Republic of the Philippines

Supreme Court

Manila

 

 

EN BANC

 

 

RODOLFO G. NAVARRO,  VICTOR F. BERNAL, and RENE O. MEDINA,

                                            Petitioners,

 

 

-         versus

 

 

EXECUTIVE SECRETARY EDUARDO ERMITA, representing the President of the Philippines; SENATE OF THE PHILIPPINES, represented by  the SENATE PRESIDENT; HOUSE OF REPRESENTATIVES, represented by the HOUSE SPEAKER; GOVERNOR ROBERT ACE S. BARBERS, representing the Mother Province of Surigao del Norte; GOVERNOR GERALDINE ECLEO VILLAROMAN, representing the new Province of Dinagat Islands,

                                          Respondents. 

G.R. No. 180050

   

Present:

 

Puno, C.J.,

CARPIO,

CORONA,

CARPIO MORALES,

velasco, jr.,

nachura,

LEONARDO-DE CASTRO,

BRION,

PERALTA,

BERSAMIN,

DEL CASTILLO,

ABAD,

VILLARAMA, JR.,

perez, and

MENDOZA, JJ.

 

Promulgated:

 

   May 12, 2010

x----------------------------------------------------------------------------------------x

 

 

RESOLUTION

 

 

PERALTA, J.:

 

 

Before us are two Motions for Reconsideration of the Decision dated February 10, 2010 − one filed by the Office of the Solicitor General (OSG) in behalf of public respondents, and the other filed by respondent Governor Geraldine Ecleo Villaroman, representing the Province of Dinagat Islands.  The dispositive portion of the Decision 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.

 

 

The arguments of the movants are similar. The grounds for reconsideration  of  Governor Villaroman can be subsumed under the grounds for reconsideration of the OSG, which are as follows:

 

 

                                                               I.

 The Province of Dinagat Islands was created in  accordance with the provisions of the 1987 Constitution and the Local Government Code of 1991. Article 9 of the Implementing  Rules and Regulations is merely interpretative of Section 461 of the Local Government Code.

 

                                       II.

The power to create a local government unit is vested with the Legislature.  The acts of the Legislature and Executive in enacting into law RA 9355 should be respected as petitioners failed to overcome the presumption of validity or constitutionality.

 

                                       III.

Recent and prevailing jurisprudence considers the operative fact doctrine as a reason for upholding the validity and constitutionality of laws involving the creation of a new local government unit as in the instant case.

 

 

As regards the first ground, the movants  reiterate the same arguments in their respective Comments that aside from the undisputed compliance with the income requirement, Republic Act (R.A.) No. 9355, creating the Province of  Dinagat Islands,  has also complied with the population and land area requirements.

 

 

The arguments are unmeritorious and have already been passed upon by the Court in its Decision, ruling that R.A. No. 9355 is unconstitutional, since it failed to comply with either the territorial or population requirement contained in Section 461 of R.A. No. 7160, otherwise known as the Local Government Code of 1991.

 

When the Dinagat Islands was proclaimed a new province on December 3,  2006, it had an official  population of  only 106,951 based on the  2000 Census of  Population conducted by the National Statistics Office (NSO), which population is short of the statutory requirement of 250,000 inhabitants.

 

Although the Provincial Government of Surigao del Norte conducted a special census of population in Dinagat Islands in 2003, which yielded a population count of 371,000, the result was not certified by the NSO as required by the Local Government Code.[1]  Moreover, respondents failed to prove that with the population count of 371,000, the population of the original unit (mother Province of Surigao del Norte) would not be reduced to

 

less than the minimum requirement prescribed by law at the time of the creation of the new province.[2]

 

Less than a year after the proclamation of the new province, the NSO conducted the 2007 Census of Population. The NSO certified that as of August 1, 2007,  Dinagat Islands had a total population of only 120,813,[3] which was  still below the  minimum requirement of 250,000 inhabitants.

 

Based on the foregoing, R.A. No. 9355 failed to comply with the population requirement of 250,000 inhabitants as certified by the NSO.

