Republic of the
Supreme Court
|
RODOLFO
G. NAVARRO, VICTOR F. BERNAL, and RENE
O. MEDINA, Petitioners, -
versus – EXECUTIVE
SECRETARY EDUARDO ERMITA, representing the President of the Philippines;
Senate of the Philippines, represented by
the SENATE PRESIDENT; House of
Representatives, represented by the HOUSE SPEAKER; GOVERNOR ROBERT ACE S.
BARBERS, representing the mother province of Surigao del Norte; GOVERNOR
GERALDINE ECLEO VILLAROMAN, representing the new Province of Dinagat Islands, Respondents. |
G.R. No. 180050 Present:
Puno, C.J., CARPIO, CARPIO MORALES, velasco, jr., nachura, LEONARDO-DE
CASTRO, BRION, PERALTA, BERSAMIN, DEL CASTILLO, ABAD, VILLARAMA, JR., perez, and MENDOZA, JJ. Promulgated: February
10, 2010 |
x----------------------------------------------------------------------------------------x
D E C I S I O N
PERALTA, J.:
This is a petition for certiorari under Rule 65 of the Rules of Court seeking to
nullify Republic Act (R.A.) No. 9355, otherwise
known as An Act Creating the Province of
Dinagat Islands, for being unconstitutional.
Petitioners
Rodolfo G. Navarro, Victor F. Bernal, and Rene O. Medina aver that they are
taxpayers and residents of the
The facts are as follows:
The mother
Based on the official
2000 Census of Population and Housing conducted by the National Statistics
Office (NSO),[2]
the population of the Province of
Surigao del Norte as of May 1, 2000 was 481,416, broken down as follows:
Mainland 281,111
Siargao Island & Bucas Grande 93,354
Dinagat
Island 106,951
Under Section 461
of R.A. No. 7610, otherwise known as The
Local Government Code, a province may be created if it has an average
annual income of not less than P20 million based on 1991 constant prices
as certified by the Department of Finance, and a population of not less than
250,000 inhabitants as certified by the NSO, or a contiguous territory of at
least 2,000 square kilometers as certified by the Lands Management Bureau. The
territory need not be contiguous if it comprises two or more islands or is
separated by a chartered city or cities, which do not contribute to the income
of the province.
On April 3, 2002, the Office of the President,
through its Deputy Executive Secretary for Legal Affairs, advised the Sangguniang Panlalawigan of the Province
of Surigao del Norte of the deficient
population in the proposed Province of
Dinagat Islands.[3]
In July 2003,
the Provincial Government of Surigao del Norte conducted a special census, with
the assistance of an NSO District Census Coordinator, in the Dinagat Islands to
determine its actual population in support of the house bill creating the
Province of Dinagat Islands. The special census yielded a population count of
371,576 inhabitants in the proposed province. The NSO, however, did not certify
the result of the special census. On July 30, 2003, Surigao del Norte
Provincial Governor Robert Lyndon S.
Barbers issued Proclamation No. 01, which declared as official, for all
purposes, the 2003 Special Census in Dinagat Islands showing a population of
371,576.[4]
The Bureau of
Local Government Finance certified that the average annual income of the
proposed Province of Dinagat Islands for calendar year 2002 to 2003 based on
the 1991 constant prices was P82,696,433.23. The land area of the proposed province is 802.12
square kilometers.
On
On December 2,
2006, a plebiscite was held in the mother
Province of Surigao del Norte to determine whether the local government units
directly affected approved of the
creation of the Province of Dinagat Islands into a distinct and independent
province comprising the municipalities of Basilisa, Cagdianao, Dinagat, Libjo
(Albor), Loreto, San Jose, and Tubajon.
The result of the plebiscite yielded 69,943 affirmative votes and 63,502
negative votes.[5]
On
On
Petitioners contended
that the creation of the Province of Dinagat Islands under R.A. No. 9355 is not
valid because it failed to comply with either the population or land area requirement prescribed
by the Local Government Code.
Petitioners prayed that R.A.
No. 9355 be declared unconstitutional, and that all subsequent appointments and elections
to the new vacant positions in the newly created Province of Dinagat Islands be
declared null and void. They also prayed
for the return of the municipalities of the Province of Dinagat Islands and the
return of the former districts to the mother Province of Surigao del Norte.
Petitioners raised the following issues:
I
WHETHER OR NOT REPUBLIC
ACT NO. 9355, CREATING THE NEW PROVINCE OF DINAGAT ISLANDS, COMPLIED WITH THE
CONSTITUTION AND STATUTORY REQUIREMENTS UNDER SECTION 461 OF REPUBLIC ACT NO.
7160, OTHERWISE KNOWN AS THE LOCAL GOVERNMENT CODE OF 1991.
II
WHETHER OR NOT THE CREATION OF DINAGAT AS A
NEW PROVINCE BY THE RESPONDENTS IS AN ACT OF GERRYMANDERING.
III
WHETHER OR NOT THE
RESULT OF THE PLEBISCITE IS CREDIBLE AND TRULY REFLECTS THE MANDATE OF THE
PEOPLE.[8]
In her Memorandum, respondent Governor Geraldine
B. Ecleo-Villaroman of the Province of Dinagat Islands raises procedural issues. She contends that petitioners do not have the
legal standing to question the constitutionality of the creation of the
Province of Dinagat, since they have not been directly injured by its creation and are without substantial interest over the matter in
controversy. Moreover, she alleges that the petition is moot and academic
because the existence of the Province of Dinagat Islands has already commenced;
hence, the petition should be dismissed.
The contention is without merit.
