Constitution, Article X - Local Government
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 the approval by a majority of the votes cast in a plebiscite in the political units directly affected.
LGC, Title IV, Chapter I
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 continuous 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. (Emphasis supplied.)
RESOLUTION NO. 8790
WHEREAS, Dinagat Islands, consisting of seven (7) municipalities, were previously components of the First Legislative District of the Province of Surigao del Norte. In December 2006 pursuant to Republic Act No. 9355, the Province of Dinagat Island[s] was created and its creation was ratified on 02 December 2006 in the Plebiscite for this purpose;
WHEREAS, as a province, Dinagat Islands was, for purposes of the May 10, 2010 National and Local Elections, allocated one (1) seat for Governor, one (1) seat for Vice Governor, one (1) for congressional seat, and ten (10) Sangguniang Panlalawigan seats pursuant to Resolution No. 8670 dated 16 September 2009;
WHEREAS, the Supreme Court in G.R. No. 180050 entitled "Rodolfo Navarro, et al., vs. Executive Secretary Eduardo Ermita, as representative of the President of the Philippines, et al." rendered a Decision, dated 10 February 2010, declaring Republic Act No. 9355 unconstitutional for failure to comply with the criteria for the creation of a province prescribed in Sec. 461 of the Local Government Code in relation to Sec. 10, Art. X, of the 1987 Constitution;
WHEREAS, respondents intend to file Motion[s] for Reconsideration on the above decision of the Supreme Court;
WHEREAS, the electoral data relative to the: (1) position for Member, House of Representatives representing the lone congressional district of Dinagat Islands, (2) names of the candidates for the aforementioned position, (3) position for Governor, Dinagat Islands, (4) names of the candidates for the said position, (5) position of the Vice Governor, (6) the names of the candidates for the said position, (7) positions for the ten (10) Sangguniang Panlalawigan Members and, 8 all the names of the candidates for Sangguniang Panlalawigan Members, have already been configured into the system and can no longer be revised within the remaining period before the elections on May 10, 2010.
NOW, THEREFORE, with the current system configuration, and depending on whether the Decision of the Supreme Court in Navarro vs. Ermita is reconsidered or not, the Commission RESOLVED, as it hereby RESOLVES, to declare that:x x x x
- If the Decision is reversed, there will be no problem since the current system configuration is in line with the reconsidered Decision, meaning that the Province of Dinagat Islands and the Province of Surigao del Norte remain as two (2) separate provinces;
- If the Decision becomes final and executory before the election, the Province of Dinagat Islands will revert to its previous status as part of the First Legislative District, Surigao del Norte.
But because of the current system configuration, the ballots for the Province of Dinagat Islands will, for the positions of Member, House of Representatives, Governor, Vice Governor and Members, Sangguniang Panlalawigan, bear only the names of the candidates for the said positions.
Conversely, the ballots for the First Legislative District of Surigao del Norte, will, for the position of Governor, Vice Governor, Member, House of Representatives, First District of Surigao del Norte and Members, Sangguniang Panlalawigan, show only candidates for the said position. Likewise, the whole Province of Surigao del Norte, will, for the position of Governor and Vice Governor, bear only the names of the candidates for the said position[s].
Consequently, the voters of the Province of Dinagat Islands will not be able to vote for the candidates of Members, Sangguniang Panlalawigan, and Member, House [of] Representatives, First Legislative District, Surigao del Norte, and candidates for Governor and Vice Governor for Surigao del Norte. Meanwhile, voters of the First Legislative District of Surigao del Norte, will not be able to vote for Members, Sangguniang Panlalawigan and Member, House of Representatives, Dinagat Islands. Also, the voters of the whole Province of Surigao del Norte, will not be able to vote for the Governor and Vice Governor, Dinagat Islands. Given this situation, the Commission will postpone the elections for Governor, Vice Governor, Member, House of Representatives, First Legislative District, Surigao del Norte, and Members, Sangguniang Panlalawigan, First Legislative District, Surigao del Norte, because the election will result in [a] failure to elect, since, in actuality, there are no candidates for Governor, Vice Governor, Members, Sangguniang Panlalawigan, First Legislative District, and Member, House of Representatives, First Legislative District (with Dinagat Islands) of Surigao del Norte.- If the Decision becomes final and executory after the election, the Province of Dinagat Islands will revert to its previous status as part of the First Legislative District of Surigao del Norte. The result of the election will have to be nullified for the same reasons given in Item "b" above. A special election for Governor, Vice Governor, Member, House of Representatives, First Legislative District of Surigao del Norte, and Members, Sangguniang Panlalawigan, First District, Surigao del Norte (with Dinagat Islands) will have to be conducted.
SO ORDERED.
c. If the Decision becomes final and executory after the election, the Province of Dinagat Islands will revert to its previous status as part of the First Legislative District of Surigao del Norte. The result of the election will have to be nullified for the same reasons given in Item "b" above. A special election for Governor, Vice Governor, Member, House of Representatives, First Legislative District of Surigao del Norte, and Members, Sangguniang Panlalawigan, First District, Surigao del Norte (with Dinagat Islands) will have to be conducted. (Emphasis supplied.)
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. LAGUDA. 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 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 the 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. LAGUDA. Ne, Ne. A province is constituted for the purpose of administrative efficiency and delivery of basic services.
CHAIRMAN PIMENTEL. Right.
HON. LAGUDA. 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. LAGUDA. 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. LAGUDA. 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."25
For a Barangay:
LGC: SEC. 386. Requisites for Creation. - (a) A barangay may be created out of a contiguous territory which has a population of at least two thousand (2,000) inhabitants as certified by the National Statistics Office except in cities and municipalities within Metro Manila and other metropolitan political subdivisions or in highly urbanized cities where such territory shall have a certified population of at least five thousand (5,000) inhabitants: Provided, That the creation thereof shall not reduce the population of the original barangay or barangays to less than the minimum requirement prescribed herein.
To enhance the delivery of basic services in the indigenous cultural communities, barangays may be created in such communities by an Act of Congress, notwithstanding the above requirement.
(b) The territorial jurisdiction of the new barangay shall be properly identified by metes and bounds or by more or less permanent natural boundaries. The territory need not be contiguous if it comprises two (2) or more islands.
(c) The governor or city mayor may prepare a consolidation plan for barangays, based on the criteria prescribed in this Section, within his territorial jurisdiction. The plan shall be submitted to the sangguniang panlalawigan or sangguniang panlungsod concerned for appropriate action. In the case of municipalities within the Metropolitan Manila area and other metropolitan political subdivisions, the barangay consolidation plan can be prepared and approved by the sangguniang bayan concerned.
LGC-IRR: ARTICLE 14. Barangays. - (a) Creation of barangays by the sangguniang panlalawigan shall require prior recommendation of the sangguniang bayan.
(b) New barangays in the municipalities within MMA shall be created only by Act of Congress, subject to the limitations and requirements prescribed in this Article.
(c) Notwithstanding the population requirement, a barangay may be created in the indigenous cultural communities by Act of Congress upon recommendation of the LGU or LGUs where the cultural community is located.
(d) A barangay shall not be created unless the following requisites are present:
(1) Population - which shall not be less than two thousand (2,000) inhabitants, except in municipalities and cities within MMA and other metropolitan political subdivisions as may be created by law, or in highly-urbanized cities where such territory shall have a population of at least five thousand (5,000) inhabitants, as certified by the NSO. The creation of a barangay shall not reduce the population of the original barangay or barangays to less than the prescribed minimum/
(2) Land Area - which must be contiguous, unless comprised by two (2) or more islands. The territorial jurisdiction of a barangay sought to be created shall be properly identified by metes and bounds or by more or less permanent natural boundaries.
Municipality:
LGC: SEC. 442. Requisites for Creation. - (a) A municipality may be created if it has an average annual income, as certified by the provincial treasurer, or at least Two million five hundred thousand pesos (P2,500,000.00) for the last two (2) consecutive years based on the 1991 constant prices; a population of at least twenty-five thousand (25,000) inhabitants as certified by the National Statistics Office; and a contiguous territory of at least fifty (50) square kilometers as certified by the Lands
Management Bureau: Provided, That the creation thereof shall not reduce the land area, population or income of the original municipality or municipalities at the time of said creation to less than the minimum requirements prescribed herein.
(b) The territorial jurisdiction of a newly-created municipality shall be properly identified by metes and bounds. The requirement on land area shall not apply where the municipality proposed to be created is composed of one (1) or more islands. The territory need not be contiguous if it comprises two (2) or more islands.
(c) The average annual income shall include the income accruing to the general fund of the municipality concerned, exclusive of special funds, transfers and non-recurring income.
(d) Municipalities existing as of the date of effectivity of this Code shall continue to exist and operate as such. Existing municipal districts organized pursuant to presidential issuances or executive orders and which have their respective set of elective municipal officials holding office at the time of the effectivity of this Code shall henceforth be considered regular municipalities.
LGC-IRR: ARTICLE 13. Municipalities. - (a) Requisites for Creation - A municipality shall not be created unless the following requisites are present:
(i) Income - An average annual income of not less than Two Million Five Hundred Thousand Pesos (P2,500,000.00), for the immediately preceding two (2) consecutive years based on 1991 constant prices, as certified by the provincial treasurer. The average annual income shall include the income accruing to the general fund, exclusive of special funds, special accounts, transfers, and nonrecurring income; (ii) Population - which shall not be less than twenty five thousand (25,000) inhabitants, as certified by NSO; and (iii) Land area - which must be contiguous with an area of at least fifty (50) square kilometers, as certified by LMB. The territory need not be contiguous if it comprises two (2) or more islands. The requirement on land area shall not apply where the proposed municipality is composed of one (1) or more islands. The territorial jurisdiction of a municipality sought to be created shall be properly identified by metes and bounds.
