G.R. No. 180050

G.R. No. 180050 – RODOLFO G. NAVARRO, VICTOR F. BERNAL and RENE O. MEDINA, Petitioners, versus EXECUTIVE SECRETARY EDUARDO ERMITA, representing the President of the Republic of the Philippines; SENATE OF THE PHILIPPINES, represented by the SENATE PRESIDENT; HOUSE OF REPRESENTATIVES, represented by the HOUSE SPEAKER; GOV. ROBERT ACE S. BARBERS, representing the mother province of Surigao del Norte; GOV. GERALDINE ECLEO VILLAROMAN, representing the new Province of Dinagat Islands, Respondents.

Promulgated:

February 10, 2010

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DISSENTING OPINION

NACHURA, J.:

The ponencia of Justice Peralta seeks to strike down an act of both the legislative and the executive branches—the law creating the province of Dinagat Islands. I register my dissent to the ponencia for I find this judicial interference unnecessary and, in fact, unwarranted in law. Petitioners have not presented a genuine constitutional issue requiring this Court’s intervention. In petitioners’ earlier and similarly-worded petition—G. R. No. 175158¾the Court found no compelling reason to brush aside technicalities of procedure and resolve the merits of the case. Just like G.R. No. 175158, the present petition deserves the same dismissive treatment from the Court.

I begin with a brief restatement of the pertinent antecedent events.

On October 2, 2006, the President of the Republic approved Republic Act (R.A.) No. 9355,[1] the law creating the province of Dinagat Islands. On December 3 of the same year, the Commission on Elections conducted the plebiscite for the ratification of the said creation. This yielded 69,943 affirmative votes and 63,502 negative votes.[2] Having gotten the nod of the people, the President appointed the interim set of provincial officials who consequently took their oath of office on January 26, 2007. Thereafter, in the May 14, 2007 National and Local Elections, the Dinagatnons elected their new set of provincial officials who assumed office on July 1, 2007.[3]

Not amenable to the advancement of their locality, petitioners, former politicians in the mother province of Surigao del Norte, filed before this Court, on November 10, 2006, G.R. No. 175158, a petition for certiorari and prohibition assailing the constitutionality of the creation of the province.[4] As aforementioned, the Court dismissed the petition on technical grounds—defect in the verification and certification of non-forum shopping and failure by the petitioners’ counsel to indicate an updated Integrated Bar of the Philippines official receipt. On motion for reconsideration, the Court rejected petitioners’ entreaty for liberality in the application of procedural rules.[5]

Unperturbed, petitioners filed their new petition, the instant case, contending in the main that R.A. No. 9355 is unconstitutional. They posit that the creation of Dinagat Islands did not meet either the land area or the population requirement for the creation of a province. At the time of the passage of the law, the land area of the locality was only 802.12 square kilometers, and its population, only 106,951.[6] It is petitioners’ submission that the enactment of R.A. No. 9355 violates Section 461 of R.A. No. 7160 or the Local Government Code (LGC) of 1991,[7] and Section 10, Article X of the Constitution.

I find no merit in petitioners’ contention.

Article X, Section 10 of the Constitution provides that—

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.

For the creation of a province, the LGC provides:

Section 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.

Here, the Department of Finance certified that the province of Dinagat Islands has an average annual income of P82,696,433.22 based on 1991 constant prices.[8] As it already meets the primordial income criterion for a province, Dinagat Islands needed only to comply with either the land area or the population criterion.

At this point, I concur with the ponencia that Dinagat Islands does not satisfy the 250,000 population requirement. When the law for its creation was passed in 2006, the province only had a population of 106,951 inhabitants (based on the 2000 Census of Population and Housing) as certified by the National Statistics Office.[9] Further, the 2007 Census of Population reveals that it has only 120,813 inhabitants as of August 1, 2007.[10]

I cannot, however, subscribe to the ponencia’s holding that Dinagat Islands fails to comply with the territorial requirement because it only has an aggregate land area of 802.12 sq km. Let it be emphasized that the province is comprised of the municipalities of Basilisa, Cagdianao, Dinagat, Libjo (Albor), Loreto, San Jose and Tubajon, and includes Hibuson Island and approximately 47 islets under the jurisdiction of the said municipalities. This fact relieves it from complying with the criterion that its territory must be contiguous and at least 2,000 sq km in area. Article 9(a)(2) of the Rules and Regulations Implementing (IRR) the LGC of 1991 pertinently provides that the territory need not be contiguous and the land area requirement shall not apply where the proposed province is composed of islands, 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:

x x x x

(2) Population or land area—Population which shall not be less than two hundred fifty thousand (250,000) inhabitants, as certified by NSO; 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.