 

Moreover, the land area of the province failed to comply with the statutory requirement of 2,000 square kilometers. R.A. No. 9355 specifically states that the Province of Dinagat Islands contains an approximate land area of 802.12 square kilometers. This was not disputed by the respondent Governor of the Province of Dinagat Islands in her Comment.  She and the other respondents instead asserted that the province, which is composed of more than one island, is exempted from the  land area requirement  based on the provision in the Rules and Regulations Implementing the Local Government Code of 1991 (IRR), specifically paragraph 2 of Article 9  which states that “[t]he land area requirement shall not apply where the proposed province is composed of one (1) or more islands.”  The certificate of compliance issued by the Lands Management Bureau was also based on the exemption under paragraph 2, Article 9 of the IRR.

 

  However, the Court held that  paragraph 2 of Article 9 of the IRR  is null and void, because the exemption is not found in Section 461 of the Local Government Code.[4]  There is no dispute that in case of discrepancy between the basic law and the rules and regulations implementing the said law, the basic law prevails, because the rules and regulations cannot go beyond the terms and provisions of the basic law.[5] 

 

The movants now argue that the correct interpretation of Section 461 of the Local Government Code is the one stated in the Dissenting Opinion of  Associate Justice Antonio Eduardo 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  Section 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.[6]

 

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[.][7]

 

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 islands 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. kms.

 

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  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).[8]

 

           

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.[9]

 

 

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;[10]  neither may it engraft into the law qualifications not contemplated,[11] 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.[12]   Where the law speaks in clear and categorical language, there is no room for interpretation, but only for application.[13]

 

Moreover, the OSG contends that since the power to create a local government unit is vested with the Legislature, the acts of the Legislature and the Executive branch in enacting into law R.A. No. 9355 should be respected as petitioners failed to overcome the presumption of validity or constitutionality.

 

The contention lacks merit.

 

Section 10, Article X of the Constitution states: 

 

SEC. 10.  No province, city, municipality, or barangay may be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the criteria established in the local government code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected.”[14]

 

 

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 Section 461 of the Local Government Code.  No law has yet been passed amending Section 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, Article X of the Constitution.

 

 Contrary to the contention of the movants, the evidence on record proved that R.A. No. 9355 failed to comply with either the  population or territorial requirement  prescribed in Section 461 of the Local Government Code for the creation of the Province of Dinagat Islands; hence, the Court declared R.A. No. 9355  unconstitutional. 

 

In Fariñas v. The Executive Secretary,[15] the Court held:

 

Every statute is presumed valid. The presumption is that the legislature intended to enact a valid, sensible and just law and one which operates no further than may be necessary to effectuate the specific purpose of the law.

It is equally well-established, however, that the courts, as guardians of the Constitution, have the inherent authority to determine whether a statute enacted by the legislature transcends the limit imposed by the fundamental law. And where the acts of the other branches of government run afoul of the Constitution, it is the judiciary’s solemn and sacred duty to nullify the same.

 

Citing League of Cities of the Philippines v. Commission on Elections,[16] the movants further contend that under the operative fact doctrine, the constitutionality of R.A No. 9355, creating the Province of Dinagat Islands, should be upheld. 

 

The Court is not persuaded.

 

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 Section 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 Court, while respecting the doctrine of separation of powers, cannot renege on its duty to determine whether the other branches of the government have kept themselves within the limits of the Constitution, and determine whether illegality attached to the creation of the province in question.  To abandon this duty only because the Province of Dinagat Islands has began its existence is to consent to the passage of a law that is   violative of the provisions of the Constitution and the Local Government Code,  rendering the law and the province created  null and void.  The Court cannot tolerate such nullity to be in existence.  Where the acts of other branches of the government go beyond the limit imposed by the Constitution, it is the sacred duty of the judiciary to nullify the same.[17]         

 

  Tan v. Comelec[18]  held:

 

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.

 

 

WHEREFORE, in view of the foregoing, the Motions for Reconsideration of the Decision dated February 10, 2010 are hereby DENIED for lack of merit.

 

SO ORDERED.