The creation of a new municipality 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.
City:
LGC: SEC. 450. Requisites for Creation. - (a) A municipality or a cluster of barangays may be converted into a component city if it has an average annual income, as certified by the Department of Finance, of at least Twenty million pesos (P20,000,000.00) for the last two (2) consecutive years based on 1991 constant prices, and if it has either of the following requisities:
(i) a contiguous territory of at least one hundred (100) square kilometers, as certified by the Lands Management Bureau; or, (ii) a population of not less than one hundred fifty thousand (150,000) inhabitants, as certified by the National Statistics Office: Provided, That, the creation thereof shall not reduce the land area, population, and income of the original unit or units at the time of said creation to less than the minimum requirements prescribed herein.
(b) The territorial jurisdiction of a newly-created city shall be properly identified by metes and bounds. The requirement on land area shall not apply where the city proposed to be created is composed of one (1) or more islands. The territory need not be contiguous if it comprises two (2) or more islands.
(c) The average annual income shall include the income accruing to the general fund, exclusive of special funds, transfers, and non-recurring income.
LGC-IRR: ARTICLE 11. Cities. - (a) Requisites for creation - A city 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 one hundred fifty thousand (150,000) inhabitants, as certified by the NSO; or land area which must be contiguous with an area of at least one hundred (100) 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 city is composed of one (1) or more islands. The territorial jurisdiction of a city sought to be created shall be properly identified by metes and bounds.
The creation of a new city 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.
Provinces:
LGC: 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 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.
LGC-IRR: ARTICLE 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 non-recurring 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. (Emphasis supplied.)
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.
WHEREAS, Section 25, Article II of the Constitution mandates that the State shall ensure the autonomy of local governments;
WHEREAS, pursuant to this declared policy, Republic Act No. 7160, otherwise known as the Local Government Code of 1991, affirms, among others, 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;
WHEREAS, Section 533 of the Local Government Code of 1991 requires the President to convene an Oversight Committee for the purpose of formulating and issuing the appropriate rules and regulations necessary for the efficient and effective implementation of all the provisions of the said Code; and
WHEREAS, the Oversight Committee, after due deliberations and consultations with all the concerned sectors of society and consideration of the operative principles of local autonomy as provided in the Local Government Code of 1991, has completed the formulation of the implementing rules and regulations; x x x
CHAIRMAN ALFELOR. Can we give time to Congressman Chiongbian,28 with respect to his...
CHAIRMAN LINA. Okay.
HON. CHIONGBIAN. At the outset, Chairman Lina, we would like to apprise the distinguished Senator about the action taken by the House, on House Bill No. 7166. This was passed about two years ago and has been pending in the Senate for consideration. This is a bill that I am not the only one involved, including our distinguished Chairman here. But then we did want to sponsor the bill, being the Chairman then of the Local Government.
So, I took the cudgels for the rest of the Congressmen, who were more or less interested in the creation of the new provinces, because of the vastness of the areas that were involved.
At any rate, this bill was passed by the House unanimously without any objection. And as I have said a while ago, that this has been pending in the Senate for the last two years. And Sen. Pimentel himself was just in South Cotabato and he delivered a speech that he will support this bill, and he says, that he will incorporate this in the Local Government Code, which I have in writing from him. I showed you the letter that he wrote, and naturally, we in the House got hold of the Senate version. It becomes an impossibility for the whole Philippines to create a new province, and that is quite the concern of the respective Congressmen.
Now, insofar as the constitutional provision is concerned, there is nothing to stop the mother province from voting against the bill, if a province is going to be created.
So, we are talking about devolution of powers here. Why is the province not willing to create another province, when it can be justified. Even Speaker Mitra says, what will happen to Palawan? We won't have one million people there, and if you look at Palawan, there will be about three or four provinces that will comprise that island. So, the development will be hampered.
Now, I would like to read into the record the letter of Sen. Pimentel, dated November 2, 1989. This was practically about a year after 7166 was approved by the House, House Bill 7166.
On November 2, 1989, the Senator wrote me:
"Dear Congressman Chiongbian:
We are in receipt of your letter of 17 October. Please be informed that your House No. 7166 was incorporated in the proposed Local Government Code, Senate Bill No. 155, which is pending for second reading.
Thank you and warm regards.Very truly yours,"
That is the very context of the letter of the Senator, and we are quite surprised that the Senate has adopted another position.
So, we would like - because this is a unanimously approved bill in the House, that's the only bill that is involving the present Local Government Code that we are practically considering; and this will be a slap on the House, if we do not approve it, as approved by the lower House. This can be [an] irritant in the approval of the Conference Committee Report. And I just want to manifest that insofar as the creation of the province, not only in my province, but the other provinces. That the mother province will participate in the plebiscite, they can defeat the province, let's say, on the basis of the result, the province cannot be created if they lose in the plebiscite, and I don't see why, we should put this stringent conditions to the private people of the devolution that they are seeking.
So, Mr. Senator, I think we should consider the situation seriously, because, this is an approved version of the House, and I will not be the one to raise up and question the Conference Committee Report, but the rest of the House that are interested in this bill. And they have been approaching the Speaker about this. So, the Speaker reminded me to make sure that it takes the cudgel of the House approved version.
So, that's all what I can say, Mr. Senator, and I don't believe that it is not, because it's the wish of the House, but because the mother province will participate anyhow, you vote them down; and that is provided for in the Constitution. As a matter of fact, I have seen the amendment with regards to the creation of the city to be urbanized, subject to the plebiscite. And why should we not allow that to happen in the provinces! In other words, we don't want the people who wants to create a new province, as if they are left in the devolution of powers, when they feel that they are far away from civilization.
Now, I am not talking about other provinces, because I am unaware, not aware of their situation. But the province of South Cotabato has a very unique geographical territorial conglomerations. One side is in the other side of the Bay, of Sarangani Bay. The capital town is in the North; while these other municipalities are in the East and in the West. And if they have to travel from the last town in the eastern part of the province, it is about one hundred forty kilometers to the capital town. And from the West side, it is the same distance. And from the North side, it is about one hundred kilometers. So that is the problem there. And besides, they have enough resources and I feel that, not because I am interested in the province, I am after their welfare in the future. Who am I to dictate on those people? I have no interest but then I am looking at the future development of these areas.
As a matter of fact, if I am in politics, it's incidental; I do not need to be there, but I can foresee what the creation of a new province will bring to these people. It will bring them prosperity; it will bring them more income, and it will encourage even foreign investors. Like the PAP now, they are concentrating in South Cotabato, especially in the City of
General Santos and the neighboring municipalities, and they are quite interested and even the AID people are asking me, "What is holding the creation of a new province when practically you need it?" It's not 20 or 30 kilometers from the capital town; it's about 140 kilometers. And imagine those people have to travel that far and our road is not like Metropolitan Manila. That is as far as from here to Tarlac. And there are municipalities there that are just one municipality is bigger than the province of La Union. They have the income. Of course, they don't have the population because that's a part of the land of promise and people from Luzon are migrating everyday because they feel that there are more opportunities here.
So, by creating the new provinces, not only in my case, in the other cases, it will enhance the development of the Philippines, not because I am interested in my province. Well, as far as I am concerned, you know, I am in the twilight years of my life to serve and I would like to serve my people well. No personal or political interest here. I hope the distinguished Chairman of the Committee will appreciate the House Bill 7166, which the House has already approved because we don't want them to throw the Conference Committee Report after we have worked that the house Bill has been, you know, drawn over board and not even considered by the Senate. And on top of that, we are considering a bill that has not yet been passed. So I hope the Senator will take that into account.
Thank you for giving me this time to explain.
CHAIRMAN LINA. Thank you very much, Congressman James. We will look into the legislative history of the Senate version on this matter of creation of provinces. I am sure there was an amendment. As I said, I'll look into it. Maybe the House version was incorporated in toto, but maybe during the discussion, their amendments were introduced and, therefore, Senator Pimentel could not hold on to the original version and as a result new criteria were introduced.
But because of the manifestation that you just made, we will definitely, when we reach a book, Title IV, on the matter of provinces, we will look at it sympathetically from your end so that the objective that you want [to] achieve can be realized. So we will look at it with sympathy. We will review our position on the matter, how we arrived at the Senate version and we will adopt an open mind definitely when we come into it.
CHAIRMAN ALFELOR. Kanino 'yan?
CHAIRMAN LINA. Book III.
CHAIRMAN ALFELOR. Title?
CHAIRMAN LINA. Title IV.
CHAIRMAN ALFELOR. I have been pondering on the case of James, especially on economic stimulation of a certain area. Like our case, because I put myself on our province, our province is quite very big. It's composed of four (4) congressional districts and I feel it should be five now. But during the Batasan time, four of us talked and conversed proposing to divide the province into two.
There are areas then, when since time immemorial, very few governors ever tread on those areas. That is, maybe you're acquainted with the Bondoc Peninsula of Quezon, fronting that is Ragay Gulf. From Ragay there is a long stretch of coastal area. From Albay going to Ragay, very few governors ever tread [there] before, even today. That area now is infested with NPA. That is the area of Congressman Andaya.
Now, we thought that in order to stimulate growth, maybe provincial aid can be extended to these areas. With a big or a large area of a province, a certain administrator or provincial governor definitely will have no sufficient time. For me, if we really would like to stimulate growth, I believe that an area where there is physical or geographical impossibilities, where administrators can penetrate, I think we have to create certain provisions in the law where maybe we can treat it with special considerations.
