G.R. No. 180050 RODOLFO G. NAVARRO, ET AL. v. EXECUTIVE
SECRETARY EDUARDO ERMITA, ETC., ET AL.
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DISSENTING OPINION
Every statute has in its favor the presumption of constitutionality. This presumption is rooted in the doctrine of separation of powers which enjoins upon the three coordinate departments of the Government a becoming courtesy for each other's acts. The theory is that 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. This Court, however, may declare a law, or portions thereof, unconstitutional, where a petitioner has shown a clear and unequivocal breach of the Constitution, not merely a doubtful or argumentative one. In other words, the grounds for nullity must be beyond reasonable doubt, for to doubt is to sustain.
The
spirit of the foregoing pronouncements enunciated in Cawaling, Jr. v. Executive
Secretary[1] animates this dissent to
the denial of the motion for reconsideration of the February 10, 2010 En Banc Decision handed down in the case
at bench, declaring as unconstitutional Republic Act No. 9355, as well the
provision in Article 9(b) of the Rules and Regulations Implementing the Local
Government Code of 1991 which states that, “The land area requirement shall not
apply where the proposed province is composed of one (1) or more islands.”
The
factual and procedural antecedents are not in dispute.
A
group of islands composed of the municipalities of Basilisa, Cagdianao,
Dinagat, Libjo, Loreto, P82,696,433.23, the house bill for the creation of the Province of
Dinagat Islands was passed by the Senate and House of Representatives on
On
October 2, 2006, President Gloria Macapagal-Arroyo approved and enacted said
house bill into law as Republic Act No. 9355, entitled, “An Act Creating the
Province of Dinagat Islands.” The
plebiscite conducted by the Commission on Elections (COMELEC) on
Petitioners initially assailed the
constitutionality of Republic Act No. 9355 in the petition for certiorari and prohibition docketed
before the Court as G.R. No. 175158.
Undaunted by the dismissal of said petition on technical grounds and the
denial of their motion for reconsideration thereof, petitioners filed the
petition for certiorari to which the
case at bench traces its provenance.
Reiterating the arguments in their previous petition, petitioners
maintained that the law failed to comply with either the land area and
population requirements prescribed under the Local Government Code of
1991. In addition to the invalidation of
the law as unconstitutional, petitioners prayed for the nullification of the
appointment and election of the provincial officers of
On
After
a circumspect consideration of the arguments for and against the validity of
the creation of the Province of Dinagat Islands, I am convinced, with all due
respect, that a reconsideration of the decision is in order.
The
creation of local government units is governed by Section 10, Article X of the
Constitution which provides that, “(n)o 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.” Correlatively,
Section 461 of the Local Government Code prescribes the criteria for the
creation of a province in the following wise:
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.
Considered
the most important factor insofar as the creation of a new province is
concerned, the income requirement under the Local Government Code has been more
than four-fold complied with, as may be gleaned from the Bureau of Local
Government Finance Certification that, based on the 1991 constant prices, the
average annual income of the Province of Dinagat Islands is P82,696,433.23. Despite its aggregate land area of 802.12
square kilometers only, the new province has also measured up to the
territorial requirement since, being comprised of two or more islands, it is
exempted from the contiguous 2,000 square-kilometer land mass prescribed under
Section 461 (a)[i]. Although the
exemption in paragraph (b) appears to extend only to the requirement of
contiguity, I am convinced by Mr. Justice Antonio Eduardo B. Nachura’s opinion
that, from the tenor of the same provision, the contiguity and land area
requirements cannot be considered separate and distinct from each other. As eloquently stated in his dissent:
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
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 co-existent eradication of the land
area component. The territory of the
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 contact by land. Thus, insofar as islands are concerned, they are deemed contiguous although separated by wide spans of navigable deep waters, with the exception of the high seas, because all lands separated by water touch one another, in a sense, beneath the water. The provision, then, as worded, only means that the exemption in paragraph (b) refers to both the components of territory, that is, contiguity and land area, and not merely 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?
