BARA LIDASAN, petitioner, vs. COMMISSION ON ELECTIONS, respondent.1967 Oct 25G.R. No. L-2808

SANCHEZ, J.:The question initially presented to the Commission on Elections 1 is this: Is Republic Act 4790, which is entitled "An Act Creating the Municipality of Dianaton in the Province of Lanao del Sur," but which includes barrios located in another province - Cotabato - to be spared from attack planted upon the constitutional mandate that "No bill which may be enacted into law shall embrace more than one subject which shall be expressed in the title of the bill? " Comelec's answer is in the affirmative. Offshoot is the present original petition for certiorari and prohibition.On June 18, 1966, the Chief Executive signed into law House Bill 1247, known as Republic Act 4790, now in dispute. The body of the statute, reproduced in haec verba, reads:"SECTION 1. Barrios Togaig, Madalum, Bayanga, Langkong, Sarakan, Kat-bo, Digakapan, Magabo, Tabangao, Tiongko, Colodan, Kabamawakan, Kapatagan, Bongabong, Aipang, Dagowan, Bakikis, Bungabung, Losain, Matimos and Magolatung, in the Municipalities of Butig and Balabagan, Province of Lanao del Sur, are separated from said municipalities and constituted into a distinct and independent municipality of the same province to be known as the Municipality of Dianaton, Province of Lanao del Sur. The seat of government of the municipality shall be in Tagalog.SEC. 2. The first mayor, vice-mayor and councilors of the new municipality shall be elected in the nineteen hundred sixty-seven general elections for local officials.SEC. 3. This Act shall take effect upon its approval.It came to light later that barrios Togaig and Madalum just mentioned are within the municipality of Buldon, Province of Cotabato, and that Bayanga, Langkong, Sarakan, Kat-bo, Digakapan, Magabo, Tabangao, Tiongko, Colodan, and Kabamakawan are parts and parcel of another municipality, the municipality of Parang, also in the Province of Cotabato and not of Lanao del Sur.Prompted by the coming elections, Comelec adopted its resolution of August 15, 1967, the pertinent portions of which are:"For purposes of establishment of precincts, registration of voters and for other election purposes, the Commission RESOLVED that pursuant to R.A. 4790, the new municipality of Dianaton, Lanao del Sur shall comprise the barrios of Kapatagan, Bongabong, Aipang, Dagowan, Bakikis, Bungabung, Losain, Matimos and Magolatung situated in the municipality of Balabagan, Lanao del Sur, the barrios of Togaig and Madalum situated in the municipality of Buldon, Cotabato, the barrios of Bayanga, Langkong, Sarakan, Kat-bo, Digakapan, Magabo, Tabangao, Tiongko, Colodan and Kabamakawan situated in the municipality of Parang, also of Cotabato."Doubtless, as the statute stands, twelve barrios - in two municipalities in the province of Cotabato — are transferred to the province of Lanao del Sur. This brought about a change in the boundaries of the two provinces.Apprised of this development, on September 7, 1967, the Office of the President, through the Assistant Executive Secretary, recommended to Comelec that the operation of the statute be suspended until "clarified by correcting legislation."Comelec, by resolution of September 20, 1967, stood by its own interpretation, declared that the statute "should be implemented unless declared unconstitutional by the Supreme Court."This triggered the present original action for certiorari and prohibition by Bara Lidasan, a resident and taxpayer of the detached portion of Parang, Cotabato, and a qualified voter for the 1967 elections. He prays that Republic Act 4790 be declared unconstitutional; and that Comelec's resolutions of August 15, 1967 and September 20, 1967 implementing the same for electoral purposes, be nullified.1. Petitioner relies upon the constitutional requirement aforestated, that "[n]o bill which may be enacted into law shall embrace more than one subject which shall be expressed in the title of the bill. 2 It may be well to state, right at the outset, that the constitutional provision contains dual limitations upon legislative power. First. Congress is to refrain from conglomeration, under one statute, of heterogeneous subjects. Second. The title of the bill is to be couched in a language sufficient to notify the legislators and the public and those concerned of the import of the single subject thereof.Of relevance here is the second directive. The subject of the statute must be "expressed in the title" of the bill. This constitutional requirement "breathes the spirit of command." 3 Compliance is imperative, given the fact that the Constitution does not exact of Congress the obligation to read during its deliberations the entire text of the bill. In fact, in the case of of House Bill 1247, which became Republic Act 4790, only its title was read from its introduction to its final approval in the House of Representatives, 4 where the bill, being of local application, originated. 5 Of course, the Constitution does not require Congress to employ in the title of an enactment, language of such precision as to mirror, fully index or catalogue all the contents and the minute details therein. It suffices if the title should serve the purpose of the constitutional demand that it inform the legislators, the persons interested in the subject of the bill, and the public, of the nature, scope and consequences of the proposed law and its operation. And this, to lead them to inquire into the body of the bill, study and discuss the same, take appropriate action thereon, and, thus, prevent surprise or fraud upon the legislators. 6 In our task of ascertaining whether or not the title of a statute conforms with the constitutional requirement, the following, we believe, may be taken as guidelines:"The test of the sufficiency of a title is whether or not it is misleading; and, while technical accuracy is not essential, and the subject need not be stated in express terms where it is clearly inferable from the details set forth, a title which is so uncertain that the average person reading it would not be informed of the purpose of the enactment or put on inquiry as to its contents, or which is misleading, either in referring to or indicating one subject where another or different one is really embraced in the act, or in omitting any expression or indication of the real subject or scope of the act, is bad.xxx xxx xxxIn determining sufficiency of particular title its substance rather than its form should be considered, and the purpose of the constitutional requirement, of giving, notice to all persons interested, should be kept in mind by the court." 7 With the foregoing principles at hand, we take a hard look at the disputed statute. The title — "An Act Creating the Municipality of Dianaton, in the Province of Lanao del Sur" 8 — projects the impression that solely the province of Lanao del Sur is affected by the creation of Dianaton. Not the slightest intimation is there that communities in the adjacent province of Cotabato are incorporated in this new Lanao del Sur town. The phrase "in the Province of Lanao del Sur," read without subtlety or contortion, makes the title misleading, deceptive. For, the known fact is that the legislation has a two-pronged purpose combined in one statute: (1) it creates the municipality of Dianaton purportedly from twenty-one barrios in the towns of Butig and Balabagan, both in the province of Lanao del Sur; and (2) it also dismembers two municipalities in Cotabato, a province different from Lanao del Sur.The baneful effect of the defective title here presented is not so difficult to perceive. Such title did not inform the members of Congress as to the full impact of the law; it did not apprise the people in the towns of Buldon and Parang in Cotabato and in the province of Cotabato itself that part of their territory is being taken away from their towns and province and added to the adjacent Province of Lanao del Sur; it kept the public in the dark as to what towns and provinces were actually affected by the bill. These are the pressures which heavily weigh against the constitutionality of Republic Act 4790.Respondent's stance is that the change in boundaries of the two provinces resulting in "the substantial diminution of the territorial limits" of Cotabato province is "merely the incidental legal results of the definition of the boundary" of the municipality of Dianaton and that, therefore, reference to the fact that portions in Cotabato are taken away "need not be expressed in the title of the law " This posture — we must say — but emphasizes the error of constitutional dimensions in writing down the title of the bill. Transfer of a sizeable portion of territory from one province to another of necessity involves reduction of area, population and income of the first and the corresponding increase of those of the other. This is as important as the creation of a municipality. And yet, the title did not reflect this fact.Respondent asks us to read Felwa vs. Salas, L-26511, October 29, 1966, as controlling here. The Felwa case is not in focus. For there, the title of the Act (Republic Act 4695) reads: "An Act Creating the Provinces of Benguet, Mountain Province, Ifugao, and Kalinga-Apayao." That title was assailed as unconstitutional upon the averment that the provisions of the law

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(Section 8 thereof) in reference to the elective officials of the provinces thus created, were not set forth in the title of the bill. We there ruled that this pretense is devoid of merit "for, surely, an Act creating said provinces must be expected to provide for the officers who shall run the affairs thereof' — which is "manifestly germane to the subject" of the legislation, as set forth in its title. The statute now before us stands altogether on a different footing. The lumping together of barrios in adjacent but separate provinces under one statute is neither a natural nor logical consequence of the creation of the new municipality of Dianaton. A change of boundaries of the two provinces may be made without necessarily creating a new municipality and vice versa.As we canvass the authorities on this point, our attention is drawn to Hume vs. Village of Fruitport, 219 NW 648, 649. There, the statute in controversy bears the title "An Act to Incorporate the Village of Fruitport, in the County of Muskegon." The statute, however, in its Section 1 reads: "The people of the state of Michigan enact, that the following described territory in the counties of Muskegon and Ottawa, Michigan, to wit: . . . be, and the same is hereby constituted a village corporate, by the name of the Village of Fruitport." This statute was challenged as void by plaintiff, a resident of Ottawa county, in an action to restrain the Village from exercising jurisdiction and control, including taxing of his lands. Plaintiff based his claim on Section 20, Article IV of the Michigan State Constitution, which reads: "No law shall embrace more than one object, which shall be expressed in its title." The Circuit Court decree voided the statute and defendant appealed. The Supreme Court of Michigan voted to uphold the decree of nullity. The following, said in Hume, may well apply to this case:"It may be that the words, `An act to incorporate the village of Fruitport,' would have been a sufficient title, and that the words, `in the county of Muskegon,' were unnecessary; but we do not agree with appellant that the words last quoted may, for that reason, be disregarded as surplusage.. . . Under the guise of discarding surplusage, a court cannot reject a part of the title of an act for the purpose of saving the act. Schmalz vs. Wooly, 56 N.J. Eq. 649, 39 A. 539.A purpose of the provision of the Constitution is to `challenge the attention of those affected by the act to its provisions.' Savings Bank vs. State of Michigan, 228 Mich. 316, 200 NW 262.The title here is restrictive. It restricts the operation of the act to Muskegon county. The act goes beyond the restriction. As was said in Schmalz vs. Wooly, supra: `The title is erroneous in the worst degree, for it is misleading." 9 Similar statutes aimed at changing boundaries of political subdivisions, which legislative purpose is not expressed in the title, were likewise declared unconstitutional. 10 We rule that Republic Act 4790 is null and void.2. Suggestion was made that Republic Act 4790 may still be salvaged with reference to the nine barrios in the municipalities of Butig and Balabagan in Lanao del Sur, with the mere nullification of the portion thereof which took away the twelve barrios in the municipalities of Buldon and Parang in the other province of Cotabato. The reasoning advocated is that the limited title of the Act still covers those barrios actually in the province of Lanao del Sur.We are not unmindful of the rule, buttressed on reason and of long standing, that where a portion of a statute is rendered unconstitutional and the remainder valid, the parts will be separated, and the constitutional portion upheld. Black, however, gives the exception to this rule, thus:". . . But when the parts of the statute are so mutually dependent and connected, as conditions, considerations, inducements, or compensations for each other, as to warrant a belief that the legislature intended them as a whole, and that if all could not be carried into effect, the legislature would not pass the residue independently, then, if some parts are unconstitutional, all the provisions which are thus dependent, conditional, or connected, must fall with them." 11 In substantially similar language, the same exception is recognized in the jurisprudence of this Court, thus:"The general rule is that where part of the statute is void, as repugnant to the Organic Law, while another part is valid, the valid portion, if separable from the invalid, may stand and be enforced. But in order to do this, the valid portion must be so far independent of the invalid portion that it is fair to presume that the Legislature would have enacted it by itself if they had supposed that they could not constitutionally enact the other. . . . Enough must remain to make a complete, intelligible, and valid statute, which carries out the legislative intent. . . . The language used in the invalid part of the statute can have no legal force or efficacy for any purpose whatever, and what remains must express the legislative will independently of the void part, since the court has no power to legislate. . ." 12 Could we indulge in the assumption that Congress still intended, by the Act, to create the restricted area of nine barrios in the towns of Butig and Balabagan in Lanao del Sur into the town of Dianaton, if the twelve barrios in the towns of Buldon and Parang, Cotabato, were to be excluded therefrom? The answer must be in the negative.Municipal corporations perform twin functions. Firstly. They serve as an instrumentality of the State in carrying out the functions of government. Secondly. They act as an agency of the community in the administration of local affairs. It is in the latter character that they are a separate entity acting for their own purposes and not a subdivision of the State. 13 Consequently, several factors come to the fore in the consideration of whether a group of barrios is capable of maintaining itself as an independent municipality. Amongst these are population, territory, and income. It was apparently these same factors which induced the writing out of House Bill 1247 creating the town of Dianaton. Speaking of the original twenty-one barrios which comprise the new municipality, the explanatory note to House Bill 1247, now Republic Act 4790, reads:"The territory is now a progressive community; the aggregate population is large; and the collective income is sufficient to maintain in independent municipality.This bill, if enacted into law, will enable the inhabitants concerned to govern themselves and enjoy the blessings of municipal autonomy."When the foregoing bill was presented in Congress, unquestionably, the totality of the twenty-one barrios-not nine barrios-was in the mind of the proponent thereof. That this is so, is plainly evident by the fact that the bill itself, thereafter enacted into law, states that the seat of the government is in Togaig, which is a barrio in the municipality of Buldon in Cotabato. And then the reduced area poses a number of questions, thus: Could the observations as to progressive community, large aggregate population, collective income sufficient to maintain an independent municipality, still apply to a motely group of only nine barrios out of the twenty-one? Is it fair to assume that the inhabitants of the said remaining barrios would have agreed that they be formed into a municipality, what with the consequent duties and liabilities of an independent municipal corporation? Could they stand on their own feet with the income to be derived in their community? How about the peace and order, sanitation, and other corporate obligations? This Court may not supply the answer to any of these disturbing questions. And yet, to remain deaf to these problems, or to answer them in the negative and still cling to the rule on separability, we are afraid, is to impute to Congress an undeclared will. With the known premise that Dianaton was created upon the basic considerations of progressive community, large aggregate population and sufficient income, we may not now say that Congress intended to create Dianaton with only 9-of the original 21-barrios, with a seat of government still left to be conjectured. For, this unduly stretches judicial interpretation of congressional intent beyond credibility point. To do so, indeed, is to pass the line which circumscribes the judiciary and tread on legislative premises. Paying due respect to the traditional separation of powers, we may not now melt and recast Republic Act 4790 to read a Dianaton town of nine instead of the originally intended twenty-one barrios. Really, if these nine barrios are to constitute a town at all, it is the function of Congress, not of this Court, to spell out that congressional will.Republic Act 4790 is thus inseparable, and it is accordingly null and void in its totality. 14 3. There remains for consideration the issue raised by respondent, namely, that petitioner has no substantial legal interest adversely affected by the implementation of Republic Act 4790. Stated differently, respondent's pose is that petitioner is not the real party in interest.Here, the validity of a statute is challenged on the ground that it violates the constitutional requirement that the subject of the bill be expressed in its title. Capacity to sue, therefore, hinges on whether petitioner's substantial rights or interests are impaired by lack of notification in the title that the barrio in Parang, Cotabato, where he is residing has been transferred to a different provincial hegemony.The right of every citizen, taxpayer and voter of a community affected by legislation creating a town to ascertain that the law so created is not dismembering his place of residence "in accordance with the Constitution" is recognized in this jurisdiction. 15

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Petitioner is a qualified voter. He expects to vote in the 1967 elections. His right to vote in his own barrio before it was annexed to a new town is affected. He may not want, as is the case here, to vote in a town different from his actual residence. He may not desire to be considered a part of hitherto different communities which are formed into the new town; he may prefer to remain in the place where he is and as it was constituted, and continue to enjoy the rights and benefits he acquired therein. He may not even know the candidates of the new town; he may express a lack of desire to vote for anyone of them; he may feel that his vote should be cast for the officials in the town before dismemberment. Since by constitutional direction the purpose of a bill must be shown in its title for the benefit, amongst others, of the community affected thereby, 16 it stands to reason to say that when the constitutional right to vote on the part of any citizen of that community is affected, he may become a suitor to challenge the constitutionality of the Act as passed by Congress.For the reasons given, we vote to declare Republic Act 4790 null and void, and to prohibit respondent Commission from implementing the same for electoral purposes.No costs allowed. So ordered.

Separate OpinionsFERNANDO, J., dissenting:With regret and with due recognition of the merit of the opinion of the Court, I find myself unable to give my assent. Hence these few words to express my stand.Republic Act No. 4790 deals with one subject matter, the creation of the municipality of Dianaton in the province of Lanao del Sur. The title makes evident what is the subject matter of such an enactment. The mere fact that in the body of such statute barrios found in two other municipalities of another province were included does not of itself suffice for a finding of nullity by virtue of the constitutional provision invoked. At the most, the statute to be free from not insubstantial doubts about its validity must be construed as not including the barrios, located not in the municipalities of Butig and Balabagan, Lanao del Sur, but in Parang and Baldon, Cotabato. The constitutional requirement is that no bill which may be enacted into law shall embrace more than one subject which shall be expressed in the title of the bill. 1 This provision is similar to those found in the Constitution of many American States. It is aimed against the evils of the so-called omnibus bills, and log-rolling legislation, and against surreptitious or unconsidered enactments. 2 Where the subject of a bill is limited to a particular matter, the members of the legislature as well as the people should be informed of the subject of proposed legislative measures. This constitutional provision thus precludes the insertion of riders in legislation, a rider being a provision not germane to the subject matter of the bill.It is not to be narrowly construed though as to cripple or impede proper legislation. The construction must be reasonable and not technical. It is sufficient if the title be comprehensive enough reasonably to include the general object which the statute seeks to effect without expressing each and every end and means necessary for the accomplishment of that object. Mere details need not be set forth. The legislature is not required to make the title of the act a complete index of its contents. The constitutional provision is satisfied if all parts of an act which relates to its subject find expression in its title. 3 The first decision of this Court, after the establishment of the Commonwealth of the Philippines, in 1938, construing a provision of this nature, Government v. Hongkong & Shanghai Bank, 4 held that the inclusion of Section 11 of Act No. 4007, the Reorganization law, providing for the mode in which the total annual expenses of the Bureau of Banking may be reimbursed through assessment levied upon all banking institutions subject to inspection by the Bank Commissioner was not violative of such a requirement in the Jones Law, the previous organic act. Justice Laurel, however, vigorously dissented, his view being that while the main subject of the act was reorganization, the provision assailed did not deal with reorganization but with taxation. While the case of Government v. Hongkong & Shanghai Bank was decided by a bare majority of four justices against three, the present trend seems to be that the constitutional requirement is to be given the liberal test as indicated in the majority opinion penned by Justice Abad Santos, and not the strict test as desired by the minority headed by Justice Laurel.Such a trend has been reflected in subsequent decisions beginning with Sumulong v. Commission on Elections, 5 up to and including Felwa v. Salas, a 1966 decision, 6 the opinion coming from Chief Justice Concepcion.It is true of course that in Philconsa v. Gimenez, 7 one of the grounds on which the invalidity of Republic Act No. 3836 was predicated was the violation of the above constitutional provision. This Retirement Act for senators and representatives was entitled "AN ACT AMENDING SUBSECTION (c), SECTION TWELVE OF COMMONWEALTH ACT NUMBERED ONE HUNDRED EIGHT-SIX, AS AMENDED BY REPUBLIC ACT NUMBERED THIRTY HUNDRED NINETY-SIX." As we noted, the paragraph in Republic Act No. 3836 deemed objectionable "refers to members of Congress and to elective officers thereof who are not members of the Government Service Insurance System. To provide retirement benefits, therefore, for these officials, would relate to a subject matter which is not germane to Commonwealth Act No. 186. In other words, this portion of the amendment (re retirement benefits for Members of Congress and appointive officers, such as the Secretary and Sergeants-at-arms for each house) is not related in any manner to the subject of Commonwealth Act No. 186 establishing the Government Service Insurance System and which provides for both retirement and insurance benefits for its members." Nonetheless our opinion was careful to note that there was no abandonment of the principle of liberality. Thus: "We are not unmindful of the fact that there has been a general disposition in all courts to construe the constitutional provision with reference to the subject and title of the Act, liberally."It would follow therefore that the challenged legislation Republic Act No. 4790 is not susceptible to the indictment that the constitutional requirement as to legislation having only one subject which should be expressed in his title was not met. The subject was the creation of the municipality of Dianaton. That was embodied in the title.It is in the light of the aforementioned judicial decisions of this Court, some of the opinions coming from jurists illustrious for their mastery of constitutional law and their acknowledged erudition, that, with all due respect, I find the citation from Corpus Juris Secundum, unnecessary and far fro persuasive. The State decisions cited, I do not deem controlling, as the freedom of this Court to accept or reject doctrines therein announced cannot be doubted.Wherein does the weakness of the statute lie then? To repeat, several barrios of two municipalities outside Lanao del Sur were included in the municipality of Dianaton of that province. That itself would not have given rise to a constitutional question considering the broad, well-high-plenary powers possessed by Congress to alter provincial and municipal boundaries. What justified resort to this Court was the congressional failure to make explicit that such barrios in two municipalities located in Cotabato would thereafter form part of the newly created municipality of Dianaton, Lanao del Sur.To avoid any doubt as to that validity of such statue, it must be construed as to exclude from Dianaton all of such barrios mentioned in Republic Act No. 4790 found in municipalities outside Lanao del Sur. As thus interpreted, the statue can meet the test of the most rigid scrutiny. Nor is this to do violence to the legislative intent. What was created was a new municipality from barrios named as found in Lanao del Sur. This construction assures precisely that.This mode of interpreting Republic Act No. 4790 finds support in basic principles underlying precedents, which if not precisely controlling, have a persuasive ring. In Radiowealth v. Agregado, 8 certain provisions of the Administrative Code were interpreted and given a "construction which would be more in harmony with the tenets of the fundamental law." In Sanchez v. Lyon Construction, 9 this Court had a similar ruling: "Article 302 of the Code of Commerce must be applied in consonance with [the relevant] provisions of our Constitution." The above principle gained acceptance at a much earlier period in our constitutional history. Thus in a 1913 decision, In re Guariña: 10 "In construing a statue enacted by the Philippine Commission we deem it our duty not to give it a construction which would be repugnant to an Act of Congress, if the language of the statute is fairly susceptible of another construction touching the apparent intention of the legislator which would lead to the conclusion that the Commission intended to enact a law in violation of the Act of Congress. However specious the argument may be in favor of one of two possible constructions, it must be disregarded if on examination it is found to rest on the contention that the legislator designed an attempt to transcend the rightful limits of his authority, and that his apparent intention was to enact an invalid law."American Supreme Court decisions are equally explicit. The then Justice, later Chief Justice, Stone, construed statutes "with an eye to possible constitutional limitations so as to avoid doubts as to [their] validity." 11 From the pen of the articulate jurist, Frankfurter: 12 "Accordingly, the phrase "lobbying activities" in the resolution must be given the meaning that may fairly be attributed to it, having special regard for the principle of constitutional adjudication which makes it decisive in the