Now, we went over the graduate scale of the Philipppine Local Government Data as far as provinces are concerned. It is very surprising that there are provinces here which only composed of six municipalities, eight municipalities, seven municipalities. Like in Cagayan, Tuguegarao, there are six municipalities. Ah, excuse me, Batanes.
CHAIRMAN LINA. Will you look at the case of --- how many municipalities are there in Batanes province?
CHAIRMAN ALFELOR. Batanes is only six.
CHAIRMAN LINA. Six town. Siquijor?
CHAIRMAN ALFELOR. Siquijor. It is region?
CHAIRMAN LINA. Seven.
CHAIRMAN ALFELOR.L Seven. Anim.
CHAIRMAN LINA. Six also.
CHAIRMAN ALFELOR. Six also.
CHAIRMAN LINA. It seems with a minimum number of towns?
CHAIRMAN ALFELOR. The population of Siquijor is only 70 thousand, not even one congressional district. But tumaas in 1982. Camiguin, that is Region 9. Wala dito. Nagtataka nga ako ngayon.
CHAIRMAN LINA. Camiguin, Camiguin.
CHAIRMAN ALFELOR. That is region? Camiguin has five municipalities, with a population of 63 thousand. But we do not hold it against the province because maybe that's one stimulant where growth can grow, can start. The land area for Camiguin is only 229 square kilometers. So if we hard fast on requirements of, we set a minimum for every province, palagay ko we just leave it to legislation, eh. Anyway, the Constitution is very clear that in case we would like to divide, we submit it to a plebiscite. Pabayaan natin ang tao. Kung maglalagay tayo ng set ng minimum, tila yata mahihirapan tayo, eh. Because what is really the thrust of the Local Government Code? Growth. To devolve powers in order for the community to have its own idea how they will stimulate growth in their respective areas.
So, in every geographical condition, mayroon sariling id[i]osyncracies eh, we cannot make a generalization.
CHAIRMAN LINA. Will the creation of a province, carved out of the existing province because of some geographical id[i]osyncracies, as you called it, stimulate the economic growth in the area or will substantial aid coming from the national government to a particular area, say, to a municipality, achieve the same purpose?
CHAIRMAN ALFELOR. Ano tayo dito sa budget. All right, here is a province. Usually, tinitingnan lang yun, provision eh, hindi na yung composition eh. You are entitled to, say, 20% of the area.
There's a province of Camarines Sur which have the same share with that of Camiguin and Siquijor, but Camiguin is composed only of five municipalities; in Siquijor, it's composed of six, but the share of Siquijor is the same share with that of the province of Camarines Sur, having a bigger area, very much bigger.
That is the budget in process.
CHAIRMAN LINA. Well, as I said, we are going to consider this very seriously and even with sympathy because of the explanation given and we will study this very carefully.29
Section 3. The Congress shall enact a local government code which shall provide for a more responsive and accountable local government structure instituted through a system of decentralization with effective mechanisms of recall, initiative, and referendum, allocate among the different local government units their powers, responsibilities, and resources, and provide for the qualifications, election, appointment and removal, term, salaries, powers and functions and duties of local officials, and all other matters relating to the organization and operation of the local units. (Emphasis supplied.)
Ratio legis est anima. The spirit rather than the letter of the law. A statute must be read according to its spirit or intent, for what is within the spirit is within the statute although it is not within its letter, and that which is within the letter but not within the spirit is not within the statute. Put a bit differently, that which is within the intent of the lawmaker is as much within the statute as if within the letter, and that which is within the letter of the statute is not within the statute unless within the intent of the lawmakers. Withal, courts ought not to interpret and should not accept an interpretation that would defeat the intent of the law and its legislators.
So as it is exhorted to pass on a challenge against the validity of an act of Congress, a co-equal branch of government, it behooves the Court to have at once one principle in mind: the presumption of constitutionality of statutes. This presumption finds its roots in the tri-partite system of government and the corollary separation of powers, which enjoins the three great departments of the government to accord a becoming courtesy for each other's acts, and not to interfere inordinately with the exercise by one of its official functions. Towards this end, courts ought to reject assaults against the validity of statutes, barring of course their clear unconstitutionality. To doubt is to sustain, the theory in context being that the law is the product of earnest studies by Congress to ensure that no constitutional prescription or concept is infringed. Consequently, before a law duly challenged is nullified, an unequivocal breach of, or a clear conflict with, the Constitution, not merely a doubtful or argumentative one, must be demonstrated in such a manner as to leave no doubt in the mind of the Court.
Endnotes:
1 Congressman Francisco T. Matugas (incumbent Congressman of the First Legislative District of Surigao del Norte), Hon. Sol T. Matugas, Hon. Arturo Carlos A. Egay, Jr. (incumbent Governor and Vice Governor, respectively, of the Province of Surigao del Norte), Hon. Simeon Vicente G. Castrence, Hon. Mamerto D. Galanida, Hon. Margarito M. Longos, and Hon. Cesar M. Bagundol (incumbent Board Members of the First Provincial District of Surigao del Norte).
2 Passed by the House of Representatives and the Senate on August 28, 2006 and August 14, 2006, respectively.
3 R.A. No. 7160, Sec. 10.
SECTION. 10. Plebiscite Requirement. - No creation, division, merger, abolition, or substantial alteration of boundaries of local government units shall take effect unless approved by a majority of the votes cast in a plebiscite called for the purpose in the political unit or units directly affected. Said plebiscite shall be conducted by the Commission on Elections (COMELEC) within one hundred twenty (120) days from the date of effectivity of the law or ordinance effecting such action, unless said law or ordinance fixes another date.
4 Rollo, pp. 124-127.
5 Id. at 143.
6 Rollo (G.R. No. 175158), pp. 3-20.
7 Per the November 28, 2006 Resolution, the Court dismissed the petition due to its defective or insufficient verification and certification of non-forum shopping and the failure of petitioners' counsel to indicate an updated Integrated Bar of the Philippines official receipt. In its February 13, 2007 Resolution, the Court dismissed the petition with finality. On April 11, 2007, an Entry of Judgment was issued. (Id. at 77A and 112.)
8 Rollo, pp. 3-43.
9 Id. at 736-765.
10 Penned by Associate Justice Diosdado M. Peralta, with Chief Justice Reynato S. Puno (now retired) and Associate Justices Antonio T. Carpio, Conchita Carpio Morales, Arturo D. Brion, Mariano C. Del Castillo, Martin S. Villarama, Jr., Jose Portugal Perez, and Jose Catral Mendoza, concurring.
11 Dissented to by Associate Justice Antonio Eduardo B. Nachura, joined by Associate Justices Renato C. Corona (now Chief Justice), Presbitero J. Velasco, Jr., Teresita J. Leonardo-De Castro, Lucas P. Bersamin, and Roberto A. Abad.
12 Penned by Associate Justice Diosdado M. Peralta, with Chief Justice Reynato S. Puno (now retired) and Associate Justices Antonio T. Carpio, Conchita Carpio-Morales, Arturo D. Brion, Mariano C. Del Castillo, Martin S. Villarama, Jr., and Jose Catral Mendoza, concurring.
13 Dissented to by Associate Justice Jose Portugal Perez, joined by Associate Justices Renato C. Corona (now Chief Justice), Antonio Eduardo B. Nachura, Teresita J. Leonardo-De Castro, Lucas P. Bersamin, and Roberto A. Abad.
14 Rollo, pp. 984-997.
15 Id. at 1153-1154.
16 Id. at 1155- 1158.
17 Quinto v. Commission on Elections, G.R. No. 189698, February 22, 2010, 613 SCRA 385; Office of the Ombudsman v. Miedes, Sr., G.R. No. 176409, February 27, 2008, 547 SCRA 148; Pinlac v. Court of Appeals, 457 Phil. 527 (2003); Mago v. Court of Appeals, 363 Phil. 225 (1999); Lim v. Pacquing, G.R. No. 115044, January 27, 1995, 240 SCRA 649; Tahanan Development Corporation v. Court of Appeals, 203 Phil. 652 (1982); and Director of Lands v. Court of Appeals, 181 Phil. 432 (1979).
18 Sec. 3. Second Motion for Reconsideration. - The Court shall not entertain a second motion for reconsideration and any exception to this rule can only be granted in the higher interest of just by the Court en banc upon a vote of at least two-thirds of its actual membership. There is reconsideration "in the higher interest of justice" when the assailed decision is not only legally erroneous, but is likewise patently unjust and potentially capable of causing unwarranted and irremediable injury or damage to the parties. A second motion for reconsideration can only be entertained before the ruling sought to be reconsidered becomes final by operation of law or by the Court's declaration.
19 The Province of North Cotabato v. Republic, G.R. No. 183591, October 14, 2008, 568 SCRA 402, citing Firestone Ceramics, Inc. v. Court of Appeals, 372 Phil. 401 (1999) and Vicente V. Mendoza, JUDICIAL REVIEW OF CONSTITUTIONAL QUESTIONS 137 (2004).
20 David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006, 489 SCRA 160.
21 Id. at 223.
22 See Tan Tiac Chiong v. Hon. Rodrigo Cosico, 434 Phil. 753 (2002); People v. Hon. Chavez, 411 Phil. 482 (2001).
23 Id.
24 Manotok IV v. Heirs of Homer L. Barque, G.R. Nos. 162335 & 162605, December 18, 2008, 574 SCRA 468, 492.
25 Bicameral Conference Committee Meeting of the Committee on Local Government, May 22, 1991, 4th Regular Session, pp. 57-67.