Compliance with the land area
requirement by the Province of Dinagat Islands is cast in even relief when
gauged from the clear and unambiguous language of the IRR which was formulated
in accordance with Section 533 of the Local Government Code, by the Oversight
Committee chaired by the Executive Secretary and composed of representatives
from the Senate,[3] the House of
Representatives,[4] the Cabinet[5]
and the leagues of local government units.[6] Partaking the nature of executive
construction and, for said reason, deserving of great weight and respect,[7] Article
9 of the IRR distinctly provides as follows:
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 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.
Alongside declaring Republic Act No.
9355 as unconstitutional for non-compliance with the land area requirement,
however, the ponencia also declared the underscored portion of the foregoing
IRR provision null and void for going beyond the criteria prescribed by Section
461 of the Local Government. Citing the
Court’s November 18, 2008 ruling in League
of Cities of the Philippines v. COMELEC,[8] it
held that “(t)he 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.” In case of discrepancy between the basic law and
the rules and regulations implementing the same, the ponencia went on to state that, “the basic law prevails, because
the rules and regulations cannot go beyond the terms and provisions of the
basic law.”
The League of Cities case concerned the constitutionality of sixteen
cityhood laws, each converting the municipalities covered into a city, for
non-compliance with Republic Act. No. 9009 which amended Section 450 of the
Local Government Code by increasing the income requirement from P20,000,000.00
to P100,000,000.00 for a municipality to be converted into a component
city. Initially declared
unconstitutional in the aforesaid November 18, 2008 Decision, the
constitutionality of the subject cityhood laws were eventually upheld in the
December 21, 2009 Decision subsequently rendered in the case on the ground,
among others, that the Local Government Code, despite its being the ideal
repository for the same, need not be the only vessel of all the criteria for
the creation of local government units.
Taking into consideration the circumstances under which Republic Act No.
9009 and said cityhood laws were enacted, the Court ruled as follows:
Legislative intent is part and parcel of the law, the controlling factor in interpreting a statute. In construing a statute, the proper course is to start out and follow the true intent of the Legislature and to adopt the sense that best harmonizes with the context and promotes in the fullest manner the policy and objects of the legislature. In fact, any interpretation that runs counter to the legislative intent is unacceptable and invalid. Torres v. Limjap could not have been more precise:
‘The intent of a Statute is the Law. — If a statute is valid, it is to have effect according to the purpose and intent of the lawmaker. The intent is x x x the essence of the law and the primary rule of construction is to ascertain and give effect to that intent. The intention of the legislature in enacting a law is the law itself, and must be enforced when ascertained, although it may not be consistent with the strict letter of the statute. Courts will not follow the letter of a statute when it leads away from the true intent and purpose of the legislature and to conclusions inconsistent with the general purpose of the act. Intent is the spirit which gives life to a legislative enactment. In construing statutes the proper course is to start out and follow the true intent of the legislature.’
When
viewed in the light of the legislative intent underlying Section 461 of the
Local Government Code, I respectfully submit that Article 9 of the IRR is not
in conflict with the criteria for the creation of provinces ensconced in said
provision of the basic law. Unlike
Section 197[9] of Batas Pambansa Blg. 337, its counterpart provision in the
predecessor of the present Local Government Code, Section 461 does not give
equal premium to the income, land area and population requirements for the
creation of new provinces. This is
readily evident from the fact that, after prescribing the P20,000,000.00
income requirement, Section 461 simply mandates compliance with either the
requirement of a contiguous territory of 2,000 square kilometers or
a population of not less than 250,000. Already
quoted in Justice Nachura’s dissent to the ponencia,
the following transcript of the congressional deliberations on the house bill
from which the present Local Government Code originated is particularly
enlightening regarding the legislative intent for said new requirements, viz.:
HON. ALFELOR: Income is mandatory. We can even have this doubled because we thought…
CHAIRMAN CUENCO: In other words, the primordial considerations 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 are 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 new investments from the private sector. This is now the concern of their 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 200,000 thousand,’ you will never be able to become a province because nobody wants to go to that 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, 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 because the land areas that we are giving to our governors is so wide that no one man could 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 because it is 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.”
In exempting provinces composed of
one or more islands from both the contiguity and land area requirements,
Article 9 of the IRR cannot be considered inconsistent with the criteria under
Section 461 of the Local Government Code.