In Coconut Oil
Refiners Association, Inc. v. Torres,[9] the Court held that in
cases of paramount importance where serious constitutional questions are
involved, the standing requirements may be relaxed and a suit may be allowed to
prosper even where there is no direct injury to the party claiming the right of
judicial review. In the same vein, with respect to other alleged procedural
flaws, even assuming the existence of such defects, the Court, in the exercise
of its discretion, brushes aside these technicalities and takes cognizance of
the petition considering its importance and in keeping with the duty to
determine whether the other branches of the government have kept themselves
within the limits of the Constitution.[10]
Further, supervening events, whether intended or
accidental, cannot prevent the Court from rendering a decision if there is a
grave violation of the Constitution.[11] The courts will decide a question otherwise
moot and academic if it is capable of repetition, yet evading review.[12]
The main issue is whether or not R.A. No. 9355 violates Section 10,
Article X of the Constitution.
Petitioners contend
that the proposed Province of Dinagat Islands is not qualified to become a
province because it failed to comply with the land area or the population
requirement, despite its compliance with the income requirement. It has a total land area of only 802.12
square kilometers, which falls short of the statutory requirement of at least
2,000 square kilometers. Moreover, based
on the NSO 2000 Census of Population, the
total population of the proposed Province of
Petitioners allege that in enacting R.A. No. 9355 into law, the House
of Representatives and the Senate erroneously relied on paragraph 2 of Article 9
of the Rules and Regulations Implementing the Local Government Code of 1991, which
states that “[t]he land area requirement
shall not apply where the proposed province is composed of one (1) or more
islands.”[13]
The
preceding italicized provision contained in the Implementing Rules and
Regulations is not expressly or impliedly stated as an exemption to the land
area requirement in Section 461 of the Local Government Code. Petitioners assert that when the Implementing
Rules and Regulations conflict with the law that they seek to implement, the
law prevails.
On the other
hand, respondents contend in their respective Memoranda that the Province of
Dinagat Islands met the legal standard for its creation.
First, the Bureau of Local Government Finance
certified that the average annual income of the proposed Province of Dinagat
Islands for the years 2002 to 2003 based on the 1991 constant prices was P82,696,433.25.
Second, the Lands Management Bureau certified
that though the land area of the Province of Dinagat Islands is 802.12 square
kilometers, it is composed of one or more islands; thus, it is exempt from the
required land area of 2,000 square kilometers under paragraph 2 of Article 9 of
the Rules and Regulations Implementing the Local Government Code.
Third, in the
special census conducted by the Provincial Government of Surigao del Norte,
with the assistance of a District Census Coordinator of the NSO, the number of
inhabitants in the Province of Dinagat
Islands as of 2003, or almost three years before the enactment of R.A. No. 9355
in 2006, was 371,576, which is more than the minimum requirement of 250,000
inhabitants.
In his
Memorandum, respondent Governor Ace S. Barbers contends that although the
result of the special census conducted by the Provincial Government of Surigao
del Norte on
The Ruling of the Court
The petition is granted.
The
constitutional provision on the creation of a province in Section 10, Article X
of the Constitution states:
SEC. 10. No province, city, municipality, or barangay
may be created, divided, merged, abolished, or its boundary substantially
altered, except in accordance with the
criteria established in the local government code and subject to approval
by a majority of the votes cast in a plebiscite in the political units directly
affected.”[14]
Pursuant to the Constitution,
the Local Government Code of 1991 prescribed the criteria for the creation of a
province, thus:
SEC. 461. Requisites for Creation. -- (a) A province may be created if it has an average annual income, as certified by the Department of Finance, of not less
than Twenty million pesos (P20,000,000.00) based on 1991
constant prices and either of the following requisites:
(i) a contiguous territory
of at least two thousand (2,000)
square kilometers, as certified by the Lands Management Bureau; or
(ii) a population
of not less than two hundred
fifty thousand (250,000) inhabitants as certified by the National Statistics Office:
Provided, That, the creation thereof shall not reduce the land area, population,
and income of the
original unit or units at the time of said creation to less than the minimum requirements prescribed herein.
(b) The territory need not be contiguous if it
comprises two (2) or more islands or is separated by a chartered city or cities
which do not contribute to the income of the province.
(c) The average
annual income shall include the income accruing to the general fund, exclusive of special funds, trust funds,
transfers, and non-recurring income.[15]
As a
clarification of the territorial requirement, the Local Government Code
requires a contiguous territory
of at least 2,000 square kilometers, as certified by the Lands Management
Bureau. However, the territory need
not be contiguous if it comprises two (2) or more islands or is separated by a chartered
city or cities that do not contribute to the income of the province.
If a proposed province is
composed of two or more islands, does “territory,” under Sec. 461 of the Local Government
Code, include not only the land mass
above the water, but also that which is beneath it?
To answer the question
above, the discussion in Tan v.
Commission on Elections (COMELEC)[16] is enlightening.
In Tan v. COMELEC, petitioners therein
contended that Batas Pambansa Blg. 885, creating the new Province of Negros del
Norte, was unconstitutional for it was not in accord with Art. XI, Sec. 3 of
the Constitution, and Batas Pambansa Blg. 337, the former Local Government
Code. Although what was applicable then
was the 1973 Constitution and the former Local Government Code, the provisions pertinent to the case are substantially similar to the provisions
in this case.
Art. XI, Sec. 3 of the 1973 Constitution provides:
Sec. 3. No
province, city, municipality or barrio (barangay in the 1987 Constitution) may
be created, divided, merged, abolished, or its boundary substantially altered
except in accordance with the criteria established in the local government
code, and subject to the approval by a majority of the votes in a plebiscite in
the unit or units affected.