26 ARTICLE 3. Declaration of Policy. - (a) It is hereby declared the policy of the Sate 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 (LGUs) shall be given more powers, authority, responsibilities, and resources. The process of decentralization shall proceed from the National Government to the LGUs.
27 Prescribing the Implementing Rules and Regulations of the Local Government Code of 1991.
28 Congressman Chiongbian is one of the sponsors of House Bill No. 34061, the House of Representatives version of the proposed Local Government Code.
29 Bicameral Conference Committee on Local Government (Book III), March 13, 1991, pp. 18-28.
30 Section 284. Allotment of Internal Revenue Taxes. - Local government units shall have a share in the national internal revenue taxes based on the collection of the third fiscal year preceding the current fiscal year as follows:
(a) On the first year of the effectivity of this Code, thirty percent (30%);
(b) On the second year, thirty-five percent (35%); and
(c) On the third year and thereafter, forty percent (40%):
Provided, That in the event that the National Government incurs an unmanageable public sector deficit, the President of the Philippines is hereby authorized, upon the recommendation of the Secretary of Finance, Secretary of Interior and Local Government, and Secretary of Budget and Management, and subject to consultation with the presiding officers of both Houses of Congress and the presidents of the "liga", to make the necessary adjustments in the internal revenue allotment of local government units but in no case shall the allotment be less than thirty percent (30%) of the collection of national internal revenue taxes of the third fiscal year preceding the current fiscal year: Provided, further, That in the first year of the effectivity of this Code, the local government units shall, in addition to the thirty percent (30%) internal revenue allotment which shall include the cost of devolved functions for essential public services, be entitled to receive the amount equivalent to the cost of devolved personal services.
Section 285. Allocation to Local Government Units. - The share of local government units in the internal revenue allotment shall be allocated in the following manner:
(a) Provinces - Twenty-three percent (23%);
(b) Cities - Twenty-three percent (23%);
(c) Municipalities - Thirty-four percent (34%); and
(d) Barangays - Twenty percent (20%):
Provided, however, That the share of each province, city, and municipality shall be determined on the basis of the following formula:
(a) Population - Fifty percent (50%);
(b) Land Area - Twenty-five percent (25%) and
(c) Equal Sharing - Twenty-five percent (25%):
Provided, further, That the share of each barangay with a population of not less than one hundred (100) inhabitants shall not be less than Eighty thousand pesos (P80,000.00) per annum chargeable against the twenty percent (20%) share of the barangay from the internal revenue allotment, and the balance to be allocated on the basis of the following formula:
(a) On the first year of the effectivity of this Code:
(1) Population - Forty percent (40%); and
(2) Equal Sharing - Sixty percent (60%)
(b) On the second year:
(1) Population - Fifty percent (50%); and
(2) Equal Sharing - Fifty percent (50%)
(c) On the third year and thereafter:
(1) Population - Sixty percent (60%); and
(2) Equal Sharing - Forty percent (40%):
Provided, finally, That the financial requirements of barangays created by local government units after the effectivity of this Code shall be the responsibility of the local government unit concerned.
31 Commissioner of Internal Revenue v. Solidbank Corp., 462 Phil. 96, 129-131, 416 SCRA 436 (2003); Republic v. Court of Appeals, 359 Phil. 530, 559; 299 SCRA 199 (1998).
32 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.
(c) The Committee shall submit its report and recommendation to the President within two (2) months after its organization. If the President fails to act within thirty (30) days from receipt thereof, the recommendation of the Oversight Committee shall be deemed approved. Thereafter, the Committee shall supervise the transfer of such powers and functions mandated under this Code to the local government units, together with the corresponding personnel, properties, assets and liabilities of the offices or agencies concerned, with the least possible disruptions to existing programs and projects. The Committee shall likewise recommend the corresponding appropriations necessary to effect the said transfer.
For this purpose, the services of a technical staff shall be enlisted from among the qualified employees of Congress, the government offices, and the leagues constituting the Committee.
(d) The funding requirements and the secretariat of the Committee shall be provided by the Office of the Executive Secretary.
(e) The sum of Five million pesos (P5,000,000.00), which shall be charged against the Contingent Fund, is hereby allotted to the Committee to fund the undertaking of an information campaign on this Code. The Committee shall formulate the guidelines governing the conduct of said campaign, and shall determine the national agencies or offices to be involved for this purpose. (Emphasis supplied.)
33 As found in the Whereas clauses of Administrative Order No. 270 prescribing the Implementing Rules and Regulations of the Local Government Code of 1991, viz.:
WHEREAS, the Oversight Committee, after due deliberations and consultations with all the concerned sectors of society and consideration of the operative principles of local autonomy as provided in the Local Government Code of 1991, has completed the formulation of the implementing rules and regulations. (Emphasis supplied.)
34 Galarosa v. Valencia, G.R. No. 109455, November 11, 1993, 227 SCRA 728.
35 G.R. Nos. 176951, 177499, and 178056, December 21, 2009, 608 SCRA 636, 644-645.
CONCURRING OPINION
DEL CASTILLO, J.:Great cases, like hard cases, make bad law. For great cases are called great not by reason of their real importance in shaping the law of the future,but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend.
Justice Oliver Wendell Holmes
Northern Securities Co. v. United States 1
On the abstract principles which govern courts in construing legislative acts, no difference of opinion can exist. It is only in the application of those principles that the difference discovers itself.
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.3 (Underscoring supplied)
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:
(i) 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 the DOF. The average annual income shall include the income accruing to the general fund, exclusive of special funds, special accounts, transfers, and non-recurring income; and
(ii) Population or land area - Population 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.
As Justice Nachura points out, as regards the creation of barangays,land area is not included as a requirement. However, a minimum land area is provided for the creation of municipalities, cities, and provinces. Furthermore, while an exemption4 is provided for municipalities and cities in cases where the LGU concerned is composed of one or more islands, in stark contrast, no such exemption exists with respect to provinces.
LGU Land Area Requirement Barangay No minimum land area requirement. Rather, the barangay must be created out of a contiguous territory with a population of at least two thousand (2,000) inhabitants [Sec. 386(a), LGC] The territory need not be contiguous if it comprises two (2) or more islands. [Sec. 386(b), LGC] Municipality Contiguous territory of at least fifty (50) square kilometers Note - the land area requirement is IN ADDITION to the income requirement of at least Two Million Five Hundred Thousand Pesos (PhP2,500,000.00) in average annual income for the last 2 consecutive years AND the population requirement of at least Twenty Five Thousand (25,000) inhabitants. [Sec. 442(a), LGC] The requirement on land area shall not apply where the municipality proposed to be created is composed of one (1) or more islands. The territory need not be contiguous if it comprises two (2) or more islands. [Sec. 442(b), LGC] City Contiguous territory of at least one hundred (100) square kilometers Note - a city must have an average annual income of at least Twenty Million Pesos (PhP20,000,000.00) for the last 2 consecutive years AND comply with either the land area requirement OR have a population of at least one hundred fifty thousand (150,000) inhabitants. [Sec. 450(a), LGC] The requirement on land area shall not apply where the city proposed to be created is composed of one (1) or more islands. The territory need not be contiguous if it comprises two (2) or more islands. [Sec 450(b), LGC] Province Contiguous territory of at least two thousand (2,000) square kilometers. Note - a province must have an average annual income of at least Twenty Million Pesos (PhP20,000,000.00) AND comply with either the land area requirement OR have a population of at least two hundred fifty thousand (250,000) inhabitants. [Sec. 461(a), LGC] 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. [Sec 461(b), LGC]
Therefore,the statute, read as a whole, in the light of its legislative history, cannot be said to preclude the interpretation placed on it by the majority. But in interpreting a statute [such as the Local Government Code], we cannot take one sentence, one section, or even the entire statute alone and say that it has a "plain meaning" as if there were an objective formula in the few words simply waiting to be grasped by the courts. Instead the statute must be read as a whole, taking all of its provisions and reading them in the context of the legal fabric to which they are to be applied. An interpretation that creates an admittedly anomalous result is not salved by the majority's apologia that, if we read the statute in that fashion, Congress created the anomaly. Instead the question is whether the statute read as a whole was intended by Congress to create such results. The law is not an isolated bundle of capricious and inconsistent commands by a legislature presumed to react mindlessly.9
CHAIRMAN LINA: Will you look at the case of - how many municipalities are there in Batanes province? CHAIRMAN ALFELOR:
Batanes is only six.
CHAIRMAN LINA: Six town. Siquijor? CHAIRMAN ALFELOR:
Siquijor. It is region?
CHAIRMAN LINA: Seven. CHAIRMAN ALFELOR:
Seven. Anim.
CHAIRMAN LINA: Six also. CHAIRMAN ALFELOR:
Six also.
CHAIRMAN LINA: It seems with a minimum number of towns? CHAIRMAN ALFELOR: The population of Siquijor is only 70 thousand, not even one congressional district. But tumaas in 1982. Camiguin, that is Region 9. Wala dito. Nagtataka nga ako ngayon.
CHAIRMAN LINA: Camiguin, Camiguin. CHAIRMAN ALFELOR: That is region? Camiguin has five municipalities, with a population of 63 thousand. But we do not hold it against the province because maybe that's one stimulant where growth can grow, can start. The land area for Camiguin is only 229 square kilometers. So if we hard fast on requirements of, we set a minimum for every province, palagay ko we just leave it to legislation, eh. Anyway, the Constitution is very clear that in case we would like to divide, we submit it to a plebiscite. Pabayaan natin ang tao. Kung maglalagay tayo ng set ng minimum, tila yata mahihirapan tayo eh. Because what is really the thrust of the Local Government Code? Growth. To devolve powers in order for the community to have its own idea how they will stimulate growth in their respective areas.