Far from being absolute regarding application of the requirement of “a
contiguous territory of at least 2,000 square kilometers as certified by the
Land Management Bureau,” Section 461 allows for said exemption by providing,
under paragraph (b) thereof, that “(t)he territory need not be contiguous if
(the new province) comprises two or more islands or is separated by a chartered
city or cities which do not contribute to the income of the province.” For as
long as there is compliance with the income requirement, the legislative intent
is, after all, to the effect that the land area and population requirements may
be overridden by the established economic viability of the proposed province.
In the aforesaid December 21, 2009 Decision
in the League of Cities case, the
Court sagely ruled that “(t)he legislative intent is not at all times
accurately reflected in the manner in which the resulting law is couched. Thus,
applying a verba legis or strictly
literal interpretation of a statute may render it meaningless and lead to
inconvenience, an absurd situation or injustice. To obviate this aberration,
and bearing in mind the principle that the intent or the spirit of the law is
the law itself, resort should be to the rule that the spirit of the law
controls its letter.” Indeed, the forum
for examining the wisdom of the law, and enacting remedial measures, is not
this Court but the Legislature.[10] Consequently, courts will not follow the
letter of the statute when to do so would depart from the true intent of the
legislature or would otherwise yield conclusions inconsistent with the general
purpose of the act.[11]
Without taking into consideration the
aforesaid legislative intent, the ponencia
clearly resorted to a strict verba legis
interpretation in invalidating the portion of Article 9 of the IRR which states
that, “The land area requirement shall not apply where the proposed province is
composed of one (1) or more islands.” In
determining that the Province of Dinagat Islands failed to comply with the land
area requirement, it also relied heavily on the Court’s pronouncements in Tan v. COMELEC[12] where the principal issue was, however,
the invalidity of the creation of the province of Negros Del Norte on account
of the fact that the plebiscite therefor conducted did not include the parent
province of Negros Oriental. Although
the collateral issue of compliance with the land area requirement was resolved
pursuant to Section 197 of Batas Pambansa
Blg. 337 and not Section 461 of the present Local Government Code, the ponencia further ruled that the
requirements under both laws are similar and that there is no reason for a
change in the definitions, usage or meaning of the terms “territory” and
“contiguous” in said laws.
As hereinbefore observed, however, Section 197
of Batas Pambansa Blg. 337,
unlike Section 461 of the Local
Government Code of 1991, gave equal premium to the income, land area and
population requirements for the creation of new provinces. Even prescinding from the current decrease in
population and land area requirement as well as the increase in the income
requirement, it cannot, therefore, be validly argued that the requisites for
the creation of a province under both laws are similar. Given the lesser importance accorded the land
area and population under Section 461 of the present Local Government Code, I
find that the propriety of applying the restrictive interpretation of the land
area requirement in Tan v. COMELEC to
the creation of the Province of Dinagat Islands is not as cut and dried as the ponencia considered it to be. More so, when it is borne in mind that, unlike
the one conducted for the proposed
In ordaining the enactment of a local
government code, Section 3, Article X of the Constitution envisioned one “which
shall provide for a more responsive and accountable local government structure
instituted through a system of decentralization.” Paying attention to this principle, Section
2(a) of the Local Government Code of 1991 provides as follows:
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. Towards 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.
To my mind, it was undoubtedly in the
service of the foregoing principles and policies that the house bill creating
the Province of Dinagat Islands was passed by Congress and enacted into law by
the President. As an organic law,
Republic Act No. 9355 also garnered the majority of the votes cast in the
plebiscite conducted not only in the municipalities constituting the newly
created province but also the parent
JOSE
[1] G.R. No. 146342, October 26, 2001.
[2] 142 SCRA 727.
[3] Three Senators appointed by the Senate President, to include the Chairman of the Committee on Local Government.
[4] The Congressmen appointed by the Speaker, to include the Chairman of the Committee on Local Government.
[5] Secretary of Interior and Local Government, Secretary of Finance, Secretary of Budget and Management.
[6] One representative each from the League of Provinces, League of Cities, League of Municipalities and Liga ng mga Barangay.
[7] Galarosa
v.
[8] 571 SCRA 263.
[9] 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 pesos, 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.
[10] Peñera v. COMELEC, G.R. No. 181613, November 25, 2009.
[11] Mariano v. COMELEC, G.R. Nos. 118577 and 118627, March 7, 1995.
[12] Supra.