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choice of fair alternatives that one construction may raise serious constitutional questions avoided by another." His opinion in the Rumely case continues with the above pronouncement of Stone and two other former Chief Justices: "In the words of Mr. Chief Justice Taft, `(i)t is our duty in the interpretation of federal statutes to reach conclusion which will avoid serious doubt of their constitutionality', Richmond Screw Anchor Co. v. United States, 275 US 331, 346, 48 S. Ct. 194, 198, 72 L. ed. 303. . . . As phrased by Mr. Chief Justice Hughes, "if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statue is fairly possible by which the question may be avoided.' Crowell v. Benson, 285, 296, 76 L. ed. 598, and cases cited." the prevailing doctrine then as set forth by Justice Clark in a 1963 decision, 13 is that courts "have consistently sought an interpretation which supports the constitutionality of legislation." Phrased differently by Justice Douglas, the judiciary favors "that interpretation of legislation which gives it the greater change of surviving the test of constitutionality." 14 It would follow then that both Philippine and American decisions unite in the view that a legislative measure, in the language of Van Devanter "should not be given a construction which will imperil its validity where it is reasonably open to construction free from such peril." 15 Republic Act No. 4790 as above construed incurs no such risk and is free from the peril of nullity.So I would view the matter, with all due acknowledgment of the practical considerations clearly brought to light in the opinion of the Court.

SULTAN ALIMBUSAR P. LIMBONA, petitioner, vs. CONTE MANGELIN, SALIC ALI, SALINDATO ALI, PILIMPINAS CONDING, ACMAD TOMAWIS, GERRY TOMAWIS, JESUS ORTIZ, ANTONIO DELA FUENTE, DIEGO PALOMARES, JR., RAKIL DAGALANGIT, and BIMBO SINSUAT, respondents.1989 Feb 28, G.R. No. 80391

SARMIENTO, J.:

The acts of the Sangguniang Pampook of Region XII are assailed in this petition. The antecedent facts are as follows:

1. On September 24, 1986, petitioner Sultan Alimbusar Limbona was appointed as a member of the Sangguniang Pampook, Regional Autonomous Government, Region XII, representing Lanao del Sur. 2. On March 12, 1987 petitioner was elected Speaker of the Regional Legislative Assembly or Batasang Pampook of Central Mindanao (Assembly for brevity).

3. Said Assembly is composed of eighteen (18) members. Two of said members, respondents Acmad Tomawis and Rakil Dagalangit, filed on March 23, 1987 with the Commission on Elections their respective certificates of candidacy in the May 11, 1987 confessional elections for the district of Lanao del Sur but they later withdrew from the aforesaid election and thereafter resumed again their positions as members of the Assembly. 4. On October 21, 1987 Congressman Datu Guimid Matalam, Chairman of the Committee on Muslim Affairs of the House of Representatives, invited Mr. Xavier Razul, Pampook Speaker of Region XI, Zamboanga City and the petitioner in his capacity as Speaker of the Assembly, Region XII, in a letter which reads:

The Committee on Muslim Affairs will undertake consultations and dialogues with local government officials, civic, religious organizations and traditional leaders on the recent and present political developments and other issues affecting Regions IX and XII.

The result of the conference, consultations and dialogues would hopefully chart the autonomous governments of the two regions as envisioned and may prod the President to constitute immediately the Regional Consultative Commission as mandated by the Commission.

You are requested to invite some members of the Pampook Assembly of your respective assembly on November 1 to 15, 1987, with venue at the Congress of the Philippines.

Your presence, unstinted support and cooperation is (sic) indispensable.

5. Consistent with the said invitation, petitioner sent a telegram to Acting Secretary Johnny Alimbuyao of the Assembly to wire all Assemblymen that there shall be no session in November as "our presence in the house committee hearing of confess take (sic) precedence over any pending business in batasang pampook . . ."

6. In compliance with the aforesaid instruction of the petitioner, Acting Secretary Alimbuyao sent to the members of the Assembly the following telegram:

TRANSMITTING FOR YOUR INFORMATION AND GUIDANCE TELEGRAM RECEIVED FROM SPEAKER LIMBONA QUOTE CONGRESSMAN JIMMY MATALAM CHAIRMAN OF THE HOUSE COMMITTEE ON MUSLIM AFFAIRS REQUESTED ME TO ASSIST SAID COMMITTEE IN THE DISCUSSION OF THE PROPOSED AUTONOMY ORGANIC NOV. 1ST TO 15. HENCE WIRE ALL ASSEMBLYMEN THAT THERE SHALL BE NO SESSION IN NOVEMBER AS OUR PRESENCE IN THE HOUSE COMMITTEE HEARING OF CONGRESS TAKE PRECEDENCE OVER ANY PENDING BUSINESS IN BATASANG PAMPOOK OF MATALAM FOLLOWS UNQUOTE REGARDS.

7. On November 2, 1987, the Assembly held session in defiance of petitioner's advice, with the following assemblymen present:

1. Sali, Salic 2. Conding, Pilipinas (sic) 3. Dagalangit, Rakil 4. Dela Fuente, Antonio 5. Mangelen, Conte 6. Ortiz, Jesus 7. Palomares, Diego 8. Sinsuat, Bimbo 9. Tomawis, Acmad 10 Tomawis, Jerry

After declaring the presence of a quorum, the Speaker Pro-Tempore was authorized to preside in the session. On Motion to declare the seat of the Speaker vacant, all Assemblymen in attendance voted in the affirmative, hence, the chair declared said seat of the Speaker vacant.

8. On November 5, 1987, the session of the Assembly resumed with the following Assemblymen present:

1. Mangelen Conte----- Presiding Officer 2 Ali Salic 3. Ali Salindatu 4. Aratuc, Malik 5. Cajelo, Rene

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6. Conding, Pilipinas (sic) 7. Dagalangit, Rakil 8. Dela Fuente, Antonio 9. Ortiz, Jesus 10. Palamares, Diego 11. Quijano, Jesus 12. Sinsuat, Bimbo 13. Tomawis, Acmad 14. Tomawis, Jerry

An excerpt from the debates and proceeding of said session reads:

HON. DAGALANGIT: Mr. Speaker, Honorable Members of the House, with the presence of our colleagues who have come to attend the session today, I move to call the names of the new comers in order for them to cast their votes on the previous motion to declare the position of the Speaker vacant. But before doing so, I move also that the designation of the Speaker Pro Tempore as the Presiding Officer and Mr. Johnny Evangelista as Acting Secretary in the session last November 2, 1987 be reconfirmed in today's session.

HON. SALIC ALI: I second the motions.

PRESIDING OFFICER: Any comment or objections on the two motions presented? The chair hears none and the said motions are approved. . . .

Twelve (12) members voted in favor of the motion to declare the seat of the Speaker vacant; one abstained and none voted against. 1

Accordingly, the petitioner prays for judgment as follows:

WHEREFORE, petitioner respectfully prays that

(a) This Petition be given due course; (b) Pending hearing, a restraining order or writ of preliminary injunction be issued enjoining respondents from proceeding with their session to be held on November 5, 1987, and on any day thereafter; (c ) After hearing, judgment be rendered declaring the proceedings held by respondents of their session on November 2, 1987 as null and void; (d) Holding the election of petitioner as Speaker of said Legislative Assembly or Batasan Pampook, Region XII held on March 12, 1987 valid and subsisting, and(e) Making the injunction permanent.

Petitioner likewise prays for such other relief as may be just and equitable. 2

Pending further proceedings, this Court, on January 19, 1988, received a resolution filed by the Sangguniang Pampook "EXPELLING ALIMBUSAR P. LIMBONA FROM MEMBERSHIP OF THE SANGGUNIANG PAMPOOK, AUTONOMOUS REGION XII," 3 on the grounds, among other things, that the petitioner "had caused to be prepared and signed by him paying [sic] the salaries and emoluments of Odin Abdula, who was considered resigned after filing his Certificate of Candidacy for Congressmen for the First District of Maguindanao in the last May 11, elections . . . and nothing in the record of the Assembly will show that any request for reinstatement by Abdula was ever made . . ." 4 and that "such action of Mr. Limbona in paying Abdula his salaries and emoluments without authority from the Assembly . . . constituted a usurpation of the power of the Assembly," 5 that the petitioner "had recently caused withdrawal of so much amount of cash from the Assembly resulting to the non-payment of the salaries and emoluments of some Assembly [sic]," 6 and that he had "filed before the Supreme Court against some members of Assembly on question which should have been resolved within the confines of the Assembly," 7 for which the respondents now submit that the petition had become "moot and academic". 8

The first question, evidently, is whether or not the expulsion of the petitioner (pending litigation) has made the case moot and academic.

We do not agree that the case has been rendered moot and academic by reason simply of the expulsion resolution so issued. For, if the petitioner's expulsion was done purposely to make this petition moot and academic, and to preempt the Court, it will not make it academic.

On the ground of the immutable principle of due process alone, we hold that the expulsion in question is of no force and effect. In the first place, there is no showing that the Sanggunian had conducted an investigation, and whether or not the petitioner had been heard in his defense, assuming that there was an investigation, or otherwise given the opportunity to do so. On the other hand, what appears in the records is an admission by the Assembly (at least, the respondents) that "since November, 1987 up to this writing, the petitioner has not set foot at the Sangguniang Pampook." 9 To be sure, the private respondents aver that "[t]he Assemblymen, in a conciliatory gesture, wanted him to come to Cotabato City," 10 but that was "so that their differences could be threshed out and settled." 11 Certainly, that avowed wanting or desire to thresh out and settle, no matter how conciliatory it may be cannot be a substitute for the notice and hearing contemplated by law.

While we have held that due process, as the term is known in administrative law, does not absolutely require notice and that a party need only be given the opportunity to be heard, 12 it does not appear herein that the petitioner had, to begin with, been made aware that he had in fact stood charged of graft and corruption before his colleagues. It cannot be said therefore that he was accorded any opportunity to rebut their accusations. As it stands, then, the charges now levelled amount to mere accusations that cannot warrant expulsion.

In the second place, the resolution appears strongly to be a bare act of vendetta by the other Assemblymen against the petitioner arising from what the former perceive to be abduracy on the part of the latter. Indeed, it (the resolution) speaks of "a case [having been filed] [by the petitioner] before the Supreme Court . . . on question which should have been resolved within the confines of the Assembly ---- an act which some members claimed unnecessarily and unduly assails their integrity and character as representative of the people," 13 an act that cannot possibly justify expulsion. Access to judicial remedies is guaranteed by the Constitution, 14 and, unless the recourse amounts to malicious prosecution, no one may be punished for seeking redress in the courts.

We therefore order reinstatement, with the caution that should the past acts of the petitioner indeed warrant his removal, the Assembly is enjoined, should it still be so minded, to commence proper proceedings therefor in line with the most elementary requirements of due process. And while it is within the discretion of the members of the Sanggunian to punish their erring colleagues, their acts are nonetheless subject to the moderating hand of this Court in the event that such discretion is exercised with grave abuse.

It is, to be sure, said that precisely because the Sangguniang Pampook(s) are "autonomous," the courts may not rightfully intervene in their affairs, much less strike down their acts. We come, therefore, to the second issue: Are the so-called

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autonomous governments of Mindanao, as they are now constituted, subject to the jurisdiction of the national courts? In other words, what is the extent of self-government given to the two autonomous governments of Region IX and XII?

The autonomous governments of Mindanao were organized in Regions IX and XII by Presidential Decree No. 1618 15 promulgated on July 25, 1979. Among other things, the Decree established "internal autonomy" 16 in the two regions "[w]ithin the framework of the national sovereignty and territorial integrity of the Republic of the Philippines and its Constitution," 17 "with legislative and executive machinery to exercise the powers and responsibilities"' 18 specified therein.

It requires the autonomous regional governments to "undertake all internal administrative matters for the respective regions," 19 except to "act on matters which are within the jurisdiction and competence of the National Government," 20 "which include, but are not limited to, the following:

(1) National defense and security; (2) Foreign relations; (3) Foreign trade; (4) Currency, monetary affairs, foreign exchange, banking and quasi-banking, and external borrowing, (5) Disposition, exploration, development, exploitation or utilization of all natural resources; (6) Air and sea transport; (7) Postal matters and telecommunications; (8) Customs and quarantine; (9) Immigration and deportation; (10) Citizenship and naturalization; (11) National economic, social and educational planning; and (12) General auditing." 21

In relation to the central government, it provides that "[t]he President shall have the power of general supervision and control over the Autonomous Regions . . .22

Now, autonomy is either decentralization of administration or decentralization of power. There is decentralization of administration when the central government delegates administrative powers to political subdivisions in order to broaden the base of government power and in the process to make local governments "more responsive and accountable," 23 and "ensure their fullest development as self-reliant communities and make them more effective partners in the pursuit of national development and social progress." 24 At the same time, it relieves the central government of the burden of managing local affairs and enables it to concentrate on national concerns. The President exercises "general supervision" 25 over them, but only to "ensure that local affairs are administered according to law." 26 He has no control over their acts in the sense that he can substitute their judgments with his own. 27

Decentralization of power, on the other hand, involves an abdication of political power in the favor of local governments units declared to be autonomous. In that case, the autonomous government is free to chart its own destiny and shape its future with minimum intervention from central authorities. According to a constitutional author, decentralization of power amounts to "self-immolation," since in that event, the autonomous government becomes accountable not to the central authorities but to its constituency. 28

But the question of whether or not the grant of autonomy to Muslim Mindanao under the 1987 Constitution involves, truly, an effort to decentralize power rather than mere administration is a question foreign to this petition, since what is involved herein is a local government unit constituted prior to the ratification of the present Constitution. Hence, the Court will not resolve that controversy now, in this case, since no controversy in fact exists. We will resolve it at the proper time and in the proper case.

Under the 1987 Constitution, local government units enjoy autonomy in these two senses, thus:

Section 1. The territorial and political subdivisions of the Republic of the Philippines are the provinces, cities, municipalities, and barangays. There shall be autonomous regions in Muslim Mindanao and the Cordilleras as hereinafter provided. 29

Sec. 2. The territorial and political subdivisions shall enjoy local autonomy. 30

xxx xxx xxx

Sec. 15. There shall be created autonomous regions in Muslim Mindanao and in the Cordilleras consisting of provinces, cities, municipalities, and geographical areas sharing common and distinctive historical and cultural heritage, economic and social structures, and other relevant characteristics within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines. 31

An autonomous government that enjoys autonomy of the latter category [CONST. (1987), art. X sec. 15.] is subject alone to the decree of the organic act creating it and accepted principles on the effects and limits of "autonomy." On the other hand, an autonomous government of the former class is, as we noted, under the supervision of the national government acting through the President (and the Department of Local Government). 32 If the Sangguniang Pampook (of Region XII), then, is autonomous in the latter sense, its acts are, debatably, beyond the domain of this Court in perhaps the same way that the internal acts, say, of the Congress of the Philippines are beyond our jurisdiction. But if it is autonomous in the former category only, it comes unarguably under our jurisdiction.

An examination of the very Presidential Decree creating the autonomous governments of Mindanao persuades us that they were never meant to exercise autonomy in the second sense, that is, in which the central government commits an act of self-immolation.

Presidential Decree No. 1618, in the first place, mandates that "[t]he President shall have the power of general supervision and control over Autonomous Regions." 33 In the second place, the Sangguniang Pampook, their legislative arm, is made to discharge chiefly administrative services, thus:

SEC. 7. Powers of the Sangguniang Pampook. The Sangguniang Pampook shall exercise local legislative powers over regional affairs within the framework of national development plans, policies and goals, in the following areas:

(1) Organization of regional administrative system; (2) Economic, social and cultural development of the Autonomous Region; (3) Agricultural, commercial and industrial programs for the Autonomous Region; (4) Infrastructure development for the Autonomous Region; (5) Urban and rural planning for the Autonomous Region; (6) Taxation and other revenue-raising measures as provided for in this Decree; (7) Maintenance, operation and administration of schools established by the Autonomous Region; (8) Establishment, operation and maintenance of health, welfare and other social services, programs and facilities;

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(9) Preservation and development of customs, traditions languages and culture indigenous to the Autonomous Region; and (10 ) Such other matters as may be authorized by law, including the enactment of such measures as may be necessary for the promotion of the general welfare of the people in the Autonomous Region.

The President shall exercise such powers as may be necessary to assure that enactment and acts of the Sangguniang Pampook and the Lupong Tagapagpaganap ng Pook are in compliance with this Decree, national legislation, policies, plans and programs.