So in every geographical condition, mayroong sariling idiosyncrasies eh. We cannot make a generalization.16
But as has also been aptly observed, we test a law by its results; and likewise, we may add, by its purposes. It is a cardinal rule that, in seeking the meaning of the law, the first concern of the judge should be to discover in its provisions the intent of the lawmaker. Unquestionably, the law should never be interpreted in such a way as to cause injustice as this is never within the legislative intent. An indispensable part of that intent, in fact, for we presume the good motives of the legislature, is to render justice.
Thus, we interpret and apply the law not independently of but in consonance with justice. Law and justice are inseparable, and we must keep them so. To be sure, there are some laws that, while generally valid, may seem arbitrary when applied in a particular case because of its peculiar circumstances. In such a situation, we are not bound, because only of our nature and functions, to apply them just the same, in slavish obedience to their language. What we do instead is find a balance between the word and the will, that justice may be done even as the law is obeyed.
As judges, we are not automatons. We do not and must not unfeelingly apply the law as it is worded, yielding like robots to the literal command without regard to its cause and consequence. "Courts are apt to err by sticking too closely to the words of a law," so we are warned, by Justice Holmes again, "where these words import a policy that goes beyond them." While we admittedly may not legislate, we nevertheless have the power to interpret the law in such a way as to reflect the will of the legislature. While we may not read into the law a purpose that is not there, we nevertheless have the right to read out of it the reason for its enactment. In doing so, we defer not to "the letter that killeth" but to "the spirit that vivifieth," to give effect to the law maker's will.The spirit, rather than the letter of a statute determines its construction, hence, a statute must be read according to its spirit or intent. For what is within the spirit is within the letter but although it is not within the letter thereof, and that which is within the letter but not within the spirit is not within the statute. Stated differently, a thing which is within the intent of the lawmaker is as much within the statute as if within the letter; and a thing which is within the letter of the statute is not within the statute unless within the intent of the lawmakers.18
Endnotes:
1 193 U.S. 197, 400-411 (1904) (Holmes, J. dissenting).
2 6 U.S. 358 (1805).
3 Article X, Section 10 of the Constitution also 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."
4 That "[t]he requirement on land area shall not apply where the city proposed to be created is composed of one (1) or more islands."
5 Since the effectivity of the Local Government Code on January 11, 1992,no issue has been raised concerning the land area requirement of provinces. The following provinces have been successfully created since 1992 - Biliran, Guimaras, Saranggani, Kalinga, Apayao, Compostela Valley, and Zamboanga Sibugay, and all of them had land areas of more than 2,000 sq. km. each.
Biliran and Guimaras (previously subprovinces of Leyte and Iloilo, respectively) were converted into regular provinces, pursuant to Sec. 462 of the Local Government Code. Sec. 462 provides:
SEC. 462. Existing Sub-Provinces. - Existing sub- provinces are hereby converted into regular provinces upon approval by a majority of the votes cast in a plebiscite to be held in the said subprovinces and the original provinces directly affected. The plebiscite shall be conducted by the Comelec simultaneously with the national elections following the effectivity of this Code.
Saranggani was separated from South Cotabato in accordance with Republic Act No. 7228, An Act Creating The Province Of Sarangani (1992). It has a land area of 3,972 sq. km. (http://www.sarangani.gov.ph/seventowns.php).
Kalinga-Apayao was separated into the provinces of Kalinga and Apayao by virtue of Republic Act No. 7878, An Act Converting The Sub-Provinces Of Kalinga And Apayao Into Regular Provinces To Be Known As The Province Of Kalinga And The Province Of Apayao, Amending For The Purpose Republic Act No. 4695 (1995). Kalinga has a land area of 3,164.3 sq. km. (http://www.nscb.gov.ph/rucar/fnf_kalinga.htm) while Apayao has a land area of 4,120 sq. km. (http://www.nscb.gov.ph/rucar/fnf_apayao.htm)
Compostela Valley was separated from Davao by virtue of Republic Act No. 8470, An Act Creating The Province Of Compostela Valley From The Province Of Davao Del Norte, And For Other Purposes (1998), and has a land area of 4,667 sq. km. (http://www.nscb.gov.ph/ru11/prov_profile/comval.htm).
Zamboanga Sibugay was separated from Zamboanga del Sur by virtue of Republic Act No. 8973, An Act Creating The Province Of Zamboanga Sibugay From The Province Of Zamboanga Del Sur And For Other Purposes (2000). It has a land area of 3,362.22 sq. km. (http://www.zamboanga.com/zs/).
6 226 Phil. 624 (1986).
7 Tan v. Commission on Elections did not directly discuss the requirement of land area under Batas Pambansa Bilang 337, but rather, concerned the proper construction of the "unit or units affected" for a plebiscite. However, the Court did state that the "territory" in Section 197 of Batas Pambansa Bilang 337 was intended to apply to land area only.
8 Philippine International Trading Corporation v. Commission on Audit, G.R. No. 183517, June 22, 2010, citing Land Bank of the Philippines v. AMS Farming Corporation, G.R. No. 174971, October 15, 2008, 569 SCRA 154, 183, Mactan-Cebu International Airport Authority v. Urgello, G.R. No. 162288, April 4, 2007, 520 SCRA 515, 535, and Smart Communications, Inc. v. The City of Davao, G.R. No. 155491, September 16, 2008, 565 SCRA 237, 247-248.
9 United States v Acres of Land Situated in Grenada and Yalobusha Counties Mississippi Jg 1983 USCA5 583; 704 F.2d 800; 20 ERC 1025 (12 May 1983).
10 Act No. 1952, An Act to Provide for the Establishment of the Province of Batanes; to Amend Paragraph Seven of Section Sixty Eight of Act Numbered Eleven Hundred Eighty Nine in Certain Particulars; to Authorize the Approval of the Governor-General to extend the Time for the Payment without Penalty and Taxes and Licenses; to Amend Section Five of Act Numbered Fifteen Hundred and Eighty Two entitled the "Election Law" by Increasing the Number of Delegates to the Philippine Assembly to Eighty One, and for other Purposes (1909).
11 Republic Act No. 4669, An Act Separating the Subprovince of Camiguin from the Province of Misamis Oriental and Establishing it as an Independent Province (1966).
12 Republic Act No. 6398, An Act Separating the Subprovince of Siquijor from the Province of Oriental Negros and Establishing it as an Independent Province (1971).
13 Sec. 462 of the Local Government Code.
14 Id.
15 Act No. 2880, An Act Authorizing the Separation of the Subprovince of Marinduque from the Province of Tayabas and the Reestablishment of the Former Province of Marinduque, and for other Purposes (1920).
16 Bicameral Conference Committee on Local Government (Book III), March 13, 1991, pp. 18-28, in FN 14 of Justice Nachura's Reflections.
17 Enron Corp. v. Spring Independent School District, 922 S.W. 2d 931; Middleton v. Texas Power & Light Co. (1919), 249 U.S. 152, at 157.
18 Alonzo v. Intermediate Appellate Court, 234 Phil. 267, 272-273 (1987).CONCURRING OPINION
ABAD, J.:
I fully concur in the resolution that Justice Antonio Eduardo Nachura wrote for the majority. I would want, however, to reply briefly to the somewhat harsh criticism hurled against the Court in connection with its action.
The Court is accused of "flip-flopping" in this case as in the others before it, specifically the case of the sixteen municipalities that Congress converted into cities. Since the Court is a collegial body, the implication is that its members or the majority collectively flip-flopped in their decisions.
But, as I said in my concurring opinion in the Court's April 12, 2011 resolution in the League of Cities case,1 the charge is unfair, as it is baseless. The Court is not a living person whose decisions and actions are ruled by the whims of one mind. As a collegial body, the Court acts by consensus among its fifteen members.
In the League of Cities,2 neither all the Justices nor most of them did a somersault as implicitly suggested. Congress passed a number of laws converting sixteen municipalities into cities. The League of Cities assailed these laws as unconstitutional on the ground that the sixteen municipalities involved did not meet the P100 million minimum income requirement of the Local Government Code. For their part, the municipalities countered that their laws constituted valid legislative amendments of such requirement.
The Court originally voted in the case on November 18, 2008. A majority of six Justices voted to annul the laws, five members dissented, and four took no part (6-5-4). The lead of those who voted to annul the laws firmed up with an increase of 2 votes when the Court took up the motion for reconsideration of the sixteen municipalities on March 31, 2009. The vote was 7-5-2.
But when on April 28, 2009 the Court acted on the sixteen municipalities' second motion for reconsideration, the vote resulted in a tie, 6-6-3. The Court was divided in its interpretation of this 6-6 result. One group argued that the failure of the minority to muster a majority vote had the effect of maintaining the Court's last ruling. Some argued, however, that since the Constitution required a majority vote for declaring laws passed by Congress unconstitutional, the new voting restored the constitutionality of the subject laws. When a re-voting took place on December 21, 2009 to clear up the issue, the result shifted in favor of upholding the constitutionality of the laws of the sixteen municipalities, 6-4-3 (2 vacancies), with the new majority voting to uphold the constitutionality of the laws that converted the sixteen municipalities into cities.
But when the Court voted on the motion for reconsideration of the losing League of Cities on August 24, 2010, the majority shifted anew on a vote of 7-6-2. The sixteen municipalities filed a motion for reconsideration of the new decision and voting took place on February 15, 2011, resulting in a vote of 7-6-2 in favor of again upholding the constitutionality of the laws of the sixteen municipalities.