The creation of a new province shall not reduce the land area, population, and income of the original LGU or LGUs at the time of said creation to less than the prescribed minimum requirements. All expenses incidental to the creation shall be borne by the petitioners.[11]

The ponencia, however, declares that the portion in the IRR, which reads, “[t]he land area requirement shall not apply where the proposed province is composed of one (1) or more islands,” is null and void for going beyond the standard or criterion prescribed by Section 461 of the LGC, and, thus, cannot be used as basis for Dinagat Islands’ compliance with the territorial requirement. The ponencia suggests that for the creation of a province, even one composed of islands like the one in this petition, the 2,000-sq km territorial area requirement should still be met despite the reality that its territory is not contiguous, precisely because portions of its territory are separated by bodies of water.

I do not agree with the ponencia’s proposition. The province of Dinagat Islands, composed as it is of a group of islands, is exempt from compliance not only with the territorial contiguity requirement but also with the 2,000-sq km land area criterion. This proceeds from no less than Section 461 of the LGC, which, for ready reference, I again quote—

(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:

(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.[12]

Significant in the provision is paragraph (b), underscored above, as it provides for an exemption from the territorial criterion mentioned in paragraph (a).

The stipulation in paragraph (b), however, qualifies not merely the word “contiguous” in paragraph (a)(i) in the same provision, but rather the entirety of the latter paragraph. Paragraph (a)(i) of the provision, for ready reference, reads:

(i) a contiguous territory of at least two thousand (2,000) square kilometers, as certified by the Lands Management Bureau[.][13]

This whole paragraph on contiguity and land area, I repeat for emphasis, is the one being referred to in the exemption from the territorial requirement in paragraph (b). Thus, if the province to be created is composed of islands, like the one in this case, then, its territory need not be contiguous and need not have an area of at least 2,000 sq km. This is because, as the law is worded, contiguity and land area are not two distinct and separate requirements. They qualify each other. For instance, a territory which is contiguous but which is less than 2,000 sq km in land area will not qualify for provincehood and, conversely, a territory which is 2,000 sq km in area but which is not contiguous cannot become a province, following the general rule in paragraph (a)(1). In other words, contiguity and land area are two components of a single requirement—one cannot exist and serve no purpose without the other, so much so that a release from compliance with one component results, naturally and logically, in the corresponding exemption from the other.

Indeed, an exemption from one of the two component requirements in paragraph (a)(i) necessitates an exemption from the other component requirement because the nonattendance of one results in the absence of a reason for the other component requirement to effect a qualification. In other words, a component requirement cannot apply without the other because they qualify each other—one cannot be dissociated from the other.

By rough analogy, the two components are like dicephalic conjoined twins—two heads are attached to a single body. If one head is separated from the other, then the twins die. In the same manner, the law, by providing in paragraph (b) of Section 461 that the territory need not be contiguous if the same is comprised of islands, must be interpreted as intended to exempt such territory from the land area component requirement of 2,000 sq km. Because the two component requirements are inseparable, the elimination of contiguity from the territorial criterion has the effect of a coexistent eradication of the land area component. The territory of the province of Dinagat Islands, therefore, comprising the major islands of Dinagat and Hibuson, and approximately 47 islets, need not be contiguous and need not have an area of at least 2,000 sq km following Section 461 of the LGC.

It will result in superfluity, if not absurdity, if paragraph (b) of the provision is interpreted as referring only to the component requirement of contiguity and not to both component requirements of contiguity and land area. This is because contiguity does not always mean in contact by land. Thus, in so far as islands are concerned, they are deemed contiguous although separated by wide spans of navigable deep waters,[14] with the exception of the high seas, because all lands separated by water touch one another, in a sense, beneath the water.[15] The provision, then, as worded, only means that the exemption in paragraph (b) refers to both the component requirements on territory, that is, contiguity and land area, and not merely to the first, standing alone. For, indeed, why will the law still exempt the islands from the requirement of contiguity when they are already legally contiguous?