The Sangguniang Pampook shall maintain liaison with the Batasang Pambansa. 34

Hence, we assume jurisdiction. And if we can make an inquiry in the validity of the expulsion in question, with more reason can we review the petitioner's removal as Speaker.

Briefly, the petitioner assails the legality of his ouster as Speaker on the grounds that: (1) the Sanggunian, in convening on November 2 and 5, 1987 (for the sole purpose of declaring the office of the Speaker vacant), did so in violation of the Rules of the Sangguniang Pampook since the Assembly was then on recess; and (2) assuming that it was valid, his ouster was ineffective nevertheless for lack of quorum.

Upon the facts presented, we hold that the November 2 and 5, 1987 sessions were invalid. It is true that under Section 31 of the Region XII Sanggunian Rules, "[s]essions shall not be suspended or adjourned except by direction of the Sangguniang Pampook," 35 but it provides likewise that "the Speaker may, on [sic] his discretion, declare a recess of "short intervals." 36 Of course, there is disagreement between the protagonists as to whether or not the recess called by the petitioner effective November 1 through 15, 1987 is the "recess of short intervals" referred to; the petitioner says that it is while the respondents insist that, to all intents and purposes, it was an adjournment and that "recess" as used by their Rules only refers to "a recess when arguments get heated up so that protagonists in a debate can talk things out informally and obviate dissension [sic] and disunity." 37 The Court agrees with the respondents on this regard, since clearly, the Rules speak of "short intervals." Secondly, the Court likewise agrees that the Speaker could not have validly called a recess since the Assembly had yet to convene on November 1, the date session opens under the same Rules. 38 Hence, there can be no recess to speak of that could possibly interrupt any session. But while this opinion is in accord with the respondents' own, we still invalidate the twin sessions in question, since at the time the petitioner called the "recess," it was not a settled matter whether or not he could do so. In the second place, the invitation tendered by the Committee on Muslim Affairs of the House of Representatives provided a plausible reason for the intermission sought. Thirdly, assuming that a valid recess could not be called, it does not appear that the respondents called his attention to this mistake. What appears is that instead, they opened the sessions themselves behind his back in an apparent act of mutiny. Under the circumstances, we find equity on his side. For this reason, we uphold the "recess" called on the ground of good faith.

It does not appear to us, moreover, that the petitioner had resorted to the aforesaid "recess" in order to forestall the Assembly from bringing about his ouster. This is not apparent from the pleadings before us. We are convinced that the invitation was what precipitated it.

In holding that the "recess" in question is valid, we are not to be taken as establishing a precedent, since, as we said, a recess can not be validly declared without a session having been first opened. In upholding the petitioner herein, we are no him a carte blanche to order recesses in the future in violation of the Rules, or otherwise to prevent the lawful meetings thereof.

Neither are we, by this disposition, discouraging the Sanggunian from reorganizing itself pursuant to its lawful prerogatives. Certainly, it can do so at the proper time. In the event that he petitioner should initiate obstructive moves, the Court is certain that it is armed with enough coercive remedies to thwart them. 39

In view hereof, we find no need in dwelling on the issue of quorum.

WHEREFORE, premises considered, the petition is GRANTED. The Sangguniang Pampook, Region XII, is ENJOINED to (1) REINSTATE the petitioner as Member, Sangguniang Pampook, Region XII; and (2) REINSTATE him as Speaker thereof. No costs.

DATU FIRDAUSI I.Y. ABBAS, DATU BLO UMPAR ADIONG, DATU MACALIMPOWAC DELANGALEN, CELSO PALMA, ALI MONTAHA BABAO, JULMUNIR JANNARAL, RASHID SABER, and DATU JAMAL ASHLEY ABBAS, representing the other taxpayers of Mindanao, petitioners, vs. COMMISSION ON ELECTIONS, and HONORABLE GUILLERMO C. CARAGUE, DEPARTMENT SECRETARY OF BUDGET AND MANAGEMENT, respondents.1989 Nov , G.R. No. 89651

CORTES, J.:The present controversy relates to the plebiscite in thirteen (13) provinces and nine (9) cities in Mindanao and Palawan, 1 scheduled for November 19, 1989, in implementation of Republic Act No. 6734, entitled "An Act Providing for an Organic Act for the Autonomous Region in Muslim Mindanao."

These consolidated petitions pray that the Court: (1) enjoin the Commission on Elections (COMELEC) from conducting the plebiscite and the Secretary of Budget and Management from releasing funds to the COMELEC for that purpose; and (2) declare R.A. No. 6734, or parts thereof, unconstitutional.

After a consolidated comment was filed by the Solicitor General for the respondents, which the Court considered as the answer, the case was deemed submitted for decision, the issues having been joined. Subsequently, petitioner Mama-o filed a "Manifestation with Motion for Leave to File Reply on Respondents' Comment and to Open Oral Arguments," which the Court noted.

The arguments against R.A. No. 6734 raised by petitioners may generally be categorized into either of the following:

(a) that R.A. 6734, or parts thereof, violates the Constitution, and (b) that certain provisions of R.A. No. 6734 conflict with the Tripoli Agreement.

The Tripoli Agreement, more specifically, the Agreement Between the Government of the Republic of the Philippines and Moro National Liberation Front with the Participation of the Quadripartite Ministerial Commission Members of the Islamic Conference and the Secretary General of the Organization of Islamic Conference" took effect on December 23, 1976. It provided for "[t]he establishment of Autonomy in the Southern Philippines within the realm of the sovereignty and territorial integrity of the Republic of the Philippines" and enumerated the thirteen (13) provinces comprising the "areas of autonomy." 2

In 1987, a new Constitution was ratified, which for the first time provided for regional autonomy. Article X, section 15 of the charter provides that "[t]here shall be created autonomous regions in Muslim Mindanao and in the Cordilleras consisting of provinces, cities, municipalities, and geographical areas sharing common and distinctive historical and cultural heritage,

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economic and social structures, and other relevant characteristics within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines."

To effectuate this mandate, the Constitution further provides:

Sec. 16. The President shall exercise general supervision over autonomous regions to ensure that the laws are faithfully executed.

Sec. 17. All powers, functions, and responsibilities not granted by this Constitution or by law to the autonomous regions shall be vested in the National Government.

Sec. 18. The Congress shall enact an organic act for each autonomous region with the assistance and participation of the regional consultative commission composed of representatives appointed by the President from a list of nominees from multisectoral bodies. The organic act shall define the basic structure of government for the region consisting of the executive department and legislative assembly, both of which shall be elective and representative of the constituent political units. The organic acts shall likewise provide for special courts with personal, family, and property law jurisdiction consistent with the provisions of this Constitution and national laws.

The creation of the autonomous region shall be effective when approved by majority of the votes cast by the constituent units in a plebiscite called for the purpose, provided that only the provinces, cities, and geographic areas voting favorably in such plebiscite shall be included in the autonomous region.

Sec. 19. The first Congress elected under this Constitution shall, within eighteen months from the time of organization of both Houses, pass the organic acts for the autonomous regions in Muslim Mindanao and the Cordilleras.

Sec. 20. Within its territorial jurisdiction and subject to the provisions of this Constitution and national laws, the organic act of autonomous regions shall provide for legislative powers over:

(1) Administrative organization; (2) Creation of sources of revenues; (3) Ancestral domain and natural resources; (4) Personal, family, and property relations; (5) Regional urban and rural planning development; (6) Economic, social and tourism development; (7) Educational policies; (8) Preservation and development of the cultural heritage; and (9) Such other matters as may be authorized by law for the promotion of the general welfare of the people of the region.

Sec. 21. The preservation of peace and order within the regions shall be the responsibility of the local police agencies which shall be organized, maintained, supervised, and utilized in accordance with applicable laws. The defense and security of the region shall be the responsibility of the National Government.

Pursuant to the constitutional mandate, R.A. No. 6734 was enacted and signed into law on August 1, 1989.

1. The Court shall dispose first of the second category of arguments raised by petitioners, i.e. that certain provisions of R.A. No. 6734 conflict with the provisions of the Tripoli Agreement.

Petitioners premise their arguments on the assumption that the Tripoli Agreement is part of the law of the land, being a binding international agreement. The Solicitor General asserts that the Tripoli Agreement is neither a binding treaty, not having been entered into by the Republic of the Philippines with a sovereign state and ratified according to the provisions of the 1973 or 1987 Constitutions, nor a binding international agreement.

We find it neither necessary nor determinative of the case to rule on the nature of the Tripoli Agreement and its binding effect on the Philippine Government whether under public international or internal Philippine law. In the first place, it is now the Constitution itself that provides for the creation of an autonomous region in Muslim Mindanao. The standard for any inquiry into the validity of R.A. No. 6734 would therefore be what is so provided in the Constitution. Thus, any conflict between the provisions of R.A. No. 6734 and the provisions of the Tripoli Agreement will not have the effect of enjoining the implementation of the Organic Act. Assuming for the sake of argument that the Tripoli Agreement is a binding treaty or international agreement, it would then constitute part of the law of the land. But as internal law it would not be superior to R.A. No. 6734, an enactment of the Congress of the Philippines, rather it would be in the same class as the latter [SALONGA, PUBLIC INTERNATIONAL LAW 320 (4th ed., 1974), citing Head Money Cases, 112 U.S. 580 (1884) and Foster v. Nelson, 2 Pet. 253 (1829)]. Thus, if at all, R.A. No. 6734 would be amendatory of the Tripoli Agreement, being a subsequent law. Only a determination by this Court that R.A. No. 6734 contravenes the Constitution would result in the granting of the reliefs sought. 3

2. The Court shall therefore only pass upon the constitutional questions which have been raised by petitioners.

Petitioner Abbas argues that R.A. No. 6734 unconditionally creates an autonomous region in Mindanao, contrary to the aforequoted provisions of the Constitution on the autonomous region which make the creation of such region dependent upon the outcome of the plebiscite.

In support of his argument, petitioner cites Article II, section 1(1) of R.A. No. 6734 which declares that "[t]here is hereby created the Autonomous Region in Muslim Mindanao, to be composed of provinces and cities voting favorably in the plebiscite called for the purpose, in accordance with Section 18, Article X of the Constitution." Petitioner contends that the tenor of the above provision makes the creation of an autonomous region absolute, such that even if only two provinces vote in favor of autonomy, an autonomous region would still be created composed of the two provinces where the favorable votes were obtained.

The matter of the creation of the autonomous region and its composition needs to be clarified.

First, the questioned provision itself in R.A. No. 6734 refers to Section 18, Article X of the Constitution which sets forth the conditions necessary for the creation of the autonomous region. The reference to the constitutional provision cannot be glossed over for it clearly indicates that the creation of the autonomous region shall take place only in accord with the constitutional requirements. Second, there is a specific provision in the Transitory Provisions (Article XIX) of the Organic Act, which incorporates substantially the same requirements embodied in the Constitution and fills in the details, thus:

SEC. 13. The creation of the Autonomous Region in Muslim Mindanao shall take effect when approved by a majority of the votes cast by the constituent units provided in paragraph (2) of Sec. 1 of Article II of this Act in a plebiscite which shall be held not earlier than ninety (90) days or later than one hundred twenty (120) days after the approval of this Act: Provided, That only the provinces and cities voting favorably in such plebiscite shall be included in the Autonomous Region in Muslim Mindanao. The provinces and cities which in the plebiscite do not vote for inclusion in the Autonomous Region shall remain

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in the existing administrative regions: Provided, however, That the President may, by administrative determination, merge the existing regions.

Thus, under the Constitution and R.A. No. 6734, the creation of the autonomous region shall take effect only when approved by a majority of the votes cast by the constituent units in a plebiscite, and only those provinces and cities where a majority vote in favor of the Organic Act shall be included in the autonomous region. The provinces and cities wherein such a majority is not attained shall not be included in the autonomous region. It may be that even if an autonomous region is created, not all of the thirteen (13) provinces and nine (9) cities mentioned in Article II, section 1(2) of R.A. No. 6734 shall be included therein. The single plebiscite contemplated by the Constitution and R.A. No. 6734 will therefore be determinative of (1) whether there shall be an autonomous region in Muslim Mindanao and (2) which provinces and cities, among those enumerated in R.A. No. 6734, shall comprise it. [See III RECORD OF THE CONSTITUTIONAL COMMISSION 487-492 (1986)].

As provided in the Constitution, the creation of the autonomous region in Muslim Mindanao is made effective upon the approval "by majority of the votes cast by the constituent units in a plebiscite called for the purpose" [Art. X, sec. 18]. The question has been raised as to what this majority means. Does it refer to a majority of the total votes cast in the plebiscite in all the constituent units, or a majority in each of the constituent units, or both?

We need not go beyond the Constitution to resolve this question.

If the framers of the Constitution intended to require approval by a majority of all the votes cast in the plebiscite they would have so indicated. Thus, in Article XVIII, section 27, it is provided that "[t]his Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite held for the purpose . . ." Comparing this with the provision on the creation of the autonomous region, which reads:

The creation of the autonomous region shall be effective when approved by majority of the votes cast by the constituent units in a plebiscite called for the purpose, provided that only provinces, cities and geographic areas voting, favorably in such plebiscite shall be included in the autonomous region. [Art. X, sec. 18, para. 2].

it will readily be seen that the creation of the autonomous region is made to depend, not on the total majority vote in the plebiscite, but on the will of the majority in each of the constituent units and the proviso underscores this. For if the intention of the framers of the Constitution was to get the majority of the totality of the votes cast, they could have simply adopted the same phraseology as that used for the ratification of the Constitution, i.e. "the creation of the autonomous region shall be effective when approved by a majority of the votes cast in a plebiscite called for the purpose."

It is thus clear that what is required by the Constitution is a simple majority of votes approving the Organic Act in individual constituent units and not a double majority of the votes in all constituent units put together, as well as in the individual constituent units.

More importantly, because of its categorical language, this is also the sense in which the vote requirement in the plebiscite provided under Article X, section 18 must have been understood by the people when they ratified the Constitution.

Invoking the earlier cited constitutional provisions, petitioner Mama-o, on the other hand, maintains that only those areas which, to his view, share common and distinctive historical and natural heritage, economic and social structures, and other relevant characteristics should be properly included within the coverage of the autonomous region. He insists that R.A. No. 6734 is unconstitutional because only the provinces of Basilan, Sulu, Tawi-Tawi, Lanao del Sur, Lanao del Norte and Maguindanao and the cities of Marawi and Cotabato, and not all of the thirteen (13) provinces and nine (9) cities included in the Organic Act, possess such concurrence in historical and cultural heritage and other relevant characteristics. By including areas which do not strictly share the same characteristics as the others, petitioner claims that Congress has expanded the scope of the autonomous region which the Constitution itself has prescribed to be limited.

Petitioner's argument is not tenable. The Constitution lays down the standards by which Congress shall determine which areas should constitute the autonomous region. Guided by these constitutional criteria, the ascertainment by Congress of the areas that share common attributes is within the exclusive realm of the legislature's discretion. Any review of this ascertainment would have to go into the wisdom of the law. This the Court cannot do without doing violence to the separation of governmental powers. [Angara v. Electoral Commission, 63 Phil. 139 (1936); Morfe v. Mutuc, G.R. No. L-20387, January 31, 1968, 22 SCRA 424].

After assailing the inclusion of non-Muslim areas in the Organic Act for lack of basis, petitioner Mama-o would then adopt the extreme view that other non-Muslim areas in Mindanao should likewise be covered. He argues that since the Organic Act covers several non-Muslim areas, its scope should be further broadened to include the rest of the non-Muslim areas in Mindanao in order for the others to similarly enjoy the benefits of autonomy. Petitioner maintains that the failure of R.A. No. 6734 to include the other non-Muslim areas denies said areas equal protection of the law, and therefore is violative of the Constitution.

Petitioner's contention runs counter to the very same constitutional provision he had earlier invoked. Any determination by Congress of what areas in Mindanao should comprise the autonomous region, taking into account shared historical and cultural heritage, economic and social structures, and other relevant characteristics, would necessarily carry with it the exclusion of other areas. As earlier stated, such determination by Congress of which areas should be covered by the organic act for the autonomous region constitutes a recognized legislative prerogative, whose wisdom may not be inquired into by this Court.

Moreover, equal protection permits of reasonable classification [People v. Vera, 65 Phil. 56 (1936); Laurel v. Misa, 76 Phil. 372 (1946); J.M. Tuason and Co. v. Land Tenure Administration, G.R. No. L-21064, February 18, 1970, 31 SCRA 413]. In Dumlao v. Commission on Elections [G.R. No. 52245, January 22, 1980, 95 SCRA 392], the Court ruled that one class may be treated differently from another where the groupings are based on reasonable and real distinctions. The guarantee of equal protection is thus not infringed in this case, the classification having been made by Congress on the basis of substantial distinctions as set forth by the Constitution itself.

Both petitions also question the validity of R.A. No. 6734 on the ground that it violates the constitutional guarantee on free exercise of religion [Art. III, sec. 5]. The objection centers on a provision in the Organic Act which mandates that should there be any conflict between the Muslim Code [P.D. No. 1083] and the Tribal Code (still to be enacted) on the one hand, and the national law on the other hand, the Shari'ah courts created under the same Act should apply national law. Petitioners maintain that the Islamic Law (Shari'ah) is derived from the Koran, which makes it part of divine law. Thus it may not be subjected to any "man-made" national law. Petitioner Abbas supports this objection by enumerating possible instances of conflict between provisions of the Muslim Code and national law, wherein an application of national law might be offensive to a Muslim's religious convictions.

As enshrined in the Constitution, judicial power includes the duty to settle actual controversies involving rights which are legally demandable and enforceable [Art. VIII, Sec. 1]. As a condition precedent for the power to be exercised, an actual controversy between litigants must first exist [Angara v. Electoral Commission, supra; Tan v. Macapagal, G.R. No. L-34161, February 29, 1972, 43 SCRA 677]. In the present case, no actual controversy between real litigants exists. There are no

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conflicting claims involving the application of national law resulting in an alleged violation of religious freedom. This being so, the Court in this case may not be called upon to resolve what is merely a perceived potential conflict between the provisions of the Muslim Code and national law.

Petitioners also impugn the constitutionality of Article XIX, section 13 of R.A. No. 6734 which, among others, states:

. . . Provided, That only the provinces and cities voting favorably in such plebiscite shall be included in the Autonomous Region in Muslim Mindanao. The provinces and cities which in the plebiscite do not vote for inclusion in the Autonomous Region shall remain in the existing administrative regions: Provided, however, that the President may, by administrative determination, merge the existing regions.

According to petitioners, said provision grants the President the power to merge regions, a power which is not conferred by the Constitution upon the President. That the President may choose to merge existing regions pursuant to the Organic Act is challenged as being in conflict with Article X, Section 10 of the Constitution which provides:

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.

It must be pointed out that what is referred to in R.A. No. 6734 is the merger of administrative regions, i.e. Regions I to XII and the National Capital Region, which are mere groupings of contiguous provinces for administrative purposes [Integrated Reorganization Plan (1972), which was made as part of the law of the land by Pres. Dec. No. 1, Pres. Sec. No. 742]. Administrative regions are not territorial and political subdivisions like provinces, cities, municipalities and barangays [see Art. X, sec. 1 of the Constitution]. While the power to merge administrative regions is not expressly provided for in the Constitution, it is a power which has traditionally been lodged with the President to facilitate the exercise of the power of general supervision over local governments [see Art. X, sec. 4 of the Constitution]. There is no conflict between the power of the President to merge administrative regions with the constitutional provision requiring a plebiscite in the merger of local government units because the requirement of a plebiscite in a merger expressly applies only to provinces, cities, municipalities or barangays, not to administrative regions.