To repeat what I said in my concurring opinion in the League of Cities,3 those who say that the Court, acting through its members, flipped-flopped in the League of Cities case should consider the following:
One. The Justices did not on each occasion simply decide to change their minds. There were pending motions for reconsideration in the case and the Justices had a duty to vote on them on the dates the matters came up for decision.
The Court is no orchestra with its members playing one tune under the baton of a maestro. They bring with them a diversity of views, which is what the Constitution prizes, for it is this diversity that filters out blind or dictated conformity.
Two. Of twenty-three Justices who voted in the case at any of its various stages, twenty stood by their original positions. They never reconsidered their views. Only three did so and not on the same occasion, showing no wholesale change of votes at any time.
Three. To flip-flop means to vote for one proposition at first (take a stand), shift to the opposite proposition upon the second vote (flip), and revert to his first position upon the third (flop). Not one of the twenty-three Justices flipped-flopped.
Four. The three Justices who changed their votes did not do so in one direction. Justice Velasco changed his vote from a vote to annul to a vote to uphold; Justice Villarama from a vote to uphold to a vote to annul; and Justice Mendoza from a vote to annul to a vote to uphold. None of them flipped-flopped since the three never changed their votes afterwards.
Notably, no one can dispute the right of a judge, acting on a motion for reconsideration that the losing party files, to change his mind regarding the case. The rules are cognizant of the fact that human judges could err and that it would merely be fair and right for them to correct their perceived errors upon a motion for reconsideration. Even God, who had decided to destroy the Israelites for worshipping a golden calf, reconsidered after Moses stood in the gap for them.4
Five. Evidently, the voting in the League of Cities is not a case of massive flip-flopping by the Justices of the Court. Rather, it is a case of tiny shifts in the votes, occasioned by the consistently slender margin that one view held over the other. This reflected the nearly even soundness of the opposing advocacies of the contending sides.
Six. It did not help that in one year alone in 2009, seven Justices retired and were replaced by an equal number. It is such that the resulting change in the combinations of minds produced multiple shifts in the outcomes of the voting. No law or rule requires succeeding Justices to adopt the views of their predecessors. Indeed, preordained conformity is anathema to a democratic system.
In this Dinagat Islands case the vote changed when, acting on the intervention of a third party with genuine interest in the outcome of the case, the majority in the Court was persuaded to change its mind and uphold the act of Congress in creating the province. The previous voting was too close and it took the vote of just two Justices, changing their previous positions, to ensnare the victory from those who oppose the conversion of the Dinagat Islands into a province.
Neither the Court nor its Justices flip-flopped in this case. They did not take one position, later moved to the opposite position, and then reverted to the first. They merely exercised their right to reconsider an erroneous ruling.
The charge of flip-flopping is unfair.
Endnotes:
1 G.R, 176951, League of Cities, et al., vs. Commission on Elections, et al., April 12, 2011,
2 Supra.
3 Supra.
4 Exodus 32:7-14.
DISSENTING OPINION
CARPIO, J.:
I join Justice Diosdado M. Peralta and Justice Arturo D. Brion in their dissents. I file this separate dissenting opinion because the majority's ruling today, legitimizing the creation of a province in blatant violation of the Constitution and the Local Government Code, opens the floodgates to the proliferation of pygmy provinces and legislative districts, mangling sacred and fundamental principles governing our democratic way of life and exacerbating the scourge of local dynastic politics.
First. The Dinagat Islands province simply does not meet the criteria for the creation of a province. To implement the Constitution and for reasons of political practicality and economic viability, Section 461 of the Local Government Code bars the creation of provinces unless two of three minimum requirements are met. Section 461 of the Code provides:
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 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. (Emphasis supplied)
(a) Population - Fifty percent (50%)
(b) Land Area - Twenty-five percent (25%)
(c) Equal sharing - Twenty-five percent (25%).14
x x x x
Endnotes:
The Court's Decision of February 10, 2010 became final and executory, and Entry of Judgment was made by the Clerk of Court on May 18, 2010. At that point, the Decision of the Court should have been beyond recall.
1 Article 9, paragraph 2 ("[T]he land area requirement shall not apply where the proposed province is composed of one or more islands. x x x x")
2 G.R. No. 157013, 10 July 2003.
3 Section 442 (b) ("The territorial jurisdiction of a newly-created municipality shall be properly identified by metes and bounds. The requirement on land area shall not apply where the municipality proposed to be created is composed of one (1) or more islands. x x x x") (emphasis supplied).
4 Section 450 (b) ("The territorial jurisdiction of a newly-created city shall be properly identified by metes and bounds. The requirement on land area shall not apply where the city proposed to be created is composed of one (1) or more islands. x x x x") (emphasis supplied).
5 Which, under Section 442, must have minimum income, population and land area of P2.5 million (based on 1991 prices), 25,000 and 50 square kilometers (contiguous), respectively.
6 Section 5(3), Article VI of the 1987 Constitution provides: "Each legislative district shall comprise, as far as practicable, contiguous, compact, and adjacent territory. Each city with a population of at least two hundred fifty thousand, or each province, shall have at least one representative." (Emphasis supplied)
7 G.R. Nos. 177597 & 178628, 16 July 2008.
8 Id.
9 Id.
10 G.R. No. 189793, 617 SCRA 623 (2010).
11 Much like in the creation of legislative districts, the creation of local government units is done at the behest of legislators representing the relevant locality.
12 Section 26, Article II (emphasis supplied).
13 Paradigmatically shown in Aquino v. Commission on Elections, G.R. No. 189793, 617 SCRA 623 (2010).
14 Section 285.
15 In Tan v. Commission on Elections (No. L-73155, 11 July 1986, 142 SCRA 727), we rejected as baseless the claim that "territory" for purposes of the creation of a province, includes submerged land: "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." (Id. at 749; emphasis supplied).
16 Others island provinces would be Cebu, Bohol, Masbate, Catanduanes, Batanes, Basilan, Siquijor, and Camiguin.DISSENTING OPINION
BRION, J.:
I join the Dissents of Justices Antonio T. Carpio and Diosdado M. Peralta on the strict merits of the case - on why, based on the merits, Republic Act No. 9355 (RA 9355), otherwise known as An Act Creating the Province of Dinagat Islands, should be declared unconstitutional.
Additionally, I submit this Dissenting Opinion to express my objections in the strongest terms against the transgressions the Court committed in ruling on this case. The result, which is obvious to those who have been following the developments in this case and current Supreme Court rulings, is another flip-flop, made worse by the violations of the Court's own Internal Rules.1 This is not, of course, the Court's first flip-flop in recent memory; we did a couple of remarkable somersaults in our rulings in the case of League of Cities of the Philippines, et al. v. Comelec.2 This Dissent is written in the hope that the Court's violation of its own rules in this case will be the last, and that the Court will re-think its disposition of this case.
The Court rendered its Decision in this case on February 10, 2010, declaring RA 9355 unconstitutional. The Office of the Solicitor General (OSG), in behalf of the respondents, and respondent Governor Geraldine Ecleo-Villaroman filed their separate Motions for Reconsideration. These were their first motions for reconsideration.
On May 12, 2010, the Court denied these motions for lack of merit.
On May 26 and 28, 2010, respondent Governor Ecleo-Villaroman and the OSG respectively filed their 2nd Motions for Reconsideration. The Court simply noted these motions without action as they are prohibited pleadings under Section 2, Rule 52 of the Rules of Court. This procedural rule states:
Sec. 2. Second Motion for Reconsideration. - No second motion for reconsideration of a judgment or final resolution by the same party shall be entertained.
Sec. 3. Second Motion for Reconsideration. - The Court shall not entertain a second motion for reconsideration and any exception to this rule can only be granted in the higher interest of justice by the Court en banc upon a vote of at least two-thirds of its actual membership. There is reconsideration "in the higher interest of justice" when the assailed decision is not only legally erroneous, but is likewise patently unjust and potentially capable of causing unwarranted and irremediable injury or damage to the parties. A second motion for reconsideration can only be entertained before the ruling sought to be reconsidered becomes final by operation of law or by the Court's declaration. [Emphases supplied.]
"It is a hornbook rule that once a judgment has become final and executory, it may no longer be modified in any respect, even if the modification is meant to correct an erroneous conclusion of fact or law, and regardless of whether the modification is attempted to be made by the court rendering it or by the highest court of the land, as what remains to be done is the purely ministerial enforcement or execution of the judgment.
The doctrine of finality of judgment is grounded on fundamental considerations of public policy and sound practice that at the risk of occasional errors, the judgment of adjudicating bodies must become final and executory on some definite date fixed by law. [x x x ], the Supreme Court reiterated that the doctrine of immutability of judgment is adhered to by necessity notwithstanding occasional errors that may result thereby, since litigations must somehow come to an end for otherwise, it would "be even more intolerable than the wrong and injustice it is designed to protect."3 [Emphases supplied.]