The requisites for the creation of a province in
Sec. 197 of Batas Pambansa Blg. 337 are similar to the requisites in Sec. 461 of
the Local Government Code of 1991, but the requirements for population and
territory/land area are lower now, while the income requirement is higher. Sec.
197 of Batas Pambansa Blg. 337, the former Local Government Code, provides:
SEC.
197.—Requisites for Creation.—A
province may be created if it has a
territory of at least three thousand five hundred square kilometers, a population of at least five hundred
thousand persons, an average estimated annual
income, as certified by the Ministry of Finance, of not less than ten
million pesos for the last three consecutive years, and its creation shall not
reduce the population and income of the mother province or provinces at the
time of said creation to less than the minimum requirements under this
section. The territory need not be contiguous if it comprises two or more
islands.
The average estimated annual income shall include
the income allotted for both the general and infrastructure funds, exclusive of
trust funds, transfers and nonrecurring income.[17]
In Tan v. COMELEC, petitioners therein filed
a case
for Prohibition for the purpose of stopping the COMELEC from conducting
the plebiscite scheduled on January 3, 1986. Since the Court was in recess, it
was unable to consider the petition on time.
Petitioners filed a supplemental pleading, averring that the plebiscite
sought to be restrained by them was held as scheduled, but there were still
serious issues raised in the case affecting the legality, constitutionality and
validity of such exercise which should properly be passed upon and resolved by
the Court.
At issue in Tan was the land area of the new
Province of Negros del Norte, and the validity of the
plebiscite, which did not include voters of the parent Province of
Negros Occidental, but only those living within the territory of the new Province
of Negros del Norte.
The Court held that the plebiscite should have
included the people living in the area of the proposed new province and those
living in the parent province. However, the Court did not direct the conduct of
a new plebiscite, because the factual and legal basis for the creation of the
new province did not exist as it failed to satisfy the land area requirement;
hence, Batas Pambansa Blg. 885, creating the new Province of Negros del Norte,
was declared unconstitutional. The Court found that the land area of the new
province was only about 2,856 square kilometers, which was below the statutory
requirement then of 3,500 square kilometers.
Respondents
in Tan insisted that when the Local Government Code speaks of the
required territory of the province to be created, what is contemplated is not
only the land area, but also the land and water over which the said province
has jurisdiction and control. The
respondents submitted that in this regard, the marginal sea within the three
mile limit should be considered in determining the extent of the territory of
the new province.
The Court stated that “[s]uch an
interpretation is strained, incorrect and fallacious.”[18] It held:
The last sentence of the first paragraph of Section
197 is most revealing. As so stated therein the "territory need not be contiguous if it comprises two or more islands."
The use of the word territory in this particular provision of the Local Government Code
and in the very last sentence thereof, clearly, reflects that "territory" as therein used,
has reference only to the mass of land area and excludes the waters over which
the political unit exercises control.
Said sentence states that the "territory need
not be contiguous." Contiguous means (a) in physical contact; (b) touching
along all or most of one side; (c) near, [n]ext, or adjacent (Webster's New
World Dictionary, 1972 Ed., p. 307). "Contiguous,"
when employed as an adjective, as in the above sentence, is only used when it
describes physical contact, or a touching of sides of two solid masses of
matter. The meaning of particular terms in a statute may be ascertained by
reference to words associated with or related to them in the statute (Animal
Rescue League vs. Assessors, 138 A.L.R., p. 110). Therefore, in the context of
the sentence above, what need not be "contiguous" is the
"territory" — the physical mass of land area. There would arise no need
for the legislators to use the word contiguous if they had intended that the
term "territory" embrace not only land area but also territorial
waters. It can be safely concluded
that the word territory in the first paragraph of Section 197 is meant to be
synonymous with "land area" only. The words and phrases used in a
statute should be given the meaning intended by the legislature (82 C.J.S., p.
636). The sense in which the words are used furnished the rule of construction (In
re Winton Lumber Co., 63 p. 2d., p. 664).[19]
The
discussion of the Court in Tan on the definition and usage of the
terms “territory,” and “contiguous,” and the meaning of the provision, “The
territory need not be contiguous if it comprises two or more islands,”
contained in Sec. 197 of the former Local Government Code, which provides for the requisites in the creation of a new province, is
applicable in this case since there is
no reason for a change in their respective definitions, usage, or meaning in
its counterpart provision in the present Local Government Code contained in
Sec. 461 thereof.
The territorial requirement in the Local
Government Code is adopted in the Rules and Regulations Implementing the Local
Government Code of 1991 (IRR),[20] thus:
ART. 9. Provinces.—(a) Requisites for
creation—A province shall not be created unless the following requisites on
income and either population or land area are present:
(1)
Income
— An average annual income of not less than Twenty Million Pesos (P20,000,000.00)
for the immediately preceding two (2) consecutive years based on 1991 constant
prices, as certified by DOF. The average
annual income shall include the income accruing to the general fund, exclusive
of special funds, special accounts, transfers, and nonrecurring income; and
(2) Population or land area - Population which
shall not be less than two hundred fifty thousand (250,000) inhabitants, as
certified by National Statistics Office; or land area which must be contiguous with an area of at least two
thousand (2,000) square kilometers, as certified by LMB. The territory need not
be contiguous if it comprises two (2) or more islands or is separated by a
chartered city or cities which do not contribute to the income of the province.
The
land area requirement shall not apply where the proposed province is composed
of one (1) or more islands. The territorial jurisdiction of a province
sought to be created shall be properly identified by metes and bounds.