Petitioners likewise question the validity of provisions in the Organic Act which create an Oversight Committee to supervise the transfer to the autonomous region of the powers, appropriations, and properties vested upon the regional government by the Organic Act [Art. XIX, Secs. 3 and 4]. Said provisions mandate that the transfer of certain national government offices and their properties to the regional government shall be made pursuant to a schedule prescribed by the Oversight Committee, and that such transfer should be accomplished within six (6) years from the organization of the regional government.

It is asserted by petitioners that such provisions are unconstitutional because while the Constitution states that the creation of the autonomous region shall take effect upon approval in a plebiscite, the requirement of organizing an Oversight Committee tasked with supervising the transfer of powers and properties to the regional government would in effect delay the creation of the autonomous region.

Under the Constitution, the creation of the autonomous region hinges only on the result of the plebiscite. If the Organic Act is approved by majority of the votes cast by constituent units in the scheduled plebiscite, the creation of the autonomous region immediately takes effect. The questioned provisions in R.A. No. 6734 requiring an Oversight Committee to supervise the transfer do not provide for a different date of effectivity. Much less would the organization of the Oversight Committee cause an impediment to the operation of the Organic Act, for such is evidently aimed at effecting a smooth transition period for the regional government. The constitutional objection on this point thus cannot be sustained as there is no basis therefor.

Every law has in its favor the presumption of constitutionality [Yu Cong Eng v. Trinidad, 47 Phil. 387 (1925); Salas v. Jarencio, G.R. No. L-29788, August 30, 1979, 46 SCRA 734; Morfe v. Mutuc, supra; Peralta v. COMELEC, G.R. No. L-47771, March 11, 1978, 82 SCRA 30]. Those who petition this Court to declare a law, or parts thereof, unconstitutional must clearly establish the basis for such a declaration. Otherwise, their petition must fail. Based on the grounds raised by petitioners to challenge the constitutionality of R.A. No. 6734, the Court finds that petitioners have failed to overcome the presumption. The dismissal of these two petitions is, therefore, inevitable.

WHEREFORE, the petitions are DISMISSED for lack of merit.

CORDILLERA BROAD COALITION, petitioner, vs. COMMISSION ON AUDIT, respondent.1990 Jan 29, G.R. No. 79956

CORTES, J:

In these consolidated petitions, the constitutionality of Executive Order No. 220, dated July 15, 1987, which created the Cordillera Administrative Region, is assailed on the primary ground that it pre-empts the enactment of an organic act by the Congress and the creation of the autonomous region in the Cordilleras conditional on the approval of the act through a plebiscite.

Relative to the creation of autonomous regions, the Constitution, in Article X, provides:

AUTONOMOUS REGIONS

Sec. 15. There shall be created autonomous regions in Muslim Mindanao and in the Cordilleras consisting of provinces, cities, municipalities, and geographical areas sharing common and distinctive historical and cultural heritage, economic and social structures, and other relevant characteristics within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines.

SEC. 16. The President shall exercise general supervision over autonomous regions to ensure that laws are faithfully executed.

Sec. 17. All powers, functions, and responsibilities not granted by this Constitution or by law to the autonomous regions shall be vested in the National Government.

Sec. 18. The Congress shall enact an organic act for each autonomous region with the assistance and participation of the regional consultative commission composed of representatives appointed by the President from a list of nominees from multisectoral bodies. The organic act shall define the basic structure of government for the region consisting of the executive department and legislative assembly, both of which shall be elective and representative of the constituent political units. The organic acts shall likewise provide for special courts with personal, family and property law jurisdiction consistent with the provisions of this Constitution and national laws.

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The creation of the autonomous region shall be effective when approved by majority of the votes cast by the constituent units in a plebiscite called for the purpose, provided that only provinces, cities, and geographic areas voting favorably in such plebiscite shall be included in the autonomous region.

Sec. 19. The first Congress elected under this Constitution shall, within eighteen months from the time of organization of both Houses, pass the organic acts for the autonomous regions in Muslim Mindanao and the Cordilleras.

Sec. 20. Within its territorial jurisdiction and subject to the provisions of this Constitution and national laws, the organic act of autonomous regions shall provide for legislative powers over:

(1) Administrative organization;(2) Creation of sources of revenues;(3) Ancestral domain and natural resources;(4) Personal, family and property relations;(5) Regional urban and rural planning development;(6) Economic, social and tourism development;(7) Educational policies;(8) Preservation and development of the cultural heritage; and(9) Such other matters as may be authorized by law for the promotion of the general welfare of the people of the region.

Sec. 21. The preservation of peace and order within the regions shall be the responsibility of the local police agencies which shall be organized, maintained, supervised, and utilized in accordance with applicable laws. The defense and security of the regions shall be the responsibility of the National Government.

A study of E.O. No. 220 would be incomplete without reference to its historical background.

In April 1986, just after the EDSA Revolution, Fr. Conrado M. Balweg, S.V.D., broke off on ideological grounds from the Communist Party of the Philippines (CPP) and its military arm - the New People's Army (NPA).

After President Aquino was installed into office by People Power, she advocated a policy of national reconciliation. She called on all revolutionary forces to a peace dialogue. The CPLA heeded this call of the President. After the preliminary negotiations, President Aquino and some members of her Cabinet flew to Mt. Data in the Mountain Province on September 13, 1986 and signed with Fr. Conrado M. Balweg (As Commander of the CPLA) and Ama Mario Yag-ao (as President of Cordillera Bodong Administration, the civil government of the CPLA) a ceasefire agreement that signified the cessation of hostilities (WHEREAS No. 7, E.O. 220).

The parties arrived at an agreement in principle: the Cordillera people shall not undertake their demands through armed and violent struggle but by peaceful means, such as political negotiations. The negotiations shall be a continuing process until the demands of the Cordillera people shall have been substantially granted.

On March 27, 1987, Ambassador Pelaez [Acting as Chief Negotiator of the government], in pursuance of the September 13, 1986 agreement, flew to the Mansion House, Baguio City, and signed with Fr. Balweg (as Chairman of the Cordillera panel) a joint agreement, paragraphs 2 and 3 of which state:

Par. 2 - Work together in drafting an Executive Order to create a preparatory body that could perform policy-making and administrative functions and undertake consultations and studies leading to a draft organic act for the Cordilleras.

Par. 3 - Have representatives from the Cordillera panel join the study group of the R.P. Panel in drafting the Executive Order.

Pursuant to the above joint agreement, E.O. 220 was drafted by a panel of the Philippine government and of the representatives of the Cordillera people.

On July 15, 1987, President Corazon C. Aquino signed the joint draft into law, known now as E.O. 220. [Rejoinder, G.R. No. 82217, pp. 2-3].

Executive Order No. 220, issued by the President in the exercise of her legislative powers under Art. XVIII, sec. 6 of the 1987 Constitution, created the Cordillera Administrative Region (CAR), which covers the provinces of Abra, Benguet, Ifugao, Kalinga-Apayao and Mountain Province and the City of Baguio [secs. 1 and 2]. It was created to accelerate economic and social growth in the region and to prepare for the establishment of the autonomous region in the Cordilleras [sec. 3]. Its main function is to coordinate the planning and implementation of programs and services in the region, particularly, to coordinate with the local government units as well as with the executive departments of the National Government in the supervision of field offices and in identifying, planning, monitoring, and accepting projects and activities in the region [sec. 5]. It shall also monitor the implementation of all ongoing national and local government projects in the region [sec. 20]. The CAR shall have a Cordillera Regional Assembly as a policy-formulating body and a Cordillera Executive Board as an implementing arm [secs. 7, 8 and 10]. The CAR and the Assembly and Executive Board shall exist until such time as the autonomous regional government is established and organized [sec. 17].

Explaining the rationale for the issuance of E.O. No. 220, its last "Whereas" clause provides:

WHEREAS, pending the convening of the first Congress and the enactment of the organic act for a Cordillera autonomous region, there is an urgent need, in the interest of national security and public order, for the President to reorganize immediately the existing administrative structure in the Cordilleras to suit it to the existing political realities therein and the Government's legitimate concerns in the areas, without attempting to pre-empt the constitutional duty of the first Congress to undertake the creation of an autonomous region on a permanent basis.

During the pendency of this case, Republic Act No. 6766 entitled "An Act Providing for an Organic Act for the Cordillera Autonomous Region," was enacted and signed into law. The Act recognizes the CAR and the offices and agencies created under E.O. No. 220 and its transitory nature is reinforced in Art. XXI of R.A. No. 6766, to wit:

SEC. 3. The Cordillera Executive Board, the Cordillera Regional Assembly, as well as all offices and agencies created under Executive Order No. 220 shall cease to exist immediately upon the ratification of this Organic Act.

All funds, properties and assets of the Cordillera Executive Board and the Cordillera Regional Assembly shall automatically be transferred to the Cordillera Autonomous Government.

IIt is well-settled in our jurisprudence that respect for the inherent and stated powers and prerogatives of the law-making body, as well as faithful adherence to the principle of separation of powers, require that its enactment be accorded the presumption of constitutionality. Thus, in any challenge to the constitutionality of a statute, the burden of clearly and unequivocally proving its unconstitutionality always rests upon the challenger. Conversely, failure to so prove will necessarily defeat the challenge.

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We shall be guided by these principles in considering these consolidated petitions.

In these cases, petitioners principally argue that by issuing E.O. No. 220 the President, in the exercise of her legislative powers prior to the convening of the first Congress under the 1987 Constitution, has virtually pre-empted Congress from its mandated task of enacting an organic act and created an autonomous region in the Cordilleras. We have carefully studied the Constitution and E.O. No. 220 and we have come to the conclusion that petitioners' assertions are unfounded. Events subsequent to the issuance of E.O. No. 220 also bear out this conclusion.

1. A reading of E.O. No. 220 will easily reveal that what it actually envisions is the consolidation and coordination of the delivery of services of line departments and agencies of the National Government in the areas covered by the administrative region as a step preparatory to the grant of autonomy to the Cordilleras. It does not create the autonomous region contemplated in the Constitution. It merely provides for transitory measures in anticipation of the enactment of an organic act and the creation of an autonomous region. In short, it prepares the ground for autonomy. This does not necessarily conflict with the provisions of the Constitution on autonomous regions, as we shall show later.

The Constitution outlines a complex procedure for the creation of an autonomous region in the Cordilleras. A regional consultative commission shall first be created. The President shall then appoint the members of a regional consultative commission from a list of nominees from multisectoral bodies. The commission shall assist the Congress in preparing the organic act for the autonomous region. The organic act shall be passed by the first Congress under the 1987 Constitution within eighteen months from the time of its organization and enacted into law. Thereafter there shall be held a plebiscite for the approval of the organic act [Art. X, sec. 18]. Only then, after its approval in the plebiscite, shall the autonomous region be created.

Undoubtedly, all of these will take time. The President, in 1987 still exercising legislative powers, as the first Congress had not yet convened, saw it fit to provide for some measures to address the urgent needs of the Cordilleras in the meantime that the organic act had not yet been passed and the autonomous region created. These measures we find in E.O. No. 220. The steps taken by the President are obviously perceived by petitioners, particularly petitioner Yaranon who views E.O. No. 220 as capitulation to the Cordillera People's Liberation Army (CPLA) of Balweg, as unsound, but the Court cannot inquire into the wisdom of the measures taken by the President. We can only inquire into whether or not the measures violate the Constitution. But as we have seen earlier, they do not.

2. Moreover, the transitory nature of the CAR does not necessarily mean that it is, as petitioner Cordillera Broad Coalition asserts, "the interim autonomous region in the Cordilleras" [Petition, G.R. No. 79956, p. 25].

The Constitution provides for a basic structure of government in the autonomous region composed of an elective executive and legislature and special courts with personal, family and property law jurisdiction [Art. X, sec. 18]. Using this as a guide, we find that E.O. No. 220 did not establish an autonomous regional government. It created a region, covering a specified area, for administrative purposes with the main objective of coordinating the planning and implementation of programs and services [secs. 2 and 5]. To determine policy, it created a representative assembly, to convene yearly only for a five-day regular session, tasked with, among others, identifying priority projects and development programs [sec. 9]. To serve as an implementing body, it created the Cordillera Executive Board composed of the Mayor of Baguio City, provincial governors and representatives of the Cordillera Bodong Administration, ethno-linguistic groups and non-governmental organizations as regular members and all regional directors of the line departments of the National Government as ex-officio members and headed by an Executive Director [secs. 10 and 11]. The bodies created by E.O. No. 220 do not supplant the existing local governmental structure, nor are they autonomous government agencies. They merely constitute the mechanism for an "umbrella" that brings together the existing local governments, the agencies of the National Government, the ethno-linguistic groups or tribes, and non-governmental organizations in a concerted effort to spur development in the Cordilleras.

The creation of the CAR for purposes of administrative coordination is underscored by the mandate of E.O. No. 220 for the President and appropriate national departments and agencies to make available sources of funds for priority development programs and projects recommended by the CAR [sec. 21] and the power given to the President to call upon the appropriate executive departments and agencies of the National Government to assist the CAR [sec. 24].

3. Subsequent to the issuance of E.O. No. 220, the Congress, after it was convened, enacted Republic Act No. 6658 which created the Cordillera Regional Consultative Commission. The President then appointed its members. The commission prepared a draft organic act which became the basis for the deliberations of the Senate and the House of Representatives. The result was Republic Act No. 6766, the organic act for the Cordillera autonomous region, which was signed into law on October 23, 1989. A plebiscite for the approval of the organic act, to be conducted shortly, shall complete the process outlined in the Constitution.

In the meantime, E.O. No. 220 had been in force and effect for more than two years and we find that, despite E.O. No. 220, the autonomous region in the Cordilleras is still to be created, showing the lack of basis of petitioners' assertion. Events have shown that petitioners' fear that E.O. No. 220 was a "shortcut" for the creation of the autonomous region in the Cordilleras was totally unfounded.

Clearly, petitioners' principal challenge has failed.

IIA collateral issue raised by petitioners is the nature of the CAR: whether or not it is a territorial and political subdivision.

The Constitution provides in Article X:

Section 1. The territorial and political subdivisions of the Republic of the Philippines are the provinces, cities, municipalities, and barangays. There shall be autonomous regions in Muslim Mindanao and the Cordilleras as hereinafter provided.

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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.

We have seen earlier that the CAR is not the autonomous region in the Cordilleras contemplated by the Constitution. Thus, we now address petitioners' assertion that E.O. No. 220 contravenes the Constitution by creating a new territorial and political subdivision.

After carefully considering the provisions of E.O. No. 220, we find that it did not create a new territorial and political subdivision or merge existing ones into a larger subdivision.

1. Firstly, the CAR is not a public corporation or a territorial and political subdivision. It does not have a separate juridical personality, unlike provinces, cities and municipalities. Neither is it vested with the powers that are normally granted to

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public corporations, e.g. the power to sue and be sued, the power to own and dispose of property, the power to create its own sources of revenue, etc. As stated earlier, the CAR was created primarily to coordinate the planning and implementation of programs and services in the covered areas.

The creation of administrative regions for the purpose of expediting the delivery of services is nothing new. The Integrated Reorganization Plan of 1972, which was made as part of the law of the land by virtue of Presidential Decree No. 1, established eleven (11) regions, later increased to twelve (12), with definite regional centers and required departments and agencies of the Executive Branch of the National Government to set up field offices therein. The functions of the regional offices to be established pursuant to the Reorganization Plan are: (1) to implement laws, policies, plans, programs, rules and regulations of the department or agency in the regional areas; (2) to provide economical, efficient and effective service to the people in the area; (3) to coordinate with regional offices of other departments, bureaus and agencies in the area; (4) to coordinate with local government units in the area; and (5) to perform such other functions as may be provided by law. [See Part II, chap. III, art. I, of the Reorganization Plan].

We can readily see that the CAR is in the same genre as the administrative regions created under the Reorganization Plan, albeit under E.O. No. 220 the operation of the CAR requires the participation not only of the line departments and agencies of the National Government but also the local governments, ethno-linguistic groups and non-governmental organizations in bringing about the desired objectives and the appropriation of funds solely for that purpose.

2. Then, considering the control and supervision exercised by the President over the CAR and the offices created under E.O. No. 220, and considering further the indispensable participation of the line departments of the National Government, the CAR may be considered more than anything else as a regional coordinating agency of the National Government, similar to the regional development councils which the President may create under the Constitution [Art. X, sec. 14]. These councils are "composed of local government officials, regional heads of departments and other government offices, and representatives from non-governmental organizations within the region for purposes of administrative decentralization to strengthen the autonomy of the units therein and to accelerate the economic and social growth and development of the units in the region." [Ibid.] In this wise, the CAR may be considered as a more sophisticated version of the regional development council.

IIIFinally, petitioners incidentally argue that the creation of the CAR contravened the constitutional guarantee of the local autonomy for the provinces (Abra, Benguet, Ifugao, Kalinga-Apayao and Mountain Province) and city (Baguio City) which compose the CAR.

We find first a need to clear up petitioners' apparent misconception of the concept of local autonomy.

It must be clarified that the constitutional guarantee of local autonomy in the Constitution [Art. X, sec. 2] refers to the administrative autonomy of local government units or, cast in more technical language, the decentralization of government authority [Villegas v. Subido, G.R. No. L-31004, January 8, 1971, 37 SCRA 1]. Local autonomy is not unique to the 1987 Constitution, it being guaranteed also under the 1973 Constitution [Art. II, sec. 10]. And while there was no express guarantee under the 1935 Constitution, the Congress enacted the Local Autonomy Act (R.A. No. 2264) and the Decentralization Act (R.A. No. 5185), which ushered the irreversible march towards further enlargement of local autonomy in the country [Villegas v. Subido, supra.]

On the other hand, the creation of autonomous regions in Muslim Mindanao and the Cordilleras, which is peculiar to the 1987 Constitution, contemplates the grant of political autonomy and not just administrative autonomy to these regions. Thus, the provision in the Constitution for an autonomous regional government with a basic structure consisting of an executive department and a legislative assembly and special courts with personal, family and property law jurisdiction in each of the autonomous regions [Art. X, sec. 18].

As we have said earlier, the CAR is a mere transitory coordinating agency that would prepare the stage for political autonomy for the Cordilleras. It fills in the resulting gap in the process of transforming a group of adjacent territorial and political subdivisions already enjoying local or administrative autonomy into an autonomous region vested with political autonomy.

Anent petitioners' objection, we note the obvious failure to show how the creation of the CAR has actually diminished the local autonomy of the covered provinces and city. It cannot be over-emphasized that pure speculation and a resort to probabilities are insufficient to cause the invalidation of E.O. No. 220.

WHEREFORE, the petitions are DISMISSED for lack of merit.

Cordillera Regional Assembly Member ALEXANDER P. ORDILLO, (Banaue), Ifugao Provincial Board Member CORAZON MONTINIG, (Mayoyao), Former Vice-Mayor MARTIN UDAN (Banaue), Municipal Councilors MARTIN GANO, (Lagawe), and TEODORO HEWE, (Hingyon), Barangay Councilman PEDRO W. DULAG (Lamut); Aguinaldo residents SANDY B. CHANGIWAN, and DONATO TIMAGO; Lamut resident REY ANTONIO; Kiangan residents ORLANDO PUGUON, and REYNAND DULDULAO; Lagawe residents TOMAS KIMAYONG, GREGORIO DANGO, GEORGE B. BAYWONG, and VICENTE LUNAG; Hingyon residents PABLO M. DULNUAN and CONSTANCIO GANO; Mayoyao residents PEDRO M. BAOANG, LEONARDO IGADNA, and MAXIMO IGADNA; and Banaue residents PUMA-A CULHI, LATAYON BUTTIG, MIGUEL PUMELBAN, ANDRES ORDILLO, FEDERICO MARIANO, SANDY BINOMNGA, GABRIEL LIMMANG, ROMEO TONGALI, RUBEN BAHATAN, MHOMDY GABRIEL, and NADRES GHAMANG, petitioners, vs. THE COMMISSION ON ELECTIONS; The Honorable FRANKLIN M. DRILON, Secretary of Justice; Hon. CATALINO MACARAIG, Executive Secretary; The Cabinet Officer for Regional Development; Hon. GUILLERMO CARAGUE, Secretary of Budget and Management; and Hon. ROSALINA S. CAJUCOM, OIC, National Treasurer, respondents.1990 Dec 4, G.R. No. 93054

GUTIERREZ, JR., J.:The question raised in this petition is whether or not the province of Ifugao, being the only province which voted favorably for the creation of the Cordillera Autonomous Region can, alone, legally and validly constitute such Region.