By inference, Section 461, in effect, signifies that, if the proposed province is composed of islands, its territory includes not only the land mass above the water but that which is beneath it. Indeed, theoretically, if this entire territory is measured—the one above and beneath the water, then the 2,000 sq km land area would be met with facility. Separate units of measure are, however, used to calculate dry land and that which is covered by water. For expediency, the law, in providing for the criteria for the creation of a province, has exempted groups of islands from the territorial requirement, and this exemption includes the two component requirements of contiguity and land area.

Parenthetically, the Court, more than two decades ago, in Tan v. Commission on Elections,[16] declared in passing that territory means only the mass of land area and excludes the waters over which a political unit exercises control. This pronouncement in Tan is an obiter dictum, the main issue in the petition for prohibition being the propriety of excluding from the plebiscite for the ratification of the creation of Negros del Norte the inhabitants of the mother province of Negros Occidental. Therefore, Tan does not preclude the proper interpretation of Section 461 of the LGC as exempting groups of islands from the territorial requirement for the creation of provinces.

This interpretation of Section 461 is further in line with the law’s thrust of enabling the territorial and political subdivisions of the state to attain their fullest development in order to make them more effective partners in the attainment of national goals.[17] The Philippines is composed of 7,107 islands, most of them are small and surrounded by vast bodies of water. The constitution of provinces is aimed at administrative efficiency, effective governance, more equitable delivery of basic services, and economic development. If this Court is to prevent a group of islands, with skyrocketing revenues, from organizing themselves into a province on account alone of their small aggregate land mass, then it would be impeding their advancement as self-reliant communities and, in the process, would hamper the growth of the national economy—an eventuality obviously not envisioned by both the Constitution and the LGC.

Congress, in fact, during its deliberations on what would later on be enacted as the LGC, had paid, if at all it did, little attention to the territorial requirement for the creation of provinces. Instead, it focused on the income requirement and acknowledged the same to be the primordial criterion of viability, thus—

HON. ALFELOR: Income is mandatory. We can even have this doubled because we thought…

CHAIRMAN CUENCO: In other words, the primordial consideration here is the economic viability of the new local government unit, the new province?

x x x x

HON. LAGUADA: The reason why we are willing to increase the income, double than the House version, because we also believe that economic viability is really a minimum. Land area and population are functions really of the viability of the area, because where you have an income level which would be the trigger point for economic development, population will naturally increase because there will be an immigration. However, if you disallow the particular area from being converted into a province because of population problems in the beginning, it will never be able to reach the point where it could become a province simply because it will never have the economic take off for it to trigger off that economic development.

Now, we’re saying that maybe Fourteen Million Pesos is a floor area where it could pay for overhead and provide a minimum of basic services to the population. Over and above that, the provincial officials should be able to trigger off economic development which will attract immigration, which will attract new investments from the private sector. This is now the concern of the local officials. But if we are going to tie the hands of the proponents, simply by telling them, “Sorry, you are now at 150 thousand or 200 thousand,” you will never be able to become a province because nobody wants to go to your place. Why? Because you never have any reason for economic viability.

x x x x

CHAIRMAN PIMENTEL: Okay, what about land area?

HON. LUMAUIG: 1,500 square kilometers

HON. ANGARA: Walang problema ‘yon, in fact that’s not very critical, ‘yong land area because…

CHAIRMAN PIMENTEL: Okay, ya, our, the Senate version is 3.5, 3,500 square meters, ah, square kilometers.

HON. LAGUADA: Ne, Ne. A province is constituted for the purpose of administrative efficiency and delivery of basic services.

CHAIRMAN PIMENTEL: Right.

HON. LAGUADA: Actually, when you come down to it, when government was instituted, there is only one central government and then everybody falls under that. But it was later on subdivided into provinces for purposes of administrative efficiency.

CHAIRMAN PIMENTEL: Okay.

HON. LAGUADA: Now, what we’re seeing now is that the administrative efficiency is no longer there precisely because the land areas that we are giving to our governors is so wide that no one man can possibly administer all of the complex machineries that are needed.

Secondly, when you say “delivery of basic services,” as pointed out by Cong. Alfelor, there are sections of the province which have never been visited by public officials, precisely because they don’t have the time nor the energy anymore to do that because it’s so wide. Now, by compressing the land area and by reducing the population requirement, we are, in effect, trying to follow the basic policy of why we are creating provinces, which is to deliver basic services and to make it more efficient in administration.