However,
the IRR went beyond the criteria prescribed
by Section 461 of the Local Government Code when it added the italicized
portion above stating that “[t]he
land area requirement shall not apply where the proposed province is composed
of one (1) or more islands.” Nowhere in the Local Government Code is the said
provision stated or implied. Under
Section 461 of the Local Government Code, the only instance when the territorial
or land area requirement need not be complied with is when there is already
compliance with the population requirement. The Constitution requires
that the criteria for the creation of a province, including any exemption from such criteria, must all be written in
the Local Government Code.[21] There is no dispute that in case of
discrepancy between the basic law and the rules and regulations implementing the
said law, the basic law prevails, because the rules and regulations cannot go
beyond the terms and provisions of the basic law.[22]
Hence, the Court holds that the
provision in Sec. 2, Art. 9 of the IRR stating that “[t]he
land area requirement shall not apply where the proposed province is composed
of one (1) or more islands” is null and void.
Respondents, represented by the Office of the
Solicitor General, argue that rules and regulations have the force and effect
of law as long as they are germane to the objects and purposes of the law. They contend that the exemption from the land
area requirement of 2,000 square kilometers is germane to the purpose of the
Local Government Code to develop political and territorial subdivisions into
self-reliant communities and make them more effective partners in the
attainment of national goals.[23]
They assert that in
Holy Spirit Homeowners
Association, Inc. v. Defensor,[24] the Court declared as valid the implementing
rules and regulations of a statute, even though the administrative agency added
certain provisions in the implementing rules that were not found in the law.
In Holy Spirit Homeowners Association, Inc. v.
Defensor, the provisions in the implementing rules and regulations, which
were questioned by petitioner therein, merely
filled in the details in accordance with a known standard. The law that was questioned was R.A. No. 9207,
otherwise known as “National Government Center (NGC) Housing and Land
Utilization Act of 2003.” It was therein
declared that the “policy of the State [was] to secure the land tenure of the
urban poor. Toward this end, lands located in the NGC,
Petitioners therein
contended that while Sec. 3.2 (a.1) of the
IRR fixed the selling rate of a lot at P700.00 per sq. m., R.A. No. 9207
did not provide for the price. In addition, Sec. 3.2 (c.1) of the IRR penalizes
a beneficiary who fails to execute a contract to sell within six (6) months
from the approval of the subdivision plan by imposing a price escalation, while
there is no such penalty imposed by R.A. No. 9207. Thus, they conclude that the
assailed provisions conflict with R.A. No. 9207 and should be nullified.
In Holy Spirit Homeowners Association, Inc.,
the Court held:
Where
a rule or regulation has a provision not expressly stated or contained in the
statute being implemented, that provision does not necessarily contradict the
statute. A legislative rule is in the nature of subordinate legislation,
designed to implement a primary legislation by providing the details thereof. All that is required is that the
regulation should be germane to the objects and purposes of the law; that
the regulation be not in contradiction to but in conformity with the standards
prescribed by the law.
In Section 5 of R.A. No. 9207, the
Committee is granted the power to administer, formulate guidelines and
policies, and implement the disposition of the areas covered by the law.
Implicit in this authority and the statute’s objective of urban poor housing is
the power of the Committee to formulate the manner by which the reserved
property may be allocated to the beneficiaries. Under this broad power, the Committee
is mandated to fill in the details
such as the qualifications of beneficiaries, the selling price of the lots, the
terms and conditions governing the sale and other key particulars necessary to
implement the objective of the law. These details are purposely omitted from the
statute and their determination is left to the discretion of the Committee
because the latter possesses special knowledge and technical expertise over
these matters.
The Committee’s authority to fix the
selling price of the lots may be likened to the rate-fixing power of
administrative agencies. In case of a delegation of rate-fixing power, the
only standard which the legislature is required to prescribe for the guidance
of the administrative authority is that the rate be reasonable and just.
However, it has been held that even in the absence of an express requirement as
to reasonableness, this standard may be implied. In this regard, petitioners do
not even claim that the selling price of the lots is unreasonable.
The provision on the price
escalation clause as a penalty imposed to a beneficiary who fails to execute a
contract to sell within the prescribed period is also within the Committee’s
authority to formulate guidelines and policies to implement R.A. No. 9207. The
Committee has the power to lay down the terms and conditions governing the
disposition of said lots, provided that these are reasonable and just. There is nothing objectionable about
prescribing a period within which the parties must execute the contract to
sell. This condition can ordinarily be found in a contract to sell and is not
contrary to law, morals, good customs, public order, or public policy.[25]
Hence, the provisions in the implementing rules and
regulations that were questioned in Holy
Spirit Homeowners Association, Inc. merely filled in the necessary details
to implement the objective of the law in accordance with a known standard, and
were thus germane to the purpose of the law.
In this case, the pertinent
provision in the IRR did not fill in any detail in accordance with a known
standard provided for by the law.
Instead, the IRR added an
exemption to the standard or criteria prescribed by the Local Government
Code in the creation of a province as regards the land area requirement, which exemption is not found in the Code. As such, the provision in the IRR that the land area
requirement shall not apply where the proposed province is composed of one or
more islands is not in conformity with the standard or criteria prescribed by
the Local Government Code; hence, it is null and void.
Contrary to the contention of respondents, the extraneous
provision cannot be considered as germane to the purpose of the law to develop territorial
and political subdivisions into self-reliant communities because, in the first
place, it already conflicts with the criteria prescribed by the law in creating a territorial subdivision.
Further, citing Galarosa
v. Valencia,[26]
the Office of the Solicitor General contends that the IRRs issued by the
Oversight Committee composed of members of the legislative and executive
branches of the government are entitled to great weight and respect, as they
are in the nature of executive construction.
The case is not in
point. In Galarosa, the issue was whether
or not Galarosa could continue to serve as a member of the Sangguniang Bayan
beyond
Sec. 494 of the Local
Government Code of 1991[27]
states that the duly elected presidents
of the liga [ng mga barangay] at the municipal, city and
provincial levels, including the component cities and municipalities of
Metropolitan Manila, shall serve as ex officio members of the sangguniang
bayan, sangguniang panglungsod, and sangguniang panlalawigan, respectively.