Endnotes:
1 A.M. No. 10-4-20-SC, The Internal Rules of the Supreme Court, effective May 22, 2010.
2 G.R. Nos. 176951, 177499 & 178056, February 15, 2011.
3 Vios v. Pantangco, Jr., G.R. No. 163103, February 6, 2009, citing Coca-Cola Bottlers Philippines, Inc., Sales Force Union-PTGWO-BALAIS v. Coca-Cola Bottlers, Philippines, Inc., G.R. No. 155651, July 28, 2005, 464 SCRA 507, 513-514; Apo Fruits Corp. v. CA, G.R. No. 164195, December 4, 2009, citing Siy v. National Labor Relations Commission, G.R. No. 158971, August 25, 2005, 468 SCRA 154, 161-162, Kline v. Murray, 257 P. 465, 79 Mont. 530, Flores v. Court of Appeals, G.R. Nos. 97556 & 101152, July 29, 1996, Land Bank of the Philippines v. Arceo, G.R. No. 158270, July 21, 2008, 559 SCRA 85, Temic Semiconductors, Inc. Employees Union (TSIEU)-FFW v. Federation of Free Workers (FFW), G.R. No. 160993, May 20, 2008, 554 SCRA 122, 134; Session Delights Ice and Cream Fast Foods v. CA, G.R. No. 172149, February 8, 2010, citing Equitable Bank Corp. v. Sadac, G.R. No. 164772, June 8, 2006, 490 SCRA 380, 417; and Navarro v. Metropolitan Bank and Trust Company, G.R. No. 165697, August 4, 2009, citing Yau v. Silverio, Sr., G.R. No. 158848, February 4, 2008, 543 SCRA 520, Social Security System v. Isip, G.R. No. 165417, April 4, 2007, 520 SCRA 310, Lim v. Jabalde, G.R. No. 36786, April 17, 1989, 172 SCRA 211 (1983).
4 Section 2, Rule 19 of the 1997 Rules of Civil Procedure reads: Time to intervene. - The motion to intervene may be filed at any time before rendition of judgment by the trial court. A copy of the pleading-in-intervention shall be attached to the motion and served on the original parties.
DISSENTING OPINION
PERALTA, J.:
With due respect to the ponente, I register my dissent.
On February 10, 2010, the Court rendered a Decision in the instant case, the dispositive portion of which reads:
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.
SEC. 2. Second motion for reconsideration. -- No second motion for reconsideration of a judgment or final resolution by the same party shall be entertained.
x x x x
NOW, THEREFORE, with the current system configuration, and depending on whether the Decision of the Supreme Court in Navarro vs. Ermita is reconsidered or not, the Commission RESOLVED, as it hereby RESOLVES, to declare that:
- If the Decision is reversed, there will be no problem since the current system configuration is in line with the reconsidered Decision, meaning that the Province of Dinagat Islands and the Province of Surigao del Norte remain as two separate provinces;
- If the Decision becomes final and executory before the election, the Province of Dinagat Islands will revert to its previous status as part of the First Legislative District, Surigao del Norte.
x x x x- If the Decision becomes final and executory after the election, the Province of Dinagat Islands will revert to its previous status as part of the First Legislative District of Surigao del Norte.
Consistent with its plenary legislative power on the matter, Congress can, via either a consolidated set of laws or a much simpler, single-subject enactment, impose the said verifiable criteria of viability. These criteria need not be embodied in the local government code, albeit this code is the ideal repository to ensure, as much as possible, the element of uniformity. Congress can even, after making a codification, enact an amendatory law, adding to the existing layers of indicators earlier codified, just as efficaciously as it may reduce the same. In this case, the amendatory RA 9009 upped the already codified income requirement from PhP 20 million to PhP 100 million. At the end of the day, the passage of amendatory laws is no different from the enactment of laws, i.e., the cityhood laws specifically exempting a particular political subdivision from the criteria earlier mentioned. Congress, in enacting the exempting law/s, effectively decreased the already codified indicators. (Emphasis and [u]nderscoring supplied [by movants-intervenors].)
The legislative power has been described generally as the power to make, alter, and repeal laws. The authority to amend, change, or modify a law is thus part of such legislative power. It is the peculiar province of the legislature to prescribe general rules for the government of society. (Emphasis and [u]nderscoring supplied [by movants-intervenors].)
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.8
SEC. 6. Authority to Create Local Government Units. - A local government unit may be created, divided, merged, abolished, or its boundaries substantially altered either by law enacted by Congress in the case of a province, city, municipality, or any other political subdivision, or by ordinance passed by the sangguniang panlalawigan or sangguniang panlungsod concerned in the case of a barangay located within its territorial jurisdiction, subject to such limitations and requirements prescribed in this Code. (Emphasis and underscoring supplied.)
In League of Cities of the Philippines v. Commission on Elections, the Court held that the 16 cityhood laws, whose validity were questioned therein, were constitutional mainly because it found that the said cityhood laws merely carried out the intent of R.A. No. 9009, now Sec. 450 of the Local Government Code, to exempt therein respondents local government units (LGUs) from the P100 million income requirement since the said LGUs had pending cityhood bills long before the enactment of R.A. No. 9009. Each one of the 16 cityhood laws contained a provision exempting the municipality covered from the P100 million income requirement.
In this case, R.A. No. 9355 was declared unconstitutional because there was utter failure to comply with either the population or territorial requirement for the creation of a province under Section 461 of the Local Government Code.
The movants now argue that the correct interpretation of Sec. 461 of the Local Government Code is the one stated in the Dissenting Opinion of Associate Justice Antonio B. Nachura.
In his Dissenting Opinion, Justice Nachura agrees that R.A. No. 9355 failed to comply with the population requirement. However, he contends that the Province of Dinagat Islands did not fail to comply with the territorial requirement because it is composed of a group of islands; hence, it is exempt from compliance not only with the territorial contiguity requirement, but also with the 2,000-square- kilometer land area criterion in Sec. 461 of the Local Government Code, which is reproduced for easy reference: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.
Justice Nachura contends that the stipulation in paragraph (b) qualifies not merely the word "contiguous" in paragraph (a) (i) in the same provision, but rather the entirety of paragraph (a) (i) that reads:(i) a contiguous territory of at least two thousand (2,000) square kilometers, as certified by the Lands Management Bureau[.]
He argues that the whole paragraph on contiguity and land area in paragraph (a) (i) above is the one being referred to in the exemption from the territorial requirement in paragraph (b). Thus, he contends that 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 square kilometers. He asserts that this is because as the law is worded, contiguity and land area are not two distinct and separate requirements, but they qualify each other. An exemption from one of the two component requirements in paragraph (a) (i) allegedly necessitates an exemption from the other component requirement because the non-attendance of one results in the absence of a reason for the other component requirement to effect a qualification.
Similarly, the OSG contends that when paragraph (b) of Section 461 of the Local Government Code provides that the "territory need not be contiguous if it comprises two (2) or more islands," it necessarily dispenses the 2,000 sq. km. land area requirement, lest such exemption would not make sense. The OSG argues that in stating that a "territory need not be contiguous if it comprises two (2) or more islands," the law could not have meant to define the obvious. The land mass of two or more island will never be contiguous as it is covered by bodies of water. It is then but logical that the territory of a proposed province that is composed of one or more islands need not be contiguous or be at least 2,000 sq. km.
The Court is not persuaded.
Section 7, Chapter 2 (entitled General Powers and Attributes of Local Government Units) of the Local Government Code provides:SEC. 7. Creation and Conversion.--As a general rule, the creation of a local government unit or its conversion from one level to another level shall be based on verifiable indicatorsof 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).
It must be emphasized that Section 7 above, which provides for the general rule in the creation of a local government unit, states in paragraph ( c ) thereof that the land area must be contiguous and sufficient to provide for such basic services and facilities to meet the requirements of its populace.
Therefore, there are two requirements for land area: (1) The land area must be contiguous; and (2) the land area must be sufficient to provide for such basic services and facilities to meet the requirements of its populace. A sufficient land area in the creation of a province is at least 2,000 square kilometers, as provided by Section 461 of the Local Government Code.
Thus, Section 461 of the Local Government Code, providing the requisites for the creation of a province, specifically states the requirement of "a contiguous territory of at least two thousand (2,000) square kilometers."
Hence, contrary to the arguments of both movants, the requirement of a contiguous territory and the requirement of a land area of at least 2,000 square kilometers are distinct and separate requirements for land area under paragraph (a) (i) of Section 461 and Section 7 (c) of the Local Government Code.
However, paragraph (b) of Section 461 provides two instances of exemption from the requirement of territorial contiguity, thus:(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.
Contrary to the contention of the movants, the exemption above pertains only to the requirement of territorial contiguity. It clearly states that the requirement of territorial contiguity may be dispensed with in the case of a province comprising two or more islands or is separated by a chartered city or cities which do not contribute to the income of the province.
Nowhere in paragraph (b) is it expressly stated or may it be implied that when a province is composed of two or more islands or when the territory of a province is separated by a chartered city or cities, such province need not comply with the land area requirement of at least 2,000 square kilometers or the requirement in paragraph (a) (i) of Section 461of the Local Government Code.
Where the law is free from ambiguity, the court may not introduce exceptions or conditions where none is provided from considerations of convenience, public welfare, or for any laudable purpose; neither may it engraft into the law qualifications not contemplated, nor construe its provisions by taking into account questions of expediency, good faith, practical utility and other similar reasons so as to relax non-compliance therewith. Where the law speaks in clear and categorical language, there is no room for interpretation, but only for application.
3. The Administrator of the Fertilizer Pesticide Authority to include in its fertilizer pricing formula a capital contribution component of not less than P10 per bag. This capital contribution shall be collected until adequate capital is raised to make PPI viable. Such capital contribution shall be applied by FPA to all domestic sales of fertilizers in the Philippines. (Underscoring supplied)
The general rule is that an
unconstitutional law is void;
the doctrine of operative fact
is inapplicable.
PPI also argues that Fertiphil cannot seek a refund even if LOI No. 1465 is declared unconstitutional. It banks on the doctrine of operative fact, which provides that an unconstitutional law has an effect before being declared unconstitutional. PPI wants to retain the levies paid under LOI No. 1465 even if it is subsequently declared to be unconstitutional.