The antecedent facts that gave rise to this petition are as follows:

On January 30, 1990, the people of the provinces of Benguet, Mountain Province, Ifugao, Abra and Kalinga-Apayao and the city of Baguio cast their votes in a plebiscite held pursuant to Republic Act No. 6766 entitled "An Act Providing for an Organic Act for the Cordillera Autonomous Region."

The official Commission on Elections (COMELEC) results of the plebiscite showed that the creation of the Region was approved by a majority of 5,889 votes in only the Ifugao Province and was overwhelmingly rejected by 148,676 votes in the rest of the provinces and city above-mentioned.

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Consequently, the COMELEC, on February 14, 1990, issued Resolution No. 2259 stating that the Organic Act for the Region has been approved and/or ratified by majority of the votes cast only in the province of Ifugao. On the same date, the Secretary of Justice issued a memorandum for the President reiterating the COMELEC resolution and provided:

". . . [A]nd considering the proviso in Sec. 13(A) that only the provinces and city voting favorably shall be included m the CAR, the province of Ifugao being the only province which voted favorably then, alone, legally and validly constitutes the CAR." (Rollo, p. 7)

As a result of this, on March 8, 1990, Congress enacted Republic Act No. 6861 setting the elections in the Cordillera Autonomous Region of Ifugao on the first Monday of March 1991.

Even before the issuance of the COMELEC resolution, the Executive Secretary on February 5, 1990 issued a Memorandum granting authority to wind up the affairs of the Cordillera Executive Board and the Cordillera Regional Assembly created under Executive Order No. 220.

On March 9, 1990, the petitioner filed a petition with COMELEC to declare the non-ratification of the Organic Act for the Region. The COMELEC merely noted said petition.

On March 30, 1990, the President issued Administrative Order No. 160 declaring among others that the Cordillera Executive Board and Cordillera Regional Assembly and all the offices created under Executive Order No. 220 were abolished in view of the ratification of the Organic Act.

The petitioners maintain that there can be no valid Cordillera Autonomous Region in only one province as the Constitution and Republic Act No. 6766 require that the said Region be composed of more than one constituent unit.The petitioners, then, pray that the Court: (1) declare null and void COMELEC resolution No. 2259, the memorandum of the Secretary of Justice, the memorandum of the Executive Secretary, Administrative Order No. 160, and Republic Act No. 6861 and prohibit and restrain the respondents from implementing the same and spending public funds for the purpose and (2) declare Executive Order No. 220 constituting the Cordillera Executive Board and the Cordillera Regional Assembly and other offices to be still in force and effect until another organic law for the Autonomous Region shall have been enacted by Congress and the same is duly ratified by the voters in the constituent units. We treat the Comments of the respondents as an answer and decide the case.

This petition is meritorious.

The sole province of Ifugao cannot validly constitute the Cordillera Autonomous Region.

It is explicit in Article X, Section 15 of the 1987 Constitution that:

"Section 15. There shall be created autonomous regions in Muslim Mindanao and in the Cordillera consisting of provinces, cities, municipalities and geographical areas sharing common and distinctive historical and cultural heritage, economic and social structures, and other relevant characteristics within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines." (Emphasis Supplied)

The keywords provinces, cities, municipalities and geographical areas connote that "region" is to be made up of more than one constituent unit. The term "region" used in its ordinary sense means two or more provinces. This is supported by the fact that the thirteen (13) regions into which the Philippines is divided for administrative purposes are groupings of contiguous provinces.

(Integrated Reorganization Plan (1972), which was made as part of the law of the land by P.D. No. 1; P.D. No. 742) Ifugao is a province by itself. To become part of a region, it must join other provinces, cities, municipalities, and geographical areas. It joins other units because of their common and distinctive historical and cultural heritage, economic and social structures and other relevant characteristics. The Constitutional requirements are not present in this case.

The well-established rule in statutory construction that the language of the Constitution, as much as possible should be understood in the sense it has in common use and that the words used in constitutional provisions are to be given their ordinary meaning except where technical terms are employed, must then, be applied in this case. (See Baranda v. Gustilo, 165 SCRA 757, 770, [1988]; J.M. Tuason & Co., Inc. v. Land Tenure Administration, 31 SCRA 413, 422-423 [1970]).

Aside from the 1987 Constitution, a reading of the provisions of Republic Act No. 6766 strengthens the petitioner's position that the Region cannot be constituted from only one province.

Article III, Sections 1 and 2 of the Statute provide that the Cordillera Autonomous Region is to be administered by the Cordillera government consisting of the Regional Government and local government units. It further provides that:

"SECTION 2. The Regional Government shall exercise powers and functions necessary for the proper governance and development of all provinces, cities, municipalities, and barangay or ili within the Autonomous Region . . ."

From these sections, it can be gleaned that Congress never intended that a single province may constitute the autonomous region. Otherwise, we would be faced with the absurd situation of having two sets of officials, a set of provincial officials and another set of regional officials exercising their executive and legislative powers over exactly the same small area.

Article V, Sections 1 and 4 of Republic Act 6766 vest the legislative power in the Cordillera Assembly whose members shall be elected from regional assembly districts apportioned among provinces and the cities composing the Autonomous Region.

If we follow the respondent's position, the members of such Cordillera Assembly shall then be elected only from the province of Ifugao creating an awkward predicament of having two legislative bodies the Cordillera Assembly and the Sangguniang Panlalawigan exercising their legislative powers over the province of Ifugao. And since Ifugao is one of the smallest provinces in the Philippines, population-wise, it would have too many government officials for so few people.

Article XII, Section 10 of the law creates a Regional Planning and Development Board composed of the Cordillera Governor, all the provincial governors and city mayors or their representatives, two members of the Cordillera Assembly, and members representing the private sector. The Board has a counterpart in the provincial level called the Provincial Planning and Development Coordinator. The Board's functions (Article XII, Section 10, par. 2, Republic Act No. 6766) are almost similar to those of the Provincial Coordinator's (Title Four, Chapter 3, Article 10, Section 220 (4), Batas Pambansa Blg. 337 Local Government Code). If it takes only one person in the provincial level to perform such functions while on the other hand it takes an entire Board to perform almost the same tasks in the regional level, it could only mean that a larger area must be covered at the regional level. The respondent's theory of the Autonomous Region being made up of a single province must, therefore, fail.

Article XXI, Section 13 (B) (c) alloting the huge amount of Ten Million Pesos (P10,000,000.00) to the Regional Government for its initial organizational requirements can not be construed as funding only a lone and small province.

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These sections of Republic Act No. 6766 show that a one province Cordillera Autonomous Region was never contemplated by the law creating it.

The province of Ifugao makes up only 11% of the total population of the areas enumerated in Article I, Section 2 (b) of Republic Act No. 6766 which include Benguet, Mountain Province, Abra, Kalinga-Apayao and Baguio City. It has the second smallest number of inhabitants from among the provinces and city above mentioned. The Cordillera population is distributed in round figures as follows: Abra, 185,000; Benguet, 486,000; Ifugao, 149,000; Kalinga-Apayao, 214,000; Mountain Province, 116,000; and Baguio City, 183,000; Total population of these five provinces and one city; 1,332,000 according to the 1990 Census (Manila Standard, September 30, 1990, p. 14).

There are other provisions of Republic Act No. 6766 which are either violated or which cannot be complied with. Section 16 of Article V calls for a Regional Commission on Appointments with the Speaker as Chairman and are (6) members coming from different provinces and cities in the Region. Under the respondents' view, the Commission would have a Chairman and only one member. It would never have a quorum. Section 3 of Article VI calls for cabinet members, as far as practicable, to come from various provinces and cities of the Region. Section 1 of Article VII creates a system of tribal courts for the various indigenous cultural communities of the Region. Section 9 of Article XV requires the development of a common regional language based upon the various languages and dialects in the region which regional language in turn is expected to enrich the national language.

The entirety of Republic Act No. 6766 creating the Cordillera Autonomous Region is infused with provisions which rule against the sole province of Ifugao constituting the Region.

To contemplate the situation envisioned by the respondent would not only violate the letter and intent of the Constitution and Republic Act No. 6766 but would also be impractical and illogical.

Our decision in Abbas, et al. v. COMELEC, (G.R. No. 89651, November 10, 1969), is not applicable in the case at bar contrary to the view of the Secretary of Justice.

The Abbas case laid down the rate on the meaning of majority in the phrase "by majority of the votes cast by the constituent units called for the purpose" found in the Constitution, Article X, Section 18. It stated:

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". . . [I]t is thus clear that what is required by the Constitution is simple majority of votes approving the Organic Act in individual constituent units and not a double majority of the votes in all constituent units put together, as well as in the individual constituent units."

This was the pronouncement applied by the Secretary of Justice in arriving at his conclusion stated in his Memorandum for the President that:

xxx xxx xxx

". . . [i]t is believed that the creation of the Cordillera Autonomous Region (CAR) as mandated by R.A. No. 6766 became effective upon its approval by the majority of the votes cast in the province of Ifugao. And considering the proviso in Section 13 (a) that only the provinces and city voting favorably shall be included in the CAR, the province of Ifugao being the only province which voted favorably can, alone, legally and validly constitute the CAR." (Rollo. p. 40).

The plebiscites mandated by the Constitution and Republic Act No. 6766 for the Cordillera and Republic Act No. 6734 for the Autonomous Region in Muslim Mindanao determine (1) whether there shall be an autonomous region in the Cordillera and in Muslim Mindanao and (2) which provinces and cities, among those enumerated in the two Republic Acts, shall comprise said Autonomous Regions. (See III, Record of the Constitutional Commission, 487-492 [1986]).

The Abbas case established the rule to follow on which provinces and cities shall comprise the autonomous region in Muslim Mindanao which is, consequently, the same rule to follow with regard to the autonomous region in the Cordillera. However, there is nothing in the Abbas decision which deals with the issue on whether an autonomous region, in either Muslim Mindanao or Cordillera could exist despite the fact that only one province or one city is to constitute it.

Stated in another way, the issue in this case is whether the sole province of Ifugao can validly and legally constitute the Cordillera Autonomous Region. The issue is not whether the province of Ifugao is to be included in the Cordillera Autonomous Region. It is the first issue which the Court answers in the instant case.

WHEREFORE, the petition is hereby GRANTED. Resolution No. 2259 of the Commission on Elections, insofar as it upholds the creation of an autonomous region, the February 14, 1990 memorandum of the Secretary of Justice, the February 5, 1990 memorandum of the Executive Secretary, Administrative Order No. 160, and Republic Act No. 6861 are declared null and void while Executive Order No. 220 is declared to be still in force and effect until properly repealed or amended.

GEMILIANO C. LOPEZ, JR., for himself and all other interested parties similarly situated in Metropolitan Manila, petitioner, vs. THE HONORABLE COMMISSION ON ELECTIONS, respondent.1985 May 31, G.R. No. L-56022

FERNANDO, J.:Presidential Decree No. 824 1 was a response to a felt need for a "central government to establish and administer program and provide services common to" the cities of Manila, Quezon, Pasay, and Caloocan as well as thirteen municipalities 2 in the surrounding area. It is worth noting that such a problem was by no means unique and confined to the Philippines. Recent decades have witnessed a growing erosion in public confidence in the ability of local government units as traditionally organized to fulfill their responsibilities and discharge their functions effectively, efficiently, and satisfactorily. 3

The growth in population in Manila, the three other cities, and the adjacent municipalities has been unchecked since the end of World War II. There was of course the bright promise of a better life especially so with the proliferation of commercial firms and the establishment of industries. The lure has thus proved irresistible. The result has been the ever-increasing inability of the separate local governments to cope with the ensuing serious problems. A public corporation was thus created "to be known as the Metropolitan Manila, vested with powers and attributes of a corporation including the power to make contracts, sue and be sued, acquire, purchase, expropriate, hold, transfer and dispose of property and such other powers as are necessary to carry out its purposes." 4 It is administered by a Commission. 5

Petitioners 6 in the second of the above cases 7 assail the constitutionality of Presidential Decree No. 824. They rely on this provision: "No province, city, municipality, or barrio 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 unit or units affected." 8 The Local Government Code was not enacted until 1983. 9

15

For reasons to be set forth, it will be made apparent that such a challenge is far from formidable. It does not suffice to call for a declaration of unconstitutionality. Moreover, the last vestige of doubt has been removed by the present constitutional provision adopted in the plebiscite on January 27, 1984. Thus in the Article on Batasang Pambansa it is expressly provided: "The Batasang Pambansa which shall be composed of not more than 200 Members unless otherwise provided by law, shall include representatives elected from the different provinces with their component cities, highly urbanized cities as may be declared by or pursuant to law, and districts in Metropolitan Manila, those elected or selected from the various sectors as may be provided by law, and those chosen by the President from Members of the Cabinet. Each district in Metropolitan Manila shall comprise, as far as practicable, contiguous, compact and adjacent territory. The elective representatives shall be apportioned by law among the provinces with their component cities, highly urbanized cities, and the districts of Metropolitan Manila in accordance with the number of their respective inhabitants and on the basis of a uniform and progressive ratio, but the provinces with component cities and highly urbanized cities shall have at least one representative each. The provinces and cities shall have at least the same total number of representatives as under the 1935 Constitution." 10

The recognition of the existence of Metropolitan Manila cannot be expressed any clearer. There can be no legal justification then for a declaration of unconstitutionality. Presidential Decree No. 824 is not tainted with constitutional infirmity.

1. In Presidential Decree No. 824, reference was made to "the referendum held on February 27, 1975 [wherein] the residents of the Greater Manila Area authorized the President to restructure the local governments of the four cities and 13 municipalities thereof into an integrated unit of the manager or commission form of government," with the terms and conditions being left to the discretion of the President. 11 It was then pointed out that "the rapid growth of population and the corresponding increase of social and economic requirements in the contiguous communities referred to above has brought into being a large area that calls for [development both] simultaneous and unified." 12 For "many public services [then] rendered by local governments separately for themselves [ought to] be administered more efficiently and more economically, to the common benefit of the cities and municipalities in the area, if they are integrated and harmonized, under a system of central planning [treating as a common problem the] separate municipal needs." 13 It "is vital to the survival and growth of the aforementioned Greater Manila Area that a workable and effective system be established for the coordination, integration and unified management of such local government services or functions" 14 therein. There is necessity for "the unified metropolitan services or functions [to] be planned, administered, and operated [based on] the highest professional technical standards." 15 The foregoing constitutes the justification for and the objective of such Presidential Decree.

2. There is relevance to this opening paragraph in the recent case of Paredes v. Executive Secretary: 16 "The constitutional question raised in this declaratory relief proceeding treated as a special civil action for prohibition, one of first impression, arose from the issuance of a proclamation by the President, directing that a plebiscite be conducted in certain barangays, all within the municipality of Mayoyao, Province of Ifugao, segregated under a Batas Pambansa, 'to determine whether the said barangays shall become a new municipality to be known as the Municipality of Aguinaldo, Province of Ifugao.' In such proclamation, respondent Commission on Elections was charged with the duty of supervising the conduct of such plebiscite and empowered to promulgate the necessary rules and regulations to implement the proclamation. It is alleged that Batas Pambansa Blg. 86 is unconstitutional for being violative of Article XI, Section 3 of the Constitution. The basis for such contention is that the statute excluded from the plebiscite the voters from the poblacion and other barangays of the Municipality of Mayoyao except those mentioned in the Act." 17 The proclamation was issued on November 11, 1980, at least three years before the enactment of the local government code. The petition based on Article XI, Section 3 of the Constitution, the very same provision relied upon in this case, was dismissed. There were twelve (12) votes in favor of such dismissal, two of the Justices 18 voting to dismiss the petition on the ground that it had become moot and academic, the plebiscite having been duly held and the certificate of canvass and proclamation disclosing that out of the 2,409 total votes being cast in the plebiscite, 2,368 were cast in favor of the creation of the new municipality. 19 Justice Abad Santos dissented on the ground that the people in the barangay of the municipality of Aguinaldo should likewise have voted in the plebiscite, not only those of the barangays that constituted the new municipality. The Court did take note of the plausibility of such an approach but came to the conclusion that the constitutional provision on the need for a majority of the votes cast in the plebiscite in the unit or units affected would be satisfied even if "those voters who are not from the barangay to be separated [were] excluded in the plebiscite." 20 It cannot be argued therefore that the plebiscite held in the areas affected to constitute Metropolitan Manila in the referendum on February 27, 1975 was not a sufficient compliance with the constitutional provision. With the voters in such four cities and thirteen municipalities, now composing Metropolitan Manila, having manifested their will, the constitutional provision relied upon by petitioners has been satisfied. It is to be noted likewise that at the time of such plebiscite in February, 1975, there was no Local Government Code.

3. Nor is there any question as to the Presidential authority to issue Presidential Decree No. 824 creating Metropolitan Manila in 1975. There was at the time no interim Batasang Pambansa. It was the President who was then entrusted with such responsibility. So it was held in Aquino, Jr. v. Commission on Elections, 21 decided in January of 1975. The ponencia of Justice Makasiar dispelled "all doubts as to the legality of such law-making authority by the President during the period of Martial Law, . . ." 22 As the opinion went on to state: "The entire paragraph of Section 3(2) is not a grant of authority to legislate, but a recognition of such power as already existing in favor of the incumbent President during the period of Martial Law." 23

4. The sole petitioner in the other case 24 is likewise now Assemblyman Gemiliano C. Lopez, Jr. of Metropolitan Manila. It is a mandamus petition to require respondent Commission on Elections to order the elections for members of the Sangguniang Panglungsod and Sangguniang Bayan in the four cities and thirteen towns of Metropolitan Manila. As was stated in the Memorandum of the Solicitor General Estelito P. Mendoza, the fact that it is a suit for mandamus is an admission of the validity of Presidential Decree No. 824. 25 Nor would mandamus lie, it being provided therein that "the Sangguniang Bayan shall be composed of as many barangay captains as may be determined and chosen by the Commission, and such number of representatives from other sectors of the society as may be appointed by the President upon recommendation of the Commission." 26 The Solicitor General can, therefore, plausibly assert: "This demonstrates that the petition's charge, that there is no duly constituted Sangguniang Bayan in Metro Manila Area is untrue, and that the citizenry therein do have a voice in decision-making, through the respective Sangguniang Bayans of each of the political units therein." 27 The Decree itself thus supplies the refutation to the contention of petitioner.

