and Reyes, voting for the constitutionality.

[21] Chief Justice Puno and Justice Nachura.

[22] Justice Santiago.

[23] Justices Carpio, Corona, Carpio-Morales, Velasco, Jr.,  Brion, and Leonardo-de Castro.

[24] Justices Quisumbing, Chico Nazario, Azcuna, Austria Martinez, and Reyes.

[25] Comment of respondent-cities on petitioner LCP’s motion to annul, p. 21.

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

[27] Resolution, p. 6.

[28] Majority Resolution, p. 14.

[29] Bernas, The 1987 Constitution of the Republic of the Philippines, A Commentary 124 (1996); citing People v. Cayat, 68 Phil. 12, 18 (1939).

[30] Quinto v. COMELEC, G.R. No. 189698, February 22, 2010; citing Newark Superior Officers Ass’n v. City of Newark, 98 N.J. 212, 227, 486 A. 2d 305 (1985) and other cases.

[31] Pangilinan v. Malaya, G.R. No. 104216, August 20, 1993, 225 SCRA 551.