They shall serve as such only during their term of office as presidents of the liga
chapters which, in no case, shall be beyond the term of office of the sanggunian
concerned. The section, however, does
not fix the specific duration of their term as liga president. The Court
held that this was left to the by-laws of the liga pursuant to Art.
211(g) of the Rules and Regulations Implementing the Local Government Code of
1991. Moreover, there was no indication
that Secs. 491[28] and
494 should be given retroactive effect to adversely affect the presidents of
the ABC; hence, the said provisions were to be applied prospectively.
The Court stated that there
is no law that prohibits ABC presidents from holding over as members of the Sangguniang
Bayan. On the contrary, the IRR, prepared and issued by the Oversight Committee
upon specific mandate of Sec. 533 of the Local Government Code, expressly
recognizes and grants the hold-over authority to the ABC presidents under Art.
210, Rule XXIX.[29] The Court upheld the application of the
hold-over doctrine in the provisions of the IRR and the issuances of the DILG,
whose purpose was to prevent a hiatus in the government pending the time when
the successor may be chosen and inducted into office.
The Court held that
Sec. 494 of the Local Government Code could not have been intended to allow a
gap in the representation of the barangays, through the presidents of the
ABC, in the sanggunian. Since the term of office of the punong
barangays elected in the March 28, 1989 election and the term of office of
the presidents of the ABC had not yet
expired, and taking into account the special role conferred upon, and the broader
powers and functions vested in the barangays by the Code, it was inferred that the Code never intended to
deprive the barangays of their representation in the sangguniang
bayan during the interregnum when the liga had yet to be formally
organized with the election of its officers.
Under the circumstances
prevailing in Galarosa, the Court
considered the relevant provisions in the IRR formulated by the
Oversight Committee and the pertinent issuances of the DILG in the nature of
executive construction, which were entitled to great weight and respect.
Courts determine the intent of the law from the literal
language of the law within the law’s four corners.[30]
If the language of the law is plain,
clear and unambiguous, courts simply apply the law according to its express
terms.[31] If a literal application of the law results
in absurdity, impossibility or injustice, then courts may resort to extrinsic
aids of statutory construction like the legislative history of the law,[32] or may consider the implementing rules and
regulations and pertinent executive issuances in the nature of executive
construction.
In this case, the requirements for the creation of a
province contained in Sec. 461 of the Local Government Code are clear, plain
and unambiguous, and its literal application does not result in absurdity or
injustice. Hence, the provision in Art. 9(2) of the IRR exempting a proposed
province composed of one or more islands from the land-area requirement cannot
be considered an executive construction of the criteria prescribed by the Local
Government Code. It is an extraneous provision
not intended by the Local Government Code and, therefore, is null and void.
Whether R.A. No. 9355 complied with the requirements
of Section 461 of the Local Government Code in creating the Province of Dinagat
Islands
It is undisputed that R.A.
No. 9355 complied with the income requirement specified by the Local Government
Code. What is disputed is its compliance
with the land area or population requirement.
R.A. No. 9355 expressly states
that the Province of Dinagat Islands “contains an approximate land area of
eighty thousand two hundred twelve hectares (80,212 has.) or 802.12 sq. km., more or less,
including Hibuson Island and approximately forty-seven (47) islets x x x.”[33] R.A.
No. 9355, therefore, failed to comply with the land area requirement of 2,000
square kilometers.
The Province of Dinagat
Islands also failed to comply with the population requirement of not less than
250,000 inhabitants as certified by the NSO.
Based on the 2000 Census of Population conducted by the NSO, the
population of the Province of
Although the Provincial
Government of Surigao del Norte conducted a special census of population in Dinagat
Islands in 2003, which yielded a population count of 371,000, the result was
not certified by the NSO as required by the Local Government Code.[34] Moreover, respondents failed to prove that with the
population count of 371,000, the population of the original unit (mother Province
of Surigao del Norte) would not be reduced to less than the minimum requirement
prescribed by law at the time of the creation of the new province.[35]
Respondents contended that
the lack of certification by the NSO was cured by the presence of the officials
of the NSO during the deliberations on the house bill creating the Province of
Dinagat Islands, since they did not object to the result of the special census conducted
by the Provincial Government of Surigao del Norte.
The contention of
respondents does not persuade.
Although the NSO representative to the
Committee on Local Government deliberations
dated November 24, 2005 did
not object to the
result of the provincial government’s special census,
which was conducted with the assistance of an NSO district census coordinator, it
was agreed by the participants that the said result was not certified by the NSO,
which is the requirement of the Local Government Code. Moreover, the NSO representative,
Statistician II Ma. Solita C. Vergara, stated that based on their computation,
the population requirement of 250,000 inhabitants would be attained by the
Province of Dinagat Islands by the year 2065.
The computation was based on the growth rate of the population,
excluding migration.
The pertinent portion of the
deliberation on House Bill No. 884 creating the Province of Dinagat reads:
THE CHAIRMAN (Hon. Alfredo S. Lim): . . . There is no problem with the
land area requirement and to the income requirement. The problem is with the population
requirement.
x x x x
Now because of this question, we would like to make it of record the
stand and reply of National Statistics Office.
Can we hear now from Ms. Solita Vergara?
MS. VERGARA. We only certify
population based on the counts proclaimed by the President. And in this case, we only certify the
population based on the results of the 2000 census of population and housing.