5. The point has been raised, however, that unless Presidential Decree No. 824 be construed in such a way that along with the rest of the other cities and municipalities, there should be elections for the Sangguniang Bayan, then there is a denial of the equal protection provision of the Constitution. The point is not well-taken. In a recent decision, 28 this Court reiterated the concept of equal protection in these words: "The applicable standard to avoid the charge that there is a denial of this constitutional mandate whether the assailed act is in the exercise of the police power or the power of eminent domain is to demonstrate `that the government act assailed, far from being inspired by the attainment of the common weal was prompted by the spirit of hostility, or at the very least, discrimination that finds no support in reason. It suffices then that the laws operate equally and uniformly on all persons under similar circumstances or that all persons must be treated in the same manner, the conditions not being different, both in the privileges conferred and the liabilities imposed. Favoritism and undue preference cannot be allowed. For the principle is that equal protection and security shall be given to every person under circumstances, which, if not identical, are analogous. If law be looked upon in terms of burden or charges, those that fall within a class should be treated in the same fashion, whatever restrictions cast on some in the group equally binding on the rest.' That same formulation applies as well to taxation measures. The equal protection clause is, of course, inspired by the noble concept of approximating the ideal of the laws' benefits being available to all and the affairs of men being

16

governed by that serene and impartial uniformity, which is of the very essence of the idea of law. There is, however, wisdom, as well as realism, in these words of Justice Frankfurter: 'The equality at which the "equal protection" clause aims is not a disembodied equality. The Fourteenth Amendment enjoins "the equal protection of the laws, and laws are not abstract propositions. They do not relate to abstract units A, B and C, but are expressions of policy arising out of specific difficulties, addressed to the attainment of specific ends by the use of specific remedies. The Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same.'" 29 It is clear that under the equal protection clause, classification is not forbidden. As was so well put by Justice Laurel as ponente in the leading case of People v. Vera: 30 "Class legislation discriminating against some and favoring others is prohibited. But classification on a reasonable basis, and not made arbitrarily or capriciously is permitted. . . . The classification, however, to be reasonable must be based on substantial distinction which make real differences; it must be germane to the purposes of the law; it must not be limited to existing conditions only, and must apply equally to each member of the class." 31 All such elements are present. There is no need to set forth anew the compelling reasons that called for the creation of Metropolitan Manila. It is quite obvious that under the conditions then existing - still present and, with the continued growth of population, attended with more complexity - what was done was a response to a great public need. The government was called upon to act. Presidential Decree No. 824 was the result. It is not a condition for the validity of the Sangguniang Bayans provided for in the four cities and thirteen municipalities that the membership be identical with those of other cities or municipalities. There is ample justification for such a distinction. It does not by any means come under the category of what Professor Gunther calls suspect classification. 32 There is thus no warrant for the view that the equal protection guarantee was violated.

6. Reference was made earlier to Article VIII, Section 2 of the Constitution where there is express recognition of the juridical entity known as Metropolitan Manila. Such express constitutional affirmation of its existence in the fundamental law calls, as earlier noted, for the dismissal of these petitions, there being no legal justification for the declaration of unconstitutionality of Presidential Decree No. 824. Nor was it the first time that there has been acknowledgment in law of the creation of Metropolitan Manila. Thus according to the Election Code of 1978, "there shall be 160 regional representatives to the interim Batasang Pambansa apportioned among the thirteen regions of the nation in accordance with the number of their respective inhabitants and on the basis of a uniform and progressive ratio" with Region IV, with 19 representatives comprising "Metro Manila as follows: Cities of Manila, Quezon, Caloocan, and Pasay; and the municipalities of Valenzuela, Malabon, Navotas, Makati, Parañaque, Las Piñas, Mandaluyong, San Juan, Pasig, Muntinlupa, Marikina, Pateros, and Taguig." 33 Then there is this provision found in Presidential Decree No. 1396 creating the Ministry of Human Settlements: "SEC. 3. Establishment of the National Capital Region - In view of the critical importance of the Metropolitan Manila Region in human settlement development, it is hereby declared and established as the National Capital Region of the Republic of the Philippines, and its administration as such is hereby vested in the Secretary of Human Settlements. The pertinent provisions of Presidential Decree No. 824, creating the Metropolitan Manila Commission, are hereby accordingly amended," 34 The fact of such regional representation was once again made clear in the April 7, 1981 amendments to the Constitution. Thus: "SEC. 2. The Batasang Pambansa which shall be composed of not more than 200 members unless otherwise provided by law, shall include representatives elected from the different regions of the Philippines, those elected or selected from various sectors as may be provided by law, and those chosen by the President from the members of the Cabinet. Regional representatives shall be apportioned among the regions in accordance with the number of their respective inhabitants and on the basis of a uniform and progressive ratio." 35 Lastly, in addition to Article VIII, Section 2 of the Constitution as approved on January 27, 1984, its accompanying ordinance reads as follows: "SECTION 1. For purposes of the election of Members of the regular Batasang Pambansa on the second Monday of May 1984 and subsequent elections and until otherwise provided by law, the Members of the Batasang Pambansa, other than the sectoral representatives and those chosen by the President from the Cabinet, shall be apportioned to the different provinces with their component cities, highly urbanized cities and the representative districts of Metropolitan Manila as follows: 'National Capital Region: Manila six (6); Quezon City, four (4); Caloocan, two (2); Pasay, one (1); Pasig and Marikina, two (2); Las Piñas and Parañaque, one (1); Makati, one (1); Malabon, Navotas and Valenzuela, two (2); San Juan and Mandaluyong, one (1); Taguig, Pateros and Muntinlupa, one (1).'" 36 It would be, therefore, as contended by respondent Commission to show lack of fidelity to the Constitution if the prayer for the abolition of the Metropolitan Manila, which is expressly authorized and recognized by the fundamental law, be granted.

7. One last point. It is undeniable, therefore, that the creation of the Metropolitan Manila Commission is free from any constitutional objection. There is, however, a question that may arise in connection with the powers of the President over the Commission. According to Presidential Decree No. 824: "The Commission, the General Manager and any official of the Commission shall be under the direct supervision and control of the President. Notwithstanding any provision in this Decree, the President shall have the power to revoke, amend or modify any ordinance, resolution or act of the Commission, the General and the Commissioners." 37 It may give rise to doubts as to its validity insofar as it confers the power of control on the President. That control he certainly exercises under the present Constitution over the ministries. 38 His power over local governments does not go that far. It extends no further than general supervision. 39 These doubts, however, do not suffice to nullify such a provision. They can be set at rest. Yu Cong Eng v. Trinidad 40 shows the way. After reiterating the classic doctrine of the presumption being always in favor of constitutionality, Justice Malcolm, as ponente, categorically declared: "To doubt is to sustain." 41 In this case, the validity of Republic Act No. 2972 of the Philippine Legislature, popularly known as the Chinese Bookkeeping Law, was questioned. According to the opinion of Justice Malcolm: "A literal application of the law would make it unlawful for any Chinese merchant to keep his account books in any language other than English, Spanish, or a local dialect. The petitioners say the law is susceptible of that interpretation. But such interpretation might, and probably would, cause us to hold the law unconstitutional." 42 The construction adopted which the Court considered permissible is "that the law only intended to require the keeping of such books as were necessary in order to facilitate governmental inspection for tax purposes." 43 Such a conclusion was reached by the invocation of "an elementary, a fundamental, and a universal rule of construction, applied when considering constitutional questions, that when a law is susceptible of two constructions one of which will maintain and the other destroy it, the courts will always adopt the former." 44 Succinctly put, that construction that would save is to be preferred as against one that will destroy. As phrased by Chief Justice Hughes in Crowell v. Benson, 45 "if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided." 46 Nor does it argue against the authoritative character of Justice Malcolm's ponencia in Yu Cong Eng that it was reversed in an appeal to the United States Supreme Court. 47 During the period of American sovereignty, such jurisdiction could validly be exercised. Its decision then nullifying the Chinese Bookkeeping Law is the law of the case. It does not follow, however, that the reasoning on which the Philippine decisions was based is bereft of any legal significance. It does not admit of doubt that Justice Malcolm and his brethren considered fully the precise problem presented and the need for such a measure to assure that the taxes to which the Philippine government was entitled would be fully paid. It cannot be said that the American Supreme Court - in this as in other cases of Philippine origin - was as well-informed. It did not possess - it could not possess - full awareness of the conditions then existing in this country. After July 4, 1946, when the Philippine declared its independence, therefore, it is not only understandable but also proper that there be less reliance on American Supreme Court decisions.

What is undeniable as shown by the foregoing citations of cases - both Philippine and American - is that the approach followed by Justice Malcolm in the interpretation of statutes to avoid any doubt as to its validity remains a fundamental canon.

8. To show fidelity to this basic principle of construction is to lend substance to the equally basic doctrine that the constitution enters into and forms part of every statute. 48 Accordingly, the presidential power of control over acts of the Metro Manila Commission is limited to those that may be considered national in character. There can be no valid objection to such exercise of authority. It is undisputed that by virtue of the 1981 amendments to the Constitution, once again, "there is one purpose which is crystal-clear and is readily visible without the projection of judicial search light, and that is, the

17

establishment of a single, not plural, Executive." 49 So it was affirmed in Free Telephone Workers Union v. Minister of Labor. 50 There is significance to the fact that the Local Government Code 51 does not include the Metro Manila Commission. That is a clear recognition that some of its attributes are those of a national character. Where, however, the acts of the Metro Manila Commission may be considered as properly appertaining to local government functions, the power of the President is confined to general supervision. As thus construed, Section 13 clearly appears to be free from any constitutional infirmity.

WHEREFORE, the petition in G.R. No. 56022 entitled Gemiliano C. Lopez, Jr. v. Commission on Elections, and the petition in G.R. No. 56124 entitled Gemiliano C. Lopez, Jr. and Reynaldo B. Aralar v. Metropolitan Manila Commission, are dismissed. No costs.Aquino, Melencio-Herrera, Escolin, Relova, Gutierrez, Jr., De la Fuente, Cuevas and Alampay, JJ., concur.Makasiar, J., and estoppel is another ground.Concepcion, Jr. and Plana, JJ., are on leave.

Separate Opinions

ABAD SANTOS, J., dissenting:

I am not in agreement with the learned Chief Justice when he states that Presidential Decree No. 824 is not unconstitutional. I hold a contrary view for the following reasons among others:

1. The referendum of February 27, 1975, did not satisfy the prohibition contained in Art. XI, Sec. 3 of the 1973 Constitution. For one thing the provision speaks of "the criteria established in the local government code." There was then no local government code so there were no criteria. Also the grant of power to restructure the 4 cities and 13 municipalities in the Greater Manila area "under such terms and conditions as the President may decide" was so broad that it was in fact not an intelligent decision on the part of the people. I submit that a grant of power must be definite to be valid; it must not be nebulous and uncircumscribed so as to amount to a total abdication thereof. Finally, the referendum did not include all of the peoples of Bulacan and Rizal to ascertain if they were willing to give up some of their towns to Metropolitan Manila. The referendum suffers from the same infirmity present in the case of Paredes vs. Executive Secretary, cited in the main opinion, where I dissented.

2. The January 27, 1984, amendment to the Constitution providing for representation in the Batasang Pambansa and which allocates representatives to "districts in Metropolitan Manila" cannot be construed to constitutionally validate P.D. No. 824 for the simple reason that the issue before the people when the amendment was submitted for ratification was not the creation of the Metropolitan Manila Commission.

In the light of the foregoing, I vote to grant the petitions.BAI SANDRA S. A. SEMA, Petitioner, versus COMMISSION ON ELECTIONS and DIDAGEN P. DILANGALEN, Respondents.2008 Jul 16, G.R, No. 177597

CARPIO, J.:The CaseThese consolidated petitions[1] seek to annul Resolution No. 7902, dated 10 May 2007, of the Commission on Elections (COMELEC) treating Cotabato City as part of the legislative district of the Province of Shariff Kabunsuan.[2]

The Facts

The Ordinance appended to the 1987 Constitution apportioned two legislative districts for the Province of Maguindanao. The first legislative district consists of Cotabato City and eight municipalities.[3] Maguindanao forms part of the Autonomous Region in Muslim Mindanao (ARMM), created under its Organic Act, Republic Act No. 6734 (RA 6734), as amended by Republic Act No. 9054 (RA 9054).[4] Although under the Ordinance, Cotabato City forms part of Maguindanao’s first legislative district, it is not part of the ARMM but of Region XII, having voted against its inclusion in the ARMM in the plebiscite held in November 1989.

On 28 August 2006, the ARMM’s legislature, the ARMM Regional Assembly, exercising its power to create provinces under Section 19, Article VI of RA 9054,[5] enacted Muslim Mindanao Autonomy Act No. 201 (MMA Act 201) creating the Province of Shariff Kabunsuan composed of the eight municipalities in the first district of Maguindanao. MMA Act 201 provides:

Section 1. The Municipalities of Barira, Buldon, Datu Odin Sinsuat, Kabuntalan, Matanog, Parang, Sultan Kudarat, Sultan Mastura, and Upi are hereby separated from the Province of Maguindanao and constituted into a distinct and independent province, which is hereby created, to be known as the Province of Shariff Kabunsuan.

x x x x

Sec. 5. The corporate existence of this province shall commence upon the appointment by the Regional Governor or election of the governor and majority of the regular members of the Sangguniang Panlalawigan.

The incumbent elective provincial officials of the Province of Maguindanao shall continue to serve their unexpired terms in the province that they will choose or where they are residents: Provided, that where an elective position in both provinces becomes vacant as a consequence of the creation of the Province of Shariff Kabunsuan, all incumbent elective provincial officials shall have preference for appointment to a higher elective vacant position and for the time being be appointed by the Regional Governor, and shall hold office until their successors shall have been elected and qualified in the next local elections; Provided, further, that they shall continue to receive the salaries they are receiving at the time of the approval of this Act until the new readjustment of salaries in accordance with law. Provided, furthermore, that there shall be no diminution in the number of the members of the Sangguniang Panlalawigan of the mother province.

Except as may be provided by national law, the existing legislative district, which includes Cotabato as a part thereof, shall remain.

Later, three new municipalities[6] were carved out of the original nine municipalities constituting Shariff Kabunsuan, bringing its total number of municipalities to 11. Thus, what was left of Maguindanao were the municipalities constituting its second legislative district. Cotabato City, although part of Maguindanao’s first legislative district, is not part of the Province of Maguindanao.

The voters of Maguindanao ratified Shariff Kabunsuan’s creation in a plebiscite held on 29 October 2006.

On 6 February 2007, the Sangguniang Panlungsod of Cotabato City passed Resolution No. 3999 requesting the COMELEC to “clarify the status of Cotabato City in view of the conversion of the First District of Maguindanao into a regular province” under MMA Act 201.

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In answer to Cotabato City’s query, the COMELEC issued Resolution No. 07-0407 on 6 March 2007 "maintaining the status quo with Cotabato City as part of Shariff Kabunsuan in the First Legislative District of Maguindanao.” Resolution No. 07-0407, which adopted the recommendation of the COMELEC’s Law Department under a Memorandum dated 27 February 2007,[7] provides in pertinent parts:

Considering the foregoing, the Commission RESOLVED, as it hereby resolves, to adopt the recommendation of the Law Department that pending the enactment of the appropriate law by Congress, to maintain the status quo with Cotabato City as part of Shariff Kabunsuan in the First Legislative District of Maguindanao. Emphasis supplied)

However, in preparation for the 14 May 2007 elections, the COMELEC promulgated on 29 March 2007 Resolution No. 7845 stating that Maguindanao’s first legislative district is composed only of Cotabato City because of the enactment of MMA Act 201.[8]

On 10 May 2007, the COMELEC issued Resolution No. 7902, subject of these petitions, amending Resolution No. 07-0407 by renaming the legislative district in question as “Shariff Kabunsuan Province with Cotabato City (formerly First District of Maguindanao with Cotabato City).”[9]

In G.R. No. 177597, Sema, who was a candidate in the 14 May 2007 elections for Representative of “Shariff Kabunsuan with Cotabato City,” prayed for the nullification of COMELEC Resolution No. 7902 and the exclusion from canvassing of the votes cast in Cotabato City for that office. Sema contended that Shariff Kabunsuan is entitled to one representative in Congress under Section 5 (3), Article VI of the Constitution[10] and Section 3 of the Ordinance appended to the Constitution.[11] Thus, Sema asserted that the COMELEC acted without or in excess of its jurisdiction in issuing Resolution No. 7902 which maintained the status quo in Maguindanao’s first legislative district despite the COMELEC’s earlier directive in Resolution No. 7845 designating Cotabato City as the lone component of Maguindanao’s reapportioned first legislative district.[12] Sema further claimed that in issuing Resolution No. 7902, the COMELEC usurped Congress’ power to create or reapportion legislative districts.

In its Comment, the COMELEC, through the Office of the Solicitor General (OSG), chose not to reach the merits of the case and merely contended that (1) Sema wrongly availed of the writ of certiorari to nullify COMELEC Resolution No. 7902 because the COMELEC issued the same in the exercise of its administrative, not quasi-judicial, power and (2) Sema’s prayer for the writ of prohibition in G.R. No. 177597 became moot with the proclamation of respondent Didagen P. Dilangalen (respondent Dilangalen) on 1 June 2007 as representative of the legislative district of Shariff Kabunsuan Province with Cotabato City.

In his Comment, respondent Dilangalen countered that Sema is estopped from questioning COMELEC Resolution No. 7902 because in her certificate of candidacy filed on 29 March 2007, Sema indicated that she was seeking election as representative of “Shariff Kabunsuan including Cotabato City.” Respondent Dilangalen added that COMELEC Resolution No. 7902 is constitutional because it did not apportion a legislative district for Shariff Kabunsuan or reapportion the legislative districts in Maguindanao but merely renamed Maguindanao’s first legislative district. Respondent Dilangalen further claimed that the COMELEC could not reapportion Maguindanao’s first legislative district to make Cotabato City its sole component unit as the power to reapportion legislative districts lies exclusively with Congress, not to mention that Cotabato City does not meet the minimum population requirement under Section 5 (3), Article VI of the Constitution for the creation of a legislative district within a city.[13]

Sema filed a Consolidated Reply controverting the matters raised in respondents’ Comments and reiterating her claim that the COMELEC acted ultra vires in issuing Resolution No. 7902.

In the Resolution of 4 September 2007, the Court required the parties in G.R. No. 177597 to comment on the issue of whether a province created by the ARMM Regional Assembly under Section 19, Article VI of RA 9054 is entitled to one representative in the House of Representatives without need of a national law creating a legislative district for such new province. The parties submitted their compliance as follows:

(1) Sema answered the issue in the affirmative on the following grounds: (a) the Court in Felwa v. Salas[14] stated that “when a province is created by statute, the corresponding representative district comes into existence neither by authority of that statute — which cannot provide otherwise — nor by apportionment, but by operation of the Constitution, without a reapportionment”; (b) Section 462 of Republic Act No. 7160 (RA 7160) “affirms” the apportionment of a legislative district incident to the creation of a province; and (c) Section 5 (3), Article VI of the Constitution and Section 3 of the Ordinance appended to the Constitution mandate the apportionment of a legislative district in newly created provinces.

(2) The COMELEC, again represented by the OSG, apparently abandoned its earlier stance on the propriety of issuing Resolution Nos. 07-0407 and 7902 and joined causes with Sema, contending that Section 5 (3), Article VI of the Constitution is “self-executing.” Thus, every new province created by the ARMM Regional Assembly is ipso facto entitled to one representative in the House of Representatives even in the absence of a national law; and (3) Respondent Dilangalen answered the issue in the negative on the following grounds: (a) the “province” contemplated in Section 5 (3), Article VI of the Constitution is one that is created by an act of Congress taking into account the provisions in RA 7160 on the creation of provinces; (b) Section 3, Article IV of RA 9054 withheld from the ARMM Regional Assembly the power to enact measures relating to national elections, which encompasses the apportionment of legislative districts for members of the House of Representatives; (c) recognizing a legislative district in every province the ARMM Regional Assembly creates will lead to the disproportionate representation of the ARMM in the House of Representatives as the Regional Assembly can create provinces without regard to the requirements in Section 461 of RA 7160; and (d) Cotabato City, which has a population of less than 250,000, is not entitled to a representative in the House of Representatives.