CHAIRMAN PIMENTEL: Yeah, that’s correct, but on the assumption that the province is able to do it without being a burden to the national government. That’s the assumption.

HON. LAGUADA: That’s why we’re going into the minimum income level. As we said, if we go on a minimum income level, then we say, “this is the trigger point at which this administration can take place.”[18]

Verily, economic viability is the primordial consideration in the constitution of provinces, not population or territory. As to a province composed of a group of islands separated by stretches of water, like the one in this case, the proposition must apply with greater force. A contrary position would prove to be growth-retardant to an economically viable group of islands which have not yet politically separated from the larger mass of land where the provincial capital sits. In a practical sense, it would also be too cumbersome for the inhabitants to travel great lengths and over unpredictable waters just to reach the capital, do their business and avail of basic government services and facilities that ordinarily do not reach beyond the immediate outskirts of the capital. Thus, Section 461, as discussed above, exempts a proposed province composed of several islands from complying with both the contiguity and land area components of the territorial requirement for its creation. It is this interpretation that, logically, impelled both the executive and legislative departments to enact R.A. No. 9355, the law creating the province of Dinagat Islands. We must accord persuasive effect to this contemporaneous interpretation by the two equal branches of government, and abide by the clear intent of the framers of the law.

Cawaling, Jr. v. Commission on Elections[19] fittingly instructs that every statute enjoys the presumption of constitutionality, owing to the doctrine of separation of powers which imposes upon the three coordinate departments of the Government a becoming courtesy for each other’s acts. Every law, being the joint act of the Legislature and the Executive, has passed careful scrutiny to ensure that it is in accord with the fundamental law. Of course, the Court may, nevertheless, declare a law, or portions thereof, unconstitutional, where a petitioner has shown that there is a clear and unequivocal breach of the Constitution, not merely a doubtful or argumentative one. Here, as revealed in the above discussion, petitioners have not shown that Dinagat Islands does not meet the criteria laid down in Section 461 of the LGC for the creation of a province; thus, they cannot assert that R.A. No. 9355 clearly and unequivocally breaches Article X, Section 10 of the Constitution. Absent a genuine constitutional issue, the petition fails in substance. The petition also breaches procedural standards because when the inquiry is focused on the legal existence of a body politic, the action is reserved to the State in a proceeding for quo warranto,[20] not through a petition for certiorari.

In light of the above disquisition, I vote for the dismissal of the petition.

ANTONIO EDUARDO B. NACHURA

Associate Justice

[1] Passed by the House of Representatives and the Senate on August 28, 2006 and August 14, 2006, respectively.

[2] Rollo, pp. 124-127.

[4] Rollo (G.R. No. 175158), pp. 3-20.

[5] In its November 28, 2006 Resolution in G.R. No. 175158, the Court dismissed the petition for certiorari as the verification and certification of non-forum shopping were defective or insufficient and the IBP Official Receipt of the counsel for petitioners was dated December 19, 2005. The Court later dismissed the petition with finality in its February 13, 2007 Resolution. The Court further issued the Entry of Judgment on April 11, 2007. (Id. at 77A and 112.)

[7] Became effective on January 1, 1992.

[11] Emphasis and underscoring supplied.

[12] Underscoring supplied.

[13] Emphasis supplied.

[14] Board of Supervisors of Houghton County v. Blacker, 92 Mich. 638, 646; 52 N.W. 951, 953 (1892); Vestal v. City of Little Rock, 15 S.W. 891, 892 (1891).

[15] United States v. Hunter, 80 F.2d 968, 970 (1936). This case clarifies that when the intervening water is the high seas over which neither of the lands has exclusive jurisdiction, they are not contiguous territories though no dry land intervenes.

[16] No. L-73155, July 11, 1986, 142 SCRA 727, 749-750.

[17] Section 2 of the LGC provides:

Section 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.

[18] Bicameral Conference Committee Meeting of the Committee on Local Government, May 22, 1991, 4^th Regular Session, pp. 57-67.

[19] 420 Phil. 524, 530-531 (2001).

[20] Herrera, Remedial Law, Vol. III (1999 ed.), pp. 295-296.