THE CHAIRMAN. Is that…
MS. VERGARA. Sir, as per
Batas Pambansa, BP 72, we only follow kung ano po ‘yong mandated by the
law. So, as mandated by the law, we only
certify those counts proclaimed official by the President.
THE CHAIRMAN. But the government
of Surigao del Norte is headed by Governor Robert Lyndon Ace Barbers and they
conducted this census in year 2003 and yours was conducted in year 2000. So, within that time frame, three years,
there could be an increase in population or transfer of residents, is that
possible?
MS. VERGARA. Yes, sir, but
then we only conduct census of population every 10 years and we conduct
special census every five years. So, in this case, maybe by next year, we will
be conducting the 2006.
THE CHAIRMAN. But next year will
be quite a long time, the matter is now being discussed on the table. So, is that the only thing you could say that
it’s not authorized by National Statistics Office?
MS. VERGARA. Yes, sir. We have passed a resolution—orders to the
provincial offices—to our provincial offices stating that we can provide
assistance in the conduct, but then we cannot certify the result of the conduct
as official.
THE CHAIRMAN. May we hear from the Honorable Governor Robert Lyndon Ace
Barbers, your reply on the statement of the representative from National
Statistics Office.
MR. BARBERS. Thank you, Mr.
Chairman, good morning.
Yes, your Honor, we have conducted a special census in the year
2003. We were accompanied by one of the
employees from the Provincial National Statistics Office. However,
we also admit the fact that our special census or the special census we
conducted in 2003 was not validated or certified by the National Statistics
Office, as provided by law.
So, we admit on our part that the certification that I have issued based
on the submission of records of each locality or each municipality from
But with that particular objection of Executive Director Ericta on what
we have conducted, I believe, your Honor, it will be, however, moot and
academic in terms of the provision under the Local Government Code on the
requirements in making one area a province because what we need is a minimum of
20 million, as stated by the Honorable Chairman and, of course, the land area. Now, in terms of the land area,
THE CHAIRMAN. Thank you, Governor. xxxx
x x x x
THE CHAIRMAN.
Although the claim of the governor is, even if we hold in abeyance this
questioned requirement, the other two requirements, as mandated by law, is
already achieved – the income and the land area.
MS. VERGARA. We do not question po the results of any
locally conducted census, kasi po talagang we provide assistance while they’re
conducting their own census. But then,
ang requirement po kasi is, basta we will not certify—we will not certify any
population count as a result noong kanilang locally conducted census. Eh, sa Local Government Code po, we all know
na ang xxx nire-require nila is a certification provided by National Statistics
Office. ‘Yon po ‘yong requirement, di ba
po?
THE CHAIRMAN. Oo. But a
certification, even though not issued, cannot go against actual reality because that’s just
a bureaucratic requirement. Ang ibig
kong sabihin, ipagpalagay, a couple – isang lalaki, isang babae –nagmamahalan
sila. As an offshoot of this undying
love, nagkaroon ng mga anak, hindi ba, pero hindi kasal, it’s a live-in
situation. Ang tanong ko lang, whether
eventually, they got married or not, that love remains. And we cannot deny also the existence of the
offspring out of that love, di ba?
Kaya…’yon lang. Okay. So, we just skip on this….
MS. VERGARA.
Your Honor.
REP. ECLEO (GLENDA).
Mr. Chairman.
THE CHAIRMAN.
Please, Ms. Vergara.
MS. VERGARA. ‘Yong
sinasabi n’yo po, sir, bale we computed
the estimated population po ng
THE CHAIRMAN. 2065?
MS. VERGARA. 2065
po.
xxxx
THE CHAIRMAN. .
. . [T]his is not the center of our argument since, as stated by the governor,
kahit ha huwag na munang i-consider itong population requirement, eh,
nakalagpas naman sila doon sa income and land area, hindi ba?
Okay. Let’s give
the floor to Congresswoman Ecleo.
REP. ECLEO (GLENDA).
Thank you, Mr. Chairman.
This is in
connection with the special census.
Before this was done, I went to the NSO. I talked to Administrator Ericta on the population. Then, I was told that the population,
official population of Dinagat is 106,000.
So, I told them that I want a special census to be conducted because
there are so many houses that were not reached by the government enumerators,
and I want to have my own or our own special census with the help of the
provincial government. So, that is how
it was conducted. Then, they told me
that the official population of the proposed province will be on 2010. But at
this moment, that is the official population of 106,000, even if our special
census, we came up with 371,000 plus.
So, that is it.
THE CHAIRMAN.
Thank you, Congresswoman.
Your insights will be reflected in my reply to Senate
President Drilon, so that he can also answer the letter of Bishop Cabahug.
MS. VERGARA.
Mr. Chairman, may clarifications lang din po ako.
THE CHAIRMAN. Please.
MS. VERGARA.
‘Yon po sa sinasabi naming estimated population, we only based the
computation doon sa growth rate lang po talaga, excluding the migration. xxxx
MR. CHAIRMAN. No’ng
mga residents.
MS. VERGARA. Yes,
sir, natural growth lang po talaga siya.[36]
To reiterate, when
the Dinagat Islands was proclaimed a new province on December 3, 2006, it had an official population of only 106,951
based on the NSO 2000 Census of Population. Less than a year after the proclamation of the
new province, the NSO conducted the 2007
Census of Population. The NSO certified that as of
In fine, R.A.
No. 9355 failed to comply with either the territorial or the population requirement
for the creation of the Province of Dinagat Islands.
The Constitution clearly
mandates that the creation of local government units must follow the criteria
established in the Local Government Code.[39]
Any derogation of or deviation from the criteria prescribed in the Local
Government Code violates Sec. 10, Art. X of the Constitution.[40]
Hence, R.A.