On 27 November 2007, the Court heard the parties in G.R. No. 177597 in oral arguments on the following issues: (1) whether Section 19, Article VI of RA 9054, delegating to the ARMM Regional Assembly the power to create provinces, is constitutional; and (2) if in the affirmative, whether a province created under Section 19, Article VI of RA 9054 is entitled to one representative in the House of Representatives without need of a national law creating a legislative district for such new province.[15]

In compliance with the Resolution dated 27 November 2007, the parties in G.R. No. 177597 filed their respective Memoranda on the issues raised in the oral arguments.[16] On the question of the constitutionality of Section 19, Article VI of RA 9054, the parties in G.R. No. 177597 adopted the following positions:

(1) Sema contended that Section 19, Article VI of RA 9054 is constitutional (a) as a valid delegation by Congress to the ARMM of the power to create provinces under Section 20 (9), Article X of the Constitution granting to the autonomous regions, through their organic acts, legislative powers over “other matters as may be authorized by law for the promotion of the general welfare of the people of the region” and (b) as an amendment to Section 6 of RA 7160.[17] However, Sema concedes that, if taken literally, the grant in Section 19, Article VI of RA 9054 to the ARMM Regional Assembly of the power to “prescribe standards lower than those mandated” in RA 7160 in the creation of provinces contravenes Section 10, Article X of the Constitution.[18] Thus, Sema proposed that Section 19 “should be construed as prohibiting the Regional Assembly from prescribing standards x x x that do not comply with the minimum criteria” under RA 7160.[19]

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(2) Respondent Dilangalen contended that Section 19, Article VI of RA 9054 is unconstitutional on the following grounds: (a) the power to create provinces was not among those granted to the autonomous regions under Section 20, Article X of the Constitution and (b) the grant under Section 19, Article VI of RA 9054 to the ARMM Regional Assembly of the power to prescribe standards lower than those mandated in Section 461 of RA 7160 on the creation of provinces contravenes Section 10, Article X of the Constitution and the Equal Protection Clause; and (3) The COMELEC, through the OSG, joined causes with respondent Dilangalen (thus effectively abandoning the position the COMELEC adopted in its Compliance with the Resolution of 4 September 2007) and contended that Section 19, Article VI of RA 9054 is unconstitutional because (a) it contravenes Section 10 and Section 6,[20] Article X of the Constitution and (b) the power to create provinces was withheld from the autonomous regions under Section 20, Article X of the Constitution.

On the question of whether a province created under Section 19, Article VI of RA 9054 is entitled to one representative in the House of Representatives without need of a national law creating a legislative district for such new province, Sema and respondent Dilangalen reiterated in their Memoranda the positions they adopted in their Compliance with the Resolution of 4 September 2007. The COMELEC deemed it unnecessary to submit its position on this issue considering its stance that Section 19, Article VI of RA 9054 is unconstitutional.

The pendency of the petition in G.R. No. 178628 was disclosed during the oral arguments on 27 November 2007. Thus, in the Resolution of 19 February 2008, the Court ordered G.R. No. 178628 consolidated with G.R. No. 177597. The petition in G.R. No. 178628 echoed Sema's contention that the COMELEC acted ultra vires in issuing Resolution No. 7902 depriving the voters of Cotabato City of a representative in the House of Representatives. In its Comment to the petition in G.R. No. 178628, the COMELEC, through the OSG, maintained the validity of COMELEC Resolution No. 7902 as a temporary measure pending the enactment by Congress of the “appropriate law.”

The IssuesThe petitions raise the following issues:

I. In G.R. No. 177597:

(A) Preliminarily – (1) whether the writs of Certiorari, Prohibition, and Mandamus are proper to test the constitutionality of COMELEC Resolution No. 7902; and (2) whether the proclamation of respondent Dilangalen as representative of Shariff Kabunsuan Province with Cotabato City mooted the petition in G.R. No. 177597.

(B) On the merits – (1) whether Section 19, Article VI of RA 9054, delegating to the ARMM Regional Assembly the power to create provinces, cities, municipalities and barangays, is constitutional; and (2) if in the affirmative, whether a province created by the ARMM Regional Assembly under MMA Act 201 pursuant to Section 19, Article VI of RA 9054 is entitled to one representative in the House of Representatives without need of a national law creating a legislative district for such province.

II. In G.R No. 177597 and G.R No. 178628, whether COMELEC Resolution No. 7902 is valid for maintaining the status quo in the first legislative district of Maguindanao (as “Shariff Kabunsuan Province with Cotabato City [formerly First District of Maguindanao with Cotabato City]”), despite the creation of the Province of Shariff Kabunsuan out of such district (excluding Cotabato City).

The Ruling of the Court.

The petitions have no merit. We rule that (1) Section 19, Article VI of RA 9054 is unconstitutional insofar as it grants to the ARMM Regional Assembly the power to create provinces and cities; (2) MMA Act 201 creating the Province of Shariff Kabunsuan is void; and (3) COMELEC Resolution No. 7902 is valid.

On the Preliminary Matters.

The Writ of Prohibition is Appropriate to Test the Constitutionality of Election Laws, Rules and Regulations

The purpose of the writ of Certiorari is to correct grave abuse of discretion by “any tribunal, board, or officer exercising judicial or quasi-judicial functions.”[21] On the other hand, the writ of Mandamus will issue to compel a tribunal, corporation, board, officer, or person to perform an act “which the law specifically enjoins as a duty.”[22] True, the COMELEC did not issue Resolution No. 7902 in the exercise of its judicial or quasi-judicial functions.[23] Nor is there a law which specifically enjoins the COMELEC to exclude from canvassing the votes cast in Cotabato City for representative of “Shariff Kabunsuan Province with Cotabato City.” These, however, do not justify the outright dismissal of the petition in G.R. No. 177597 because Sema also prayed for the issuance of the writ of Prohibition and we have long recognized this writ as proper for testing the constitutionality of election laws, rules, and regulations.[24]

Respondent Dilangalen’s Proclamation Does Not Moot the Petition

There is also no merit in the claim that respondent Dilangalen’s proclamation as winner in the 14 May 2007 elections for representative of “Shariff Kabunsuan Province with Cotabato City” mooted this petition. This case does not concern respondent Dilangalen’s election. Rather, it involves an inquiry into the validity of COMELEC Resolution No. 7902, as well as the constitutionality of MMA Act 201 and Section 19, Article VI of RA 9054. Admittedly, the outcome of this petition, one way or another, determines whether the votes cast in Cotabato City for representative of the district of “Shariff Kabunsuan Province with Cotabato City” will be included in the canvassing of ballots. However, this incidental consequence is no reason for us not to proceed with the resolution of the novel issues raised here. The Court’s ruling in these petitions affects not only the recently concluded elections but also all the other succeeding elections for the office in question, as well as the power of the ARMM Regional Assembly to create in the future additional provinces.

On the Main Issues

Whether the ARMM Regional Assembly

Can Create the Province of Shariff Kabunsuan

The creation of local government units is governed by Section 10, Article X of the Constitution, which provides:

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.

Thus, the creation of any of the four local government units – province, city, municipality or barangay – must comply with three conditions. First, the creation of a local government unit must follow the criteria fixed in the Local Government Code. Second, such creation must not conflict with any provision of the Constitution. Third, there must be a plebiscite in the political units affected.

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There is neither an express prohibition nor an express grant of authority in the Constitution for Congress to delegate to regional or local legislative bodies the power to create local government units. However, under its plenary legislative powers, Congress can delegate to local legislative bodies the power to create local government units, subject to reasonable standards and provided no conflict arises with any provision of the Constitution. In fact, Congress has delegated to provincial boards, and city and municipal councils, the power to create barangays within their jurisdiction,[25] subject to compliance with the criteria established in the Local Government Code, and the plebiscite requirement in Section 10, Article X of the Constitution. However, under the Local Government Code, “only x x x an Act of Congress” can create provinces, cities or municipalities.[26]

Under Section 19, Article VI of RA 9054, Congress delegated to the ARMM Regional Assembly the power to create provinces, cities, municipalities and barangays within the ARMM. Congress made the delegation under its plenary legislative powers because the power to create local government units is not one of the express legislative powers granted by the Constitution to regional legislative bodies.[27] In the present case, the question arises whether the delegation to the ARMM Regional Assembly of the power to create provinces, cities, municipalities and barangays conflicts with any provision of the Constitution.

There is no provision in the Constitution that conflicts with the delegation to regional legislative bodies of the power to create municipalities and barangays, provided Section 10, Article X of the Constitution is followed. However, the creation of provinces and cities is another matter. Section 5 (3), Article VI of the Constitution provides, “Each city with a population of at least two hundred fifty thousand, or each province, shall have at least one representative” in the House of Representatives. Similarly, Section 3 of the Ordinance appended to the Constitution provides, “Any province that may hereafter be created, or any city whose population may hereafter increase to more than two hundred fifty thousand shall be entitled in the immediately following election to at least one Member x x x.”

Clearly, a province cannot be created without a legislative district because it will violate Section 5 (3), Article VI of the Constitution as well as Section 3 of the Ordinance appended to the Constitution. For the same reason, a city with a population of 250,000 or more cannot also be created without a legislative district. Thus, the power to create a province, or a city with a population of 250,000 or more, requires also the power to create a legislative district. Even the creation of a city with a population of less than 250,000 involves the power to create a legislative district because once the city’s population reaches 250,000, the city automatically becomes entitled to one representative under Section 5 (3), Article VI of the Constitution and Section 3 of the Ordinance appended to the Constitution. Thus, the power to create a province or city inherently involves the power to create a legislative district.

For Congress to delegate validly the power to create a province or city, it must also validly delegate at the same time the power to create a legislative district. The threshold issue then is, can Congress validly delegate to the ARMM Regional Assembly the power to create legislative districts for the House of Representatives? The answer is in the negative.

Legislative Districts are Created or Reapportioned Only by an Act of Congress Under the present Constitution, as well as in past[28] Constitutions, the power to increase the allowable membership in the House of Representatives, and to reapportion legislative districts, is vested exclusively in Congress. Section 5, Article VI of the Constitution provides:

SECTION 5. (1) The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected through a party-list system of registered national, regional, and sectoral parties or organizations.

x x x x

(3) 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.

(4) Within three years following the return of every census, the Congress shall make a reapportionment of legislative districts based on the standards provided in this section. Emphasis supplied)

Section 5 (1), Article VI of the Constitution vests in Congress the power to increase, through a law, the allowable membership in the House of Representatives. Section 5 (4) empowers Congress to reapportion legislative districts. The power to reapportion legislative districts necessarily includes the power to create legislative districts out of existing ones. Congress exercises these powers through a law that Congress itself enacts, and not through a law that regional or local legislative bodies enact. The allowable membership of the House of Representatives can be increased, and new legislative districts of Congress can be created, only through a national law passed by Congress. In Montejo v. COMELEC,[29] we held that the “power of redistricting x x x is traditionally regarded as part of the power (of Congress) to make laws,” and thus is vested exclusively in Congress.

This textual commitment to Congress of the exclusive power to create or reapportion legislative districts is logical. Congress is a national legislature and any increase in its allowable membership or in its incumbent membership through the creation of legislative districts must be embodied in a national law. Only Congress can enact such a law. It would be anomalous for regional or local legislative bodies to create or reapportion legislative districts for a national legislature like Congress. An inferior legislative body, created by a superior legislative body, cannot change the membership of the superior legislative body.

The creation of the ARMM, and the grant of legislative powers to its Regional Assembly under its organic act, did not divest Congress of its exclusive authority to create legislative districts. This is clear from the Constitution and the ARMM Organic Act, as amended. Thus, Section 20, Article X of the Constitution provides:

SECTION 20. Within its territorial jurisdiction and subject to the provisions of this Constitution and national laws, the organic act of autonomous regions shall provide for legislative powers over:

(1) Administrative organization;

(2) Creation of sources of revenues;(3) Ancestral domain and natural resources;(4) Personal, family, and property relations;(5) Regional urban and rural planning development;(6) Economic, social, and tourism development;(7) Educational policies;(8) Preservation and development of the cultural heritage; and(9) Such other matters as may be authorized by law for the promotion of the general welfare of the people of the

region.

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Nothing in Section 20, Article X of the Constitution authorizes autonomous regions, expressly or impliedly, to create or reapportion legislative districts for Congress.

On the other hand, Section 3, Article IV of RA 9054 amending the ARMM Organic Act, provides, “The Regional Assembly may exercise legislative power x x x except on the following matters: x x x (k) National elections. x x x.” Since the ARMM Regional Assembly has no legislative power to enact laws relating to national elections, it cannot create a legislative district whose representative is elected in national elections. Whenever Congress enacts a law creating a legislative district, the first representative is always elected in the “next national elections” from the effectivity of the law.[30]

Indeed, the office of a legislative district representative to Congress is a national office, and its occupant, a Member of the House of Representatives, is a national official.[31] It would be incongruous for a regional legislative body like the ARMM Regional Assembly to create a national office when its legislative powers extend only to its regional territory. The office of a district representative is maintained by national funds and the salary of its occupant is paid out of national funds. It is a self-evident inherent limitation on the legislative powers of every local or regional legislative body that it can only create local or regional offices, respectively, and it can never create a national office.

To allow the ARMM Regional Assembly to create a national office is to allow its legislative powers to operate outside the ARMM’s territorial jurisdiction. This violates Section 20, Article X of the Constitution which expressly limits the coverage of the Regional Assembly’s legislative powers “[w]ithin its territorial jurisdiction x x x.”

The ARMM Regional Assembly itself, in creating Shariff Kabunsuan, recognized the exclusive nature of Congress’ power to create or reapportion legislative districts by abstaining from creating a legislative district for Shariff Kabunsuan. Section 5 of MMA Act 201 provides that:

Except as may be provided by national law, the existing legislative district, which includes Cotabato City as a part thereof, shall remain. Emphasis supplied)

However, a province cannot legally be created without a legislative district because the Constitution mandates that “each province shall have at least one representative.” Thus, the creation of the Province of Shariff Kabunsuan without a legislative district is unconstitutional.

Sema, petitioner in G.R. No. 177597, contends that Section 5 (3), Article VI of the Constitution, which 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) and Section 3 of the Ordinance appended to the Constitution, which states:

Any province that may hereafter be created, or any city whose population may hereafter increase to more than two hundred fifty thousand shall be entitled in the immediately following election to at least one Member or such number of Members as it may be entitled to on the basis of the number of its inhabitants and according to the standards set forth in paragraph (3), Section 5 of Article VI of the Constitution. The number of Members apportioned to the province out of which such new province was created or where the city, whose population has so increased, is geographically located shall be correspondingly adjusted by the Commission on Elections but such adjustment shall not be made within one hundred and twenty days before the election. Emphasis supplied) serve as bases for the conclusion that the Province of Shariff Kabunsuan, created on 29 October 2006, is automatically entitled to one member in the House of Representatives in the 14 May 2007 elections. As further support for her stance, petitioner invokes the statement in Felwa that “when a province is created by statute, the corresponding representative district comes into existence neither by authority of that statute — which cannot provide otherwise — nor by apportionment, but by operation of the Constitution, without a reapportionment.”

The contention has no merit.

First. The issue in Felwa, among others, was whether Republic Act No. 4695 (RA 4695), creating the provinces of Benguet, Mountain Province, Ifugao, and Kalinga-Apayao and providing for congressional representation in the old and new provinces, was unconstitutional for “creati[ng] congressional districts without the apportionment provided in the Constitution.” The Court answered in the negative, thus:

The Constitution ordains:

“The House of Representatives shall be composed of not more than one hundred and twenty Members who shall be apportioned among the several provinces as nearly as may be according to the number of their respective inhabitants, but each province shall have at least one Member. The Congress shall by law make an apportionment within three years after the return of every enumeration, and not otherwise. Until such apportionment shall have been made, the House of Representatives shall have the same number of Members as that fixed by law for the National Assembly, who shall be elected by the qualified electors from the present Assembly districts. Each representative district shall comprise as far as practicable, contiguous and compact territory.”

Pursuant to this Section, a representative district may come into existence: (a) indirectly, through the creation of a province — for “each province shall have at least one member” in the House of Representatives; or (b) by direct creation of several representative districts within a province. The requirements concerning the apportionment of representative districts and the territory thereof refer only to the second method of creation of representative districts, and do not apply to those incidental to the creation of provinces, under the first method. This is deducible, not only from the general tenor of the provision above quoted, but, also, from the fact that the apportionment therein alluded to refers to that which is made by an Act of Congress. Indeed, when a province is created by statute, the corresponding representative district, comes into existence neither by authority of that statute — which cannot provide otherwise — nor by apportionment, but by operation of the Constitution, without a reapportionment.

There is no constitutional limitation as to the time when, territory of, or other conditions under which a province may be created, except, perhaps, if the consequence thereof were to exceed the maximum of 120 representative districts prescribed in the Constitution, which is not the effect of the legislation under consideration. As a matter of fact, provinces have been created or subdivided into other provinces, with the consequent creation of additional representative districts, without complying with the aforementioned requirements.[32] (Emphasis supplied)

Thus, the Court sustained the constitutionality of RA 4695 because (1) it validly created legislative districts “indirectly” through a special law enacted by Congress creating a province and (2) the creation of the legislative districts will not result in breaching the maximum number of legislative districts provided under the 1935 Constitution. Felwa does not apply to the present case because in Felwa the new provinces were created by a national law enacted by Congress itself. Here, the new province was created merely by a regional law enacted by the ARMM Regional Assembly.

What Felwa teaches is that the creation of a legislative district by Congress does not emanate alone from Congress’ power to reapportion legislative districts, but also from Congress’ power to create provinces which cannot be created without a

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legislative district. Thus, when a province is created, a legislative district is created by operation of the Constitution because the Constitution provides that “each province shall have at least one representative” in the House of Representatives. This does not detract from the constitutional principle that the power to create legislative districts belongs exclusively to Congress. It merely prevents any other legislative body, except Congress, from creating provinces because for a legislative body to create a province such legislative body must have the power to create legislative districts. In short, only an act of Congress can trigger the creation of a legislative district by operation of the Constitution. Thus, only Congress has the power to create, or trigger

the creation of, a legislative district.

Moreover, if as Sema claims MMA Act 201 apportioned a legislative district to Shariff Kabunsuan upon its creation, this will leave Cotabato City as the lone component of the first legislative district of Maguindanao. However, Cotabato City cannot constitute a legislative district by itself because as of the census taken in 2000, it had a population of only 163,849. To constitute Cotabato City alone as the surviving first legislative district of Maguindanao will violate Section 5 (3), Article VI of the Constitution which requires that “[E]ach city with a population of at least two hundred fifty thousand x x x, shall have at least one representative.”

Second. Sema’s theory also undermines the composition and independence of the House of Representatives. Under Section 19,[33] Article VI of RA 9054, the ARMM Regional Assembly can create provinces and cities within the ARMM with or without regard to the criteria fixed in Section 461 of RA 7160, namely: minimum annual income of P20,000,000, and minimum contiguous territory of 2,000 square kilometers or minimum population of 250,000.[34] The following scenarios thus become distinct possibilities:

(1) An inferior legislative body like the ARMM Regional Assembly can create 100 or more provinces and thus increase the membership of a superior legislative body, the House of Representatives, beyond the maximum limit of 250 fixed in the Constitution (unless a national law provides otherwise);

(2) The proportional representation in the House of Representatives based on one representative for at least every 250,000 residents will be negated because the ARMM Regional Assembly need not comply with the requirement in Section 461(a)(ii) of RA 7160 that every province created must have a population of at least 250,000; and

(3) Representatives from the ARMM provinces can become the majority in the House of Representatives through the ARMM Regional Assembly’s continuous creation of provinces or cities within the ARMM.