We cannot agree. It is settled that no question, issue or argument will be entertained on appeal, unless it has been raised in the court a quo. PPI did not raise the applicability of the doctrine of operative fact with the RTC and the CA. It cannot belatedly raise the issue with Us in order to extricate itself from the dire effects of an unconstitutional law.
At any rate, We find the doctrine inapplicable. The general rule is that an unconstitutional law is void. It produces no rights, imposes no duties and affords no protection. It has no legal effect. It is, in legal contemplation, inoperative as if it has not been passed. Being void, Fertiphil is not required to pay the levy. All levies paid should be refunded in accordance with the general civil code principle against unjust enrichment. The general rule is supported by Article 7 of the Civil Code, which provides:ART. 7. Laws are repealed only by subsequent ones, and their violation or non-observance shall not be excused by disuse or custom or practice to the contrary.
When the courts declare a law to be inconsistent with the Constitution, the former shall be void and the latter shall govern.
The doctrine of operative fact, as an exception to the general rule, only applies as a matter of equity and fair play. It nullifies the effects of an unconstitutional law by recognizing that the existence of a statute prior to a determination of unconstitutionality is an operative fact and may have consequences which cannot always be ignored. The past cannot always be erased by a new judicial declaration.
The doctrine is applicable when a declaration of unconstitutionality will impose an undue burden on those who have relied on the invalid law. Thus, it was applied to a criminal case when a declaration of unconstitutionality would put the accused in double jeopardy or would put in limbo the acts done by a municipality in reliance upon a law creating it.
Here, We do not find anything iniquitous in ordering PPI to refund the amounts paid by Fertiphil under LOI No. 1465. It unduly benefited from the levy. It was proven during the trial that the levies paid were remitted and deposited to its bank account. Quite the reverse, it would be inequitable and unjust not to order a refund. To do so would unjustly enrich PPI at the expense of Fertiphil. Article 22 of the Civil Code explicitly provides that "every person who, through an act of performance by another comes into possession of something at the expense of the latter without just or legal ground shall return the same to him." We cannot allow PPI to profit from an unconstitutional law. Justice and equity dictate that PPI must refund the amounts paid by Fertiphil.13
x x x The actual existence of a statute, prior to such a determination, is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects - with respect to particular relations, individual and corporate, and particular conduct, private and official. Questions of rights claimed to have become vested, of status, of prior determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination. These questions are among the most difficult of those which have engaged the attention of courts, state and federal, and it is manifest from numerous decisions that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified.17
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.18
x x x [T]he fact that such plebiscite had been held and a new province proclaimed and its officials appointed, the case before Us cannot truly be viewed as already moot and academic. Continuation of the existence of this newly proclaimed province which petitioners strongly profess to have been illegally born, deserves to be inquired into by this Tribunal so that, if indeed, illegality attaches to its creation, the commission of that error should not provide the very excuse for perpetuation of such wrong. For this court to yield to the respondents' urging that, as there has been fait accompli, then this Court should passively accept and accede to the prevailing situation is an unacceptable suggestion. Dismissal of the instant petition, as respondents so propose is a proposition fraught with mischief. Respondents' submission will create a dangerous precedent. Should this Court decline now to perform its duty of interpreting and indicating what the law is and should be, this might tempt again those who strut about in the corridors of power to recklessly and with ulterior motives, create, merge, divide and/or alter the boundaries of political subdivisions, either brazenly or stealthily, confident that this Court will abstain from entertaining future challenges to their acts if they manage to bring about a fait accompli.
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.
As the law-making branch of the government, indeed, it was the Legislature that imposed the criteria for the creation of a province as contained in Sec. 461 of the Local Government Code. No law has yet been passed amending Sec. 461 of the Local Government Code, so only the criteria stated therein are the bases for the creation of a province. The Constitution clearly mandates that the criteria in the Local Government Code must be followed in the creation of a province; hence, any derogation of or deviation from the criteria prescribed in the Local Government Code violates Section 10, Art. X of the Constitution.
SEC. 7. Creation and Conversion.--As a general rule, the creation of a local government unit or its conversion from one level to another level shall be based on verifiable indicators 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).23
Further, citing Galarosa v. Valencia, 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 June 30, 1992, the date when the term of office of the elective members of the Sangguniang Bayan of Sorsogon expired. Galarosa was the incumbent president of the Katipunang Bayan or Association of Barangay Councils (ABC) of the Municipality of Sorsogon, Province of Sorsogon; and was appointed as a member of the Sangguniang Bayan (SB) of Sorsogon pursuant to Executive Order No. 342 in relation to Section 146 of Batas Pambansa Blg. 337, the former Local Government Code.
Section 494 of the Local Government Code of 1991 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 Article 211(g) of the Rules and Regulations Implementing the Local Government Code of 1991. Moreover, there was no indication that Sections 491 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 Section 533 of the Local Government Code, expressly recognizes and grants the hold-over authority to the ABC presidents under Article 210, Rule XXIX. 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 Section 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. If the language of the law is plain, clear and unambiguous, courts simply apply the law according to its express terms. 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, 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 Section 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 Article 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 is, therefore, null and void.
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.
SEC. 5. Rules of Interpretation. - In the interpretation of the provisions of this Code, the following rules shall apply:x x x x
(c) The general welfare provisions in this Code shall be liberally interpreted to give more powers to local government units in accelerating economic development and upgrading the quality of life for the people in the community;
Sec. 16. General Welfare.--Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall ensure and support, among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific and technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants.
Sec. 2. Entry of judgments and final orders.--If no appeal or motion for new trial or reconsideration is filed within the time provided in these Rules, the judgment or final order shall forthwith be entered by the clerk in the book of entries of judgments. The date of finality of the judgment or final order shall be deemed to be the date of its entry. The record shall contain the dispositive part of the judgment or final order and shall be signed by the clerk, with a certificate that such judgment of final order has become final and executory.
SEC. 2. Second motion for reconsideration.--No second motion for reconsideration of a judgment or final resolution by the same party shall be entertained.
It is settled that when a final judgment is executory, it becomes immutable and unalterable. The judgment may no longer be modified in any respect, even if the modification is meant to correct what is perceived to be an erroneous conclusion of fact or law, and regardless of whether the modification is attempted to be made by the court rendering it or by the highest Court of the land. The doctrine is founded on considerations of public policy and sound practice that, at the risk of occasional errors, judgments must become final at some definite point in time.
The only recognized exceptions are the correction of clerical errors or the making of so-called nunc pro tunc entries in which case there is no prejudice to any party, and where the judgment is void.
Endnotes:
1 Rollo, p. 1202.
2 Based on the results of the May 10, 2010 elections, movant Congressman Francisco T. Matugas is the Congressman-Elect of the First Legislative District of Surigao del Norte; movants Hon. Sol T. Matugas and Hon. Arturo Carlos A. Egay, Jr. are the Governor-Elect and Vice-Governor-Elect, respectively, of the Province of Surigao del Norte; while movants Hon. Simeon Vicente G. Castrence, Hon. Mamerto D. Galanida, Hon. Margarito M. Longos, and Hon. Cesar M. Bagundol are the Board Members-Elect of the First Provincial District of Surigao del Norte.
3 Entitled IN THE MATTER OF THE EFFECT OF THE DECISION OF THE SUPREME COURT IN THE CASE OF "RODOLFO G. NAVARRO, ET. AL, vs. EXECUTIVE SECRETARY EDUARDO ERMITA representing the President of the Philippines, ET. AL" (G.R. No. 180050), DECLARING THE CREATION OF THE PROVINCE OF DINAGAT ISLANDS AS UNCONSTITUTIONAL THEREBY REVERTING SAID PROVINCE TO ITS PREVIOUS STATUS AS PART OF THE PROVINCE OF SURIGAO DEL NORTE.
4 Citing Heirs of Geronimo Restrivera v. De Guzman, G.R. No. 146540, July 14, 2004, 434 SCRA 456.
5 G.R. No. 166429, February 1, 2006, 481 SCRA 457.
6 G.R. Nos. 176951, 177499, 178056, December 21, 2009, 608 SCRA 636.
7 G.R. No. 130584, June 27, 2006, 493 SCRA 86, 97.
8 Emphasis supplied.
9 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. (Emphasis supplied.)
10 For comparison, Section 461 of the Local Government Code of 1991 and Article 9 of the Rules and Regulations Implementing the Local Government Code of 1991 are reproduced:
The Local Government Code
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.
Rules and Regulations Implementing the Local Government Code of 1991
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. (Emphasis supplied.)
11 Hijo Plantation, Inc. v. Central Bank, G.R. No. L-34526, August 9, 1988, 164 SCRA 192.
12 G.R. No. 166006, March 14, 2008, 548 SCRA 485.
13 Emphasis supplied.
14Tan v. Barrios, G.R. Nos. 85481-82, October 18, 1990, 190 SCRA 686.
15 No. L-28113, March 28, 1969.
16 308 U.S. 371, 374 (1940).
17Municipality of Malabang v. Benito, supra note 15, p. 540.
18 Emphasis supplied.
19 No. L-73155, July 11, 1986, 142 SCRA 727, 741-742.
20 G.R. No. 166429, February 1, 2006, 481 SCRA 457.
21 Section 459, The Local Government Code of 1991.
22 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.
23 Emphasis supplied.
24 G.R. No. 109455, November 11, 1993, 227 SCRA 728.
25Rollo, p. 1202.
26 Id. at 1202.
27 Florenz D. Regalado, Remedial Law Compendium, Vol. I, Eight Revised Edition, © 2002, p. 381.
28Id.
29G.R. No. 153923, October 2, 2009, 602 SCRA 40, 46-47.