No. 9355 is unconstitutional for its failure to comply with the criteria for
the creation of a province prescribed in Sec. 461 of the Local Government Code.
Whether the
creation of the Province of Dinagat Islands
is an act of
gerrymandering
Petitioners
contend that the creation of the Province of Dinagat Islands is an act of
gerrymandering on the ground that House Bill No. 884 excluded Siargao Island,
with a population of 118,534 inhabitants, from the new province for complete
political dominance by Congresswoman Glenda Ecleo-Villaroman. According to petitioners, if Siargao were
included in the creation of the new province, the territorial requirement of
2,000 square kilometers would have been easily satisfied and the enlarged area
would have a bigger population of 200,305 inhabitants based on the 2000 Census
of Population by the NSO. But House Bill
No. 884 excluded Siargao Island, because its inclusion would result in
uncertain political control. Petitioners
aver that, in the past, Congresswoman Glenda Ecleo-Villaroman lost her
congressional seat twice to a member of an influential family based in
Siargao. Therefore, the only way to
complete political dominance is by gerrymandering, to carve a new province in
Dinagat Islands where the Philippine Benevolent Members Association (PMBA),
represented by the Ecleos, has the numbers.
The argument of
petitioners is unsubstantiated.
“Gerrymandering”
is a term employed to describe an apportionment of representative districts so
contrived as to give an unfair advantage to the party in power.[41] Fr. Joaquin G. Bernas, a
member of the 1986 Constitutional Commission, defined “gerrymandering” as the formation of one legislative district
out of separate territories for the purpose of favoring a candidate or a party.[42] The Constitution
proscribes gerrymandering, as it mandates each legislative district to
comprise, as far as practicable, a contiguous, compact and adjacent territory.[43]
As stated by the
Office of the Solicitor General, the Province of Dinagat Islands consists of
one island and about 47 islets closely situated together, without the inclusion
of separate territories. It is an
unsubstantiated allegation that the province was created to favor Congresswoman
Glenda Ecleo-Villaroman.
Allegations of
fraud and irregularities during the plebiscite cannot be resolved in a special
civil action for certiorari
Lastly,
petitioners alleged that R.A. No. 9355 was ratified by a doubtful mandate in a
plebiscite held on December 2, 2005, where the “yes votes” were 69,9343, while the “no votes” were 63,502. They contend that the 100% turnout of voters
in the precincts of
Allegations of fraud and
irregularities in the conduct of a plebiscite are
factual in nature; hence, they cannot be the subject of this special civil
action for certiorari under Rule 65
of the Rules of Court, which is a remedy designed only for the
correction of errors of jurisdiction, including grave abuse of discretion
amounting to lack or excess of jurisdiction.[44] Petitioners should have filed the proper
action with the Commission on Elections.
However, petitioners admittedly chose not to avail themselves of the
correct remedy.
WHEREFORE, the petition is GRANTED. Republic Act No.
9355, otherwise known as [An Act Creating
the Province of Dinagat Islands], is hereby declared unconstitutional. The proclamation of the Province of Dinagat
Islands and the election of the officials thereof are declared NULL and VOID. The provision in Article 9 (2) of the Rules and Regulations
Implementing the Local Government Code of 1991 stating, “The land area
requirement shall not apply where the proposed province is composed of one (1)
or more islands,” is declared NULL and
VOID.
No costs.
SO ORDERED.
DIOSDADO M. PERALTA
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Chief
Justice
ANTONIO T. CARPIO
Associate
Justice |
RENATO C. CORONA
Associate
Justice |
CONCHITA CARPIO MORALES
Associate Justice |
PRESBITERO J.
VELASCO, JR. Associate
Justice |
|
ANTONIO EDUARDO B. NACHURA Associate
Justice |
TERESITA
J. LEONARDO-DE CASTRO Associate
Justice |
|
ARTURO D.
BRION Associate
Justice |
LUCAS P. BERSAMIN Associate
Justice |
|
MARIANO C. DEL CASTILLO Associate Justice |
ROBERTO A. ABAD Associate Justice |
|
MARTIN S. VILLARAMA, JR. JOSE
P. PEREZ Associate Justice Associate Justice JOSE C. MENDOZA Associate
Justice |
|
|
|
|
|
CERTIFICATION Pursuant to
Section 13, Article VIII of the Constitution, I certify that the conclusions
in the above Decision had been reached in consultation before the case was
assigned to the writer of the opinion of the Court. REYNATO S. PUNO
Chief Justice |
|
|
|
|
[1] On November 14, 2006, petitioners
Rodolfo Navarro, Victor F. Bernal, Rohito C. Madelo, Clemente G. Sandigan, Jr.,
Jerry R. Centro, Jose V. Begil, Jr., Rene O. Medina and Jamar D. Gavino filed
before this Court a Petition for Certiorari
and Prohibition with Prayer for Temporary Restraining Order against
Secretary Eduardo Ermita, the Senate of the Philippines, the House of
Representatives, the COMELEC and the Provincial Government and Provincial
Treasurer of Surigao del Norte. Petitioners sought for the declaration of R.A.
No. 9355 as unconstitutional and invalid, and prayed that the COMELEC be
enjoined from conducting a plebiscite pending resolution on the
constitutionality of R.A. No. 9355. The
petition, docketed as G.R. No. 175158, was dismissed on technical grounds.
[2] Annex “B-1,” rollo, p. 89.
[3] Annexes
“B,” “B-1” to “B-2,” id. at 88-90.
[4] Annex
“C,” id. at 91.
[5] Annex “E,” id. at 124.
[6]
[7] Memorandum
of respondent Governor Robert Ace S. Barbers, rollo, p. 676.
[8] Memorandum of Petitioners, id. at 462-463.