 

 

 

DIOSDADO M. PERALTA

                                                                             Associate Justice                     

WE CONCUR:

 

 

 

REYNATO S. PUNO

Chief Justice

 

 

 

ANTONIO T. CARPIO

Associate Justice

 

 

 

 

RENATO C. CORONA

Associate Justice

 

 

 

 

 

 

 

CONCHITA CARPIO MORALES

Associate Justice

 

 

 

 

 

PRESBITERO J. VELASCO, JR.

Associate Justice

 

 

 

 

ANTONIO EDUARDO B. NACHURA

Associate Justice

 

 

 

 

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

 

 

 

 

ARTURO D. BRION

Associate Justice

 

 

 

 

LUCAS P. BERSAMIN

Associate Justice

 

 

 

 

MARIANO C. DEL CASTILLO

Associate Justice

 

 

 

 

ROBERTO A. ABAD

Associate Justice

 

 

 

 

MARTIN S. VILLARAMA, JR.

Associate Justice

 

 

 

 

JOSE PORTUGAL PEREZ

Associate Justice

 

 

 

 

 

JOSE CATRAL MENDOZA

Associate Justice

 

 

 

 

CERTIFICATION

 

 

          Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

 

 

 

 

                                                                   REYNATO S. PUNO

                                                                   Chief Justice



[1]               SEC. 7.  Creation and conversion.As a general rule, the creation of a local government unit or its conversion from one level to another shall be based on verifiable indicators of viability  and projected capacity to provide services, to wit:

(a) Income. – It  must be sufficient, based on acceptable   standards, to provide for all essential government facilities and services and special functions commensurate with  the  size of its population, as expected of the local government unit concerned;

(b) Population. – It shall be determined as  the total number of inhabitants within the territorial jurisdiction of the local government unit concerned; and

(c) Land area. – It must be contiguous, unless it comprises two (2) or more islands, or is separated by a local government unit independent of the others; properly identified by metes and bounds with technical descriptions and sufficient to provide for such basic services and facilities to meet the requirements of its populace.

 Compliance with the foregoing indicators shall be attested to by the Department of Finance (DOF), the National Statistics Office (NSO), and the Lands Management Bureau (LMB) of the Department of Environment and Natural Resources (DENR).            

 SEC. 461. Requisites for Creation. - (a) A province may be created if it has an average annual income, as certified by the Department of Finance, of not less than Twenty million pesos (P20,000,000.00) based on 1991 constant prices and either of the following requisites:

                (i)  a contiguous territory of at least two thousand (2,000) square kilometers, as certified by the Lands Management Bureau; or

                (ii) a population of not less than two hundred fifty thousand (250,000) inhabitants as certified by the National Statistics Office:

Provided, That, the creation thereof shall not reduce the land area, population, and income of the original unit or units at the time of said creation to less than the minimum requirements prescribed herein. (Emphasis supplied.)

[2]               Id.

[3]               Annex “AA,” rollo, p. 498.  (Emphasis supplied.)

[4]        For comparison, Sec. 461 of the Local Government Code of 1991 and Art. 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 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

 

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

 

[5]                Hijo Plantation, Inc. v. Central Bank, G.R. No. L-34526, August 9, 1988, 164 SCRA 192, 199.

[6]               Emphasis supplied.

[7]               Emphasis supplied.

[8]               Emphasis supplied.

[9]               Emphasis supplied.

[10]             University of the Philippines Board of Regents v. Auditor General, G.R. No. L-19617, October 31, 1969, 30 SCRA 5, 17.

[11]             Ramos v. Court of Appeals, G.R. No. L-53766, October 30, 1981, 108 SCRA 728.

[12]             Republic  v. Go. Ban Lee, 111 Phil. 805 (1961).

[13]             Cebu Portland Cement Company v. Municipality of Naga, Cebu, G.R. Nos. 24116-17, August 22, 1968, 24 SCRA 708, 712; Ruben E. Agpalo, Statutory Construction (1986), p. 47.

[14]             Emphasis supplied.

[15]             463 Phil. 179, 197 (2003).

[16]             G.R. Nos. 176951, 177499 & 178056, December 21, 2009.

[17]             Fariñas v. The Executive Secretary, supra note 15.

[18]             226 Phil. 624, 637-638 (1986).