[9] G.R. No. 132527, July 29, 2005,
465 SCRA 47.
[10]
[11]
[12]
[13] Italics
supplied.
[14] Emphasis
supplied.
[15] Emphasis supplied.
[16] No.
L-73155, July 11. 1986, 142 SCRA 727.
[17] Emphasis supplied.
[18] Tan v. Commission on Elections, supra
note 16 at 749.
[19] Id.
at 749-750. (Emphasis supplied.)
[20] The
IRR was formulated by the Oversight Committee pursuant to Sec. 533 of the Local
Government Code:
SEC. 533. Formulation of Implementing Rules and
Regulations. - (a) Within one (1) month after the approval of this Code,
the President shall convene the Oversight Committee as herein provided for. The
said Committee shall formulate and issue the appropriate rules and regulations
necessary for the efficient and effective implementation of any and all
provisions of this Code, thereby ensuring compliance with the principles of
local autonomy as defined under the Constitution.
(b) The Committee shall be
composed of the following:
(1) The Executive Secretary, who
shall be the Chairman;
(2) Three (3) members of the Senate to be appointed by the President
of the Senate, to include the Chairman of the Committee on Local Government;
(3) Three (3) members of the
House of Representatives to be appointed by the Speaker, to include the Chairman
of the Committee on Local Government;
(4) The Cabinet, represented by
the following:
(i) Secretary of the Interior and Local
Government;
(ii) Secretary of Finance;
(iii) Secretary of Budget and
Management; and
(5) One (1) representative from each
of the following:
(i) The
League of Provinces;
(ii) The League of Cities;
(iii) The League of
Municipalities; and
(iv) The Liga ng mga Barangay.
[21] League
of Cities of the Philippines v. Commission on Elections, G.R. Nos. 176951,
177499, 178056, November 18, 2008, 571 SCRA 263.
[22] Hijo Plantation, Inc. v. Central Bank,
G.R. No. L-34526,
[23] Local Government Code, Sec. 2. Declaration
of Policy. - (a) It is hereby
declared the policy of the State that the territorial and political
subdivisions of the State shall enjoy genuine and meaningful local autonomy to
enable them to attain their fullest development as self-reliant communities and
make them more effective partners in the attainment of national goals. Toward
this end, the State shall provide for a more responsive and accountable local
government structure instituted through a system of decentralization whereby
local government units shall be given more powers, authority, responsibilities,
and resources. The process of
decentralization shall proceed from the National Government to the local
government units.
(b) It is also
the policy of the State to ensure the accountability of local government units
through the institution of effective mechanisms of recall, initiative and
referendum.
(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,
nongovernmental and people’s organizations, and other concerned sectors of the
community before any project or program is implemented in their respective
jurisdictions.
[24] G.R. No. 163980,
[25]
[26] G.R. No. 109455, November 11, 1993, 227 SCRA 728.
[27]
SEC. 494. Ex Officio Membership in Sanggunians. — The duly-elected presidents
of the liga [ng mga barangay] at the
municipal, city and provincial levels, including the component cities and
municipalities of Metropolitan Manila, shall serve as ex-officio members of the sangguniang bayan, sangguniang
panglungsod, and sangguniang panlalawigan, respectively. They shall serve
as such only during their term of office as presidents of the liga chapters,
which in no case shall be beyond the term of office of the sanggunian concerned.
[28] SEC.
491. Purpose
of Organization. —There shall be an organization of all barangays,
to be known as the Liga ng mga Barangay, for the primary purpose of
determining the representation of the liga in the sanggunians and for
ventilating, articulating and crystallizing issues affecting barangay
governmental administration and securing, through proper and legal means,
solutions thereto.
[29] ART.
210. Liga
ng mga barangay. –
x x x x
(d) Ex
Officio Membership in the Sanggunian -
(3)The
incumbent presidents of the municipal, city, and provincial chapters of the
liga shall continue to serve as ex
officio members of the sanggunian concerned until the expiration of their
term of office, unless sooner revoked for cause.
x x x x
(f) Organizational Structure –
(1) x x x
Pending election of the presidents of the municipal, city, provincial,
and metropolitan chapters of the liga, the incumbent presidents of the
association of barangay councils in the municipality, city, province, and
Metropolitan Manila shall continue to act as presidents of the corresponding
liga chapters under this Rule.
[30] League
of Cities of the Philippines v. Commission on Elections, supra note 17.
[31]
[32]
[33] Rollo, p. 93. (Emphasis supplied.)
[34] SEC.
7. Creation
and conversion.
– As 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:
(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).
SEC. 461. Requisites for Creation. - (a) A province
may be created if it has an average annual income, as certified by the
Department of Finance, of not less than Twenty million pesos (P20,000,000.00)
based on 1991 constant prices and either of the following requisites:
(i) a contiguous territory of at least
two thousand (2,000) square kilometers, as certified by the Lands Management Bureau; or
(ii) a population
of not less than two hundred
fifty thousand (250,000) inhabitants as certified by the National Statistics Office:
Provided, That, the creation thereof shall not
reduce the land area, population, and income of the original unit or units at
the time of said creation to less than the minimum requirements prescribed herein.
(Emphasis supplied.)
[35] Sec. 461, supra.
[36] Annex “A,” rollo, pp. 51-61.
[37] Annex “AA,” id. at 498. (Emphasis
supplied.)
[38] Emphasis
supplied.
[39] See League of Cities of the Philippines v.
Commission on Elections, supra
note 17.
[40]
[41] Ceniza
v. Commission on Elections, L-52304,
[42] Bernas,
The 1987 Constitution of the Philippines:
A Commentary, 625 (2006).
[43]
[44] Cayetano,
v. Commission on Elections, G.R. No. 166388,