The following exchange during the oral arguments of the petition in G.R. No. 177597 highlights the absurdity of Sema’s position that the ARMM Regional Assembly can create provinces:

Justice Carpio: So, you mean to say [a] Local Government can create legislative district[s] and pack Congress with their own representatives [?]

Atty. Vistan II:[35] Yes, Your Honor, because the Constitution allows that.

Justice Carpio: So, [the] Regional Assembly of [the] ARMM can create and create x x x provinces x x x and, therefore, they can have thirty-five (35) new representatives in the House of Representatives without Congress agreeing to it, is that what you are saying? That can be done, under your theory[?]

Atty. Vistan II: Yes, Your Honor, under the correct factual circumstances.

Justice Carpio: Under your theory, the ARMM legislature can create thirty-five (35) new provinces, there may be x x x [only] one hundred thousand (100,000) [population], x x x, and they will each have one representative x x x to Congress without any national law, is that what you are saying?

Atty. Vistan II: Without law passed by Congress, yes, Your Honor, that is what we are saying.

x x x x

Justice Carpio: So, they can also create one thousand (1000) new provinces, sen[d] one thousand (1000) representatives to the House of Representatives without a national law[,] that is legally possible, correct?

Atty. Vistan II: Yes, Your Honor.[36] (Emphasis supplied)

Neither the framers of the 1987 Constitution in adopting the provisions in Article X on regional autonomy,[37] nor Congress in enacting RA 9054, envisioned or intended these disastrous consequences that certainly would wreck the tri-branch system of government under our Constitution. Clearly, the power to create or reapportion legislative districts cannot be delegated by Congress but must be exercised by Congress itself. Even the ARMM Regional Assembly recognizes this.

The Constitution empowered Congress to create or reapportion legislative districts, not the regional assemblies. Section 3 of the Ordinance to the Constitution which states, “[A]ny province that may hereafter be created x x x shall be entitled in the immediately following election to at least one Member,” refers to a province created by Congress itself through a national law. The reason is that the creation of a province increases the actual membership of the House of Representatives, an increase that only Congress can decide. Incidentally, in the present 14th Congress, there are 219[38] district representatives out of the maximum 250 seats in the House of Representatives. Since party-list members shall constitute 20 percent of total membership of the House, there should at least be 50 party-list seats available in every election in case 50 party-list candidates are proclaimed winners. This leaves only 200 seats for district representatives, much less than the 219 incumbent district representatives. Thus, there is a need now for Congress to increase by law the allowable membership of the House, even before Congress can create new provinces. It is axiomatic that organic acts of autonomous regions cannot prevail over the Constitution. Section 20, Article X of the Constitution expressly provides that the legislative powers of regional assemblies are limited “[w]ithin its territorial jurisdiction and subject to the provisions of the Constitution and national laws, x x x.” The Preamble of the ARMM Organic Act (RA 9054) itself states that the ARMM Government is established “within the framework of the Constitution.” This follows Section 15, Article X of the Constitution which mandates that the ARMM “shall be created x x x within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines.”

The present case involves the creation of a local government unit that necessarily involves also the creation of a legislative district. The Court will not pass upon the constitutionality of the creation of municipalities and barangays that does not comply with the criteria established in Section 461 of RA 7160, as mandated in Section 10, Article X of the Constitution, because the creation of such municipalities and barangays does not involve the creation of legislative districts. We leave the resolution of this issue to an appropriate case.

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In summary, we rule that Section 19, Article VI of RA 9054, insofar as it grants to the ARMM Regional Assembly the power to create provinces and cities, is void for being contrary to Section 5 of Article VI and Section 20 of Article X of the Constitution, as well as Section 3 of the Ordinance appended to the Constitution. Only Congress can create provinces and cities because the creation of provinces and cities necessarily includes the creation of legislative districts, a power only Congress can exercise under Section 5, Article VI of the Constitution and Section 3 of the Ordinance appended to the Constitution. The ARMM Regional Assembly cannot create a province without a legislative district because the Constitution mandates that every province shall have a legislative district. Moreover, the ARMM Regional Assembly cannot enact a law creating a national office like the office of a district representative of Congress because the legislative powers of the ARMM Regional Assembly operate only within its territorial jurisdiction as provided in Section 20, Article X of the Constitution. Thus, we rule that MMA Act 201, enacted by the ARMM Regional Assembly and creating the Province of Shariff Kabunsuan, is void.

Resolution No. 7902 Complies with the Constitution Consequently, we hold that COMELEC Resolution No. 7902, preserving the geographic and legislative district of the First District of Maguindanao with Cotabato City, is valid as it merely complies with Section 5 of Article VI and Section 20 of Article X of the Constitution, as well as Section 1 of the Ordinance appended to the Constitution.

WHEREFORE, we declare Section 19, Article VI of Republic Act No. 9054 UNCONSTITUTIONAL insofar as it grants to the Regional Assembly of the Autonomous Region in Muslim Mindanao the power to create provinces and cities. Thus, we declare VOID Muslim Mindanao Autonomy Act No. 201 creating the Province of Shariff Kabunsuan. Consequently, we rule that COMELEC Resolution No. 7902 is VALID.

PATRICIO TAN, FELIX FERRER, JUAN M. HAGAD, SERGIO HILADO, VIRGILIO GASTON, CONCHITA MINAYA, TERESITA ESTACIO, DESIDERIO DEFERIA, ROMEO GAMBOA, ALBERTO LACSON, FE HOFILENA, EMILY JISON, NIEVES LOPEZ AND CECILIA MAGSAYSAY, petitioners, vs. THE COMMISSION ON ELECTIONS and THE PROVINCIAL TREASURER OF NEGROS OCCIDENTAL, respondents.1986 Jul 11, G.R. No. 73155

ALAMPAY, J:Prompted by the enactment of Batas Pambansa Blg. 885 ---- An Act Creating a New Province in the Island of Negros to be known as the Province of Negros del Norte, which took effect on December 3, 1985, Petitioners herein, who are residents of the Province of Negros Occidental, in the various cities and municipalities therein, on December 23, 1985, filed with this Court a case for Prohibition for the purpose of stopping respondents Commission on Elections from conducting the plebiscite which, pursuant to and in implementation of the aforesaid law, was scheduled for January 3, 1986.

Said law provides:

"SECTION 1. The Cities of Silay, Cadiz, and San Carlos and the municipalities of Calatrava, Taboso, Escalante, Sagay, Manapla, Victorias, E.R. Magalona; and Salvador Benedicto, all in the northern portion of the Island of Negros, are hereby separated from the province to be known as the Province of Negros del Norte.

"SEC. 2. The boundaries of the new province shall be the southern limits of the City of Silay, the Municipality of Salvador Benedicto and the City of San Carlos on the south and the territorial limits of the northern portion to the Island of Negros on the west, north and east, comprising a territory of 4,019.95 square kilometers more or less.

"SEC. 3. The seat of government of the new province shall be the City of Cadiz.

"SEC. 4. A plebiscite shall be conducted in the proposed new province which are the areas affected within a period of one hundred and twenty days from the approval of this Act. After the ratification of the creation of the Province of Negros del Norte by a majority of the votes cast in such plebiscite, the President of the Philippines shall appoint the first officials of the province.

"SEC. 5. The Commission on Elections shall conduct and supervise the plebiscite herein provided, the expenses for which shall be charged to local funds

"SEC. 6. This Act shall take effect upon its approval." (Rollo, pp. 23-24)

Petitioners contend that Batas Pambansa Blg. 885 is unconstitutional and it is not in complete accord with the Local Government Code as in Article XI, Section 3 of our Constitution, it is expressly mandated that

"Sec. 3. No province, city, municipality or barrio may be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the criteria established in the local government code, and subject to the approval by a majority of the votes in a plebiscite in the unit or units affected."

Section 197 of the Local Government Code enumerates the conditions which must exist to provide the legal basis for the creation of a provincial unit and these requisites are:

"SEC. 197. Requisites for Creation. A province may be created if it has a territory of at least three thousand five hundred square kilometers, a population of at least five hundred thousand persons, an average estimated annual income, as certified by the Ministry of Finance, of not less than ten million pesos for the last three consecutive years, and its creation shall not reduce the population and income of the mother province or provinces at the time of said creation to less than the minimum requirements under this section. The territory need not be contiguous if it comprises two or more islands.

'The average estimated annual income shall include the income alloted for both the general and infrastructural funds, exclusive of trust funds, transfers and nonrecurring income. (Rollo, p. 6)

Due to the constraints brought about by the supervening Christmas holidays during which the Court was in recess and unable to timely consider the petition, a supplemental pleading was filed by petitioners on January 4, 1986, averring therein that the plebiscite sought to be restrained by them was held on January 3, 1986 as scheduled but that there are still serious issues raised in the instant case affecting the legality, constitutionality and validity of such exercise which should properly be passed upon and resolved by this Court.

The plebiscite was confined only to the inhabitants of the territory of Negros del Norte, namely: the Cities of Silay, Cadiz, and San Carlos, and the municipalities of Calatrava, Taboso, Escalante, Sagay, Manapla, Victorias, E.B. Magalona and Don Salvador Benedicto. Because of the exclusions of the voters from the rest of the province of Negros Occidental, petitioners found need to change the prayer of their petition "to the end that the constitutional issues which they have raised in the action will be ventilated and given final resolution." At the same time, they asked that the effects of the plebiscite which they sought to stop be suspended until the Supreme Court shall have rendered its decision on the very fundamental and far-reaching questions that petitioners have brought out.

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Acknowledging in their supplemental petition that supervening events rendered moot the prayer in their initial petition that the plebiscite scheduled for January 3, 1986, be enjoined, petitioners plead, nevertheless, that

". . . a writ of Prohibition be issued directed to Respondent Commission on Elections to desist from issuing official proclamation of the results of the plebiscite held on January 3, 1986.

"Finding that the exclusion and non-participation of the voters of the Province of Negros Occidental other than those living within the territory of the new province of Negros del Norte to be not in accordance with the Constitution, that a writ of Mandamus be issued, directed to the respondent Commission on Elections, to schedule the holding of another plebiscite at which all the qualified voters of the entire Province of Negros Occidental as now existing shall participate, at the same time making pronouncement that the plebiscite held on January 3, 1986 has no legal effect, being a patent legal nullity;

"And that a similar writ of Prohibition be issued, directed to the respondent Provincial Treasurer, to desist from ordering the release of any local funds to answer for expenses incurred in the holding of such plebiscite until ordered by the Court." (Rollo, pp. 19-10).

Petitioners further prayed that the respondent COMELEC hold in abeyance the issuance of any official proclamation of the results of the aforestated plebiscite.

During the pendency of this case, a motion that he be allowed to appear as amicus curiae in this case (dated December 27, 1985 and filed with the Court on January 2, 1986) was submitted by former Senator Ambrosio Padilla. Said motion was granted in Our resolution of January 2, 1986.

Acting on the petition, as well as on the supplemental petition for prohibition with preliminary injunction with prayer for restraining order, the Court, on January 7, 1986 resolved, without giving due course to the same, to require respondents to comment, not to file a motion to dismiss. Complying with said resolution, public respondents, represented by the Office of the Solicitor General, on January 14, 1986, filed their Comment, arguing therein that the challenged statute ---- Batas Pambansa 885, should be accorded the presumption of legality. They submit that the said law is not void on its face and that the petition does not show a clear, categorical and undeniable demonstration of the supposed infringement of the Constitution. Respondents state that the powers of the Batasang Pambansa to enact the assailed law is beyond question. They claim that Batas Pambansa Blg. 885 does not infringe the Constitution because the requisites of the Local Government Code have been complied with. Furthermore, they submit that this case has now become moot and academic with the proclamation of the new Province of Negros del Norte.

Respondents argue that the remaining cities and municipalities of the Province of Negros Occidental not included in the area of the new Province of Negros del Norte, do not fall within the meaning and scope of the term "unit or units affected", as referred to in Section 3 of Art. XI of our Constitution. On this reasoning, respondents maintain that Batas Pambansa Blg. 885 does not violate the Constitution, invoking and citing the case of Governor Zosimo Paredes versus the Honorable Executive Secretary to the President, et al. (G.R. No. 55628, March 2, 1984 (128 SCRA 61), particularly the pronouncements therein, hereunder quoted:

"1. Admittedly, this is one of those cases where the discretion of the Court is allowed considerable leeway. There is indeed an element of ambiguity in the use of the expression 'unit or units affected'. It is plausible to assert as petitioners do that when certain Barangays are separated from a parent municipality to form a new one, all the voters therein are affected. It is much more persuasive, however, to contend as respondents do that the acceptable construction is for those voters, who are not from the barangays to be separated, should be excluded in the plebiscite.

"2. For one thing, it is in accordance with the settled doctrine that between two possible constructions, one avoiding a finding of unconstitutionality and the other yielding such a result, the former is to be preferred. That which will save, not that which will destroy, commends itself for acceptance. After all, the basic presumption all these years is one of validity. . . .

"3. . . . Adherence to such philosophy compels the conclusion that when there are indications that the inhabitants of several barangays are inclined to separate from a parent municipality they should be allowed to do so. What is more logical than to ascertain their will in a plebiscite called for that purpose. It is they, and they alone, who shall constitute the new unit. New responsibilities will be assumed. New burdens will be imposed. A new municipal corporation will come into existence. Its birth will be a matter of choice ---- their choice. They should be left alone then to decide for themselves. To allow other voters to participate will not yield a true expression of their will. They may even frustrate it. That certainly will be so if they vote against it for selfish reasons, and they constitute the majority. That is not to abide by the fundamental principle of the Constitution to promote local autonomy, the preference being for smaller units. To rule as this Tribunal does is to follow an accepted principle of constitutional construction, that in ascertaining the meaning of a particular provision that may give rise to doubts, the intent of the framers and of the people may be gleaned from provisions in pari materia."

Respondents submit that said ruling in the aforecited case applies equally with force in the case at bar. Respondents also maintain that the requisites under the Local Government Code (P.D. 337) for the creation of the new province of Negros del Norte have all been duly complied with. Respondents discredit petitioners' allegations that the requisite area of 3,500 square kilometers as so prescribed in the Local Government Code for a new province to be created has not been satisfied. Petitioners insist that the area which would comprise the new province of Negros del Norte, would only be about 2,856.56 square kilometers and which evidently would be lesser than the minimum area prescribed by the governing statute. Respondents, in this regard, point out and stress that Section 2 of Batas Pambansa Blg. 885 creating said new province plainly declares that the territorial boundaries of Negros del Norte comprise an area of 4,019.95 square kilometers, more or less.

As a final argument, respondents insist that instant petition has been rendered moot and academic considering that a plebiscite has been already conducted on January 3, 1986; that as a result thereof, the corresponding certificate of canvass indicated that out of 195,134 total votes cast in said plebiscite, 164,734 were in favor of the creation of Negros del Norte and 30,400 were against it; and because "the affirmative votes cast represented a majority of the total votes cast in said plebiscite, the Chairman of the Board of Canvassers proclaimed the new province which shall be known as "Negros del Norte". Thus, respondents stress the fact that following the proclamation of Negros del Norte province, the appointments of the officials of said province created were announced. On these considerations, respondents urge that this case should be dismissed for having been rendered moot and academic as the creation of the new province is now a " fait accompli."

In resolving this case, it will be useful to note and emphasize the facts which appear to be agreed to by the parties herein or stand unchallenged.

Firstly, there is no disagreement that the Provincial Treasurer of the Province of Negros Occidental has not disbursed, nor was required to disburse any public funds in connection with the plebiscite held on January 3, 1986 as so disclosed in the Comment to the Petition filed by the respondent Provincial Treasurer of Negros Occidental dated January 20, 1986 (Rollo, pp. 36-37). Thus, the prayer of the petitioners that said Provincial Treasurer be directed by this Court to desist from ordering the release of any public funds on account of such plebiscite should not longer deserve further consideration.

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Secondly, in Parliamentary Bill No. 3644 which led to the enactment of Batas Pambansa Blg. 885 and the creation of the new Province of Negros del Norte, it expressly declared in Sec. 2 of the aforementioned Parliamentary Bill, the following:

"SEC. 2. The boundaries of the new province shall be the southern limits of the City of Silay, the Municipality of Salvador Benedicto and the City of San Carlos on the South and the natural boundaries of the northern portion of the Island of Negros on the West, North and East, containing an area of 285,656 hectares more or less."

However, when said Parliamentary Bill No. 3644 was very quickly enacted into Batas Pambansa Blg. 885, the boundaries of the new Province of Negros del Norte were defined therein and its boundaries then stated to be as follows:

"SEC 1. The Cities of Silay, Cadiz, and San Carlos and the municipalities of Calatrava, Toboso, Escalante. Sagay, Manapla, Victorias, E.R. Magalona; and Salvador Benedicto, all in the northern portion of the Island of Negros, are hereby separated from the Province of Negros Occidental and constituted into a new province to be known as the Province of Negros del Norte.

"SEC. 1. The boundaries of the new province shall be the southern limits of the City of Silay, the Municipality of Salvador Benedicto and the City of San Carlos on the south and the territorial limits of the northern portion of the Island of Negros on the West, North and East, comprising a territory of 4,019.95 square kilometers more or less."

Equally accepted by the parties is the fact that under the certification issued by Provincial Treasurer Julian L. Ramirez of the Province of Negros Occidental, dated July 16, 1985, it was therein certified as follows:

xxx xxx xxx

"This is to certify that the following cities and municipalities of Negros Occidental have the land area as indicated hereunder based on the Special Report No. 3, Philippines 1980, Population, Land Area and Density: 1970, 1975 and 1980 by the National Census and Statistics Office, Manila.

Land Area (Sq. Km.)"1. Silay City 214.8 2. E.B. Magalona 113.3 3. Victorias 133.9 4. Manapla 112.9 5. Cadiz City 516.5 6. Sagay 389.6 7. Escalante 124.0 8. Toboso 123.4 9. Calatrava 504.5 10. San Carlos City 451.3 11. Don Salvador Benedicto (not available)

"This certification is issued upon the request of Dr. Patricio Y. Tan for whatever purpose it may serve him.

"(SGD.) JULIAN L. RAMIREZ

Provincial Treasurer" (Exh. "C" of Petition, Rollo, p. 90).

Although in the above certification it is stated that the land area of the relatively new municipality of Don Salvador Benedicto is not available, it is an uncontradicted fact that the area comprising Don Salvador municipality, one of the component units of the new province, was derived from the City of San Carlos and from the Municipality of Calatrava, Negros Occidental, and added thereto was a portion of about one-fourth the land area of the town of Murcia, Negros Occidental. It is significant to note the uncontroverted submission of petitioners that the total land area of the entire municipality of Murcia, Negros Occidental is only 322.9 square kilometers (Exh. "D", Rollo, p. 91). One-fourth of this total land area of Murcia that was added to the portions derived from the land area of Calatrava, Negros Occidental and San Carlos City (Negros Occidental) would constitute, therefore, only 80.2 square kilometers. This area of 80.2 square kilometers if then added to 2,685.2 square kilometers, representing the total land area of the Cities of Silay, San Carlos and Cadiz and the Municipalities of E.R. Magalona, Victorias, Manapla, Sagay, Escalante, Taboso and Calatrava, will result in approximately an area of only 2,765.4 square kilometers using as basis the Special Report, Philippines 1980, Population, Land Area and Density: 1970, 1975 and 1980 of the National Census and Statistics Office, Manila (see Exhibit "C", Rollo, p. 90).

No controversion has been made by respondent with respect to the allegations of petitioners that the original provision in the draft legislation, Parliamentary Bill No. 3644, reads:

"SEC. 4. A plebiscite shall be conducted in the areas affected within a period of one hundred and twenty days from the approval of this Act. After the ratification of the creation of the Province of Negros del Norte by a majority of the votes cast in such plebiscite, the President shall appoint the first officials of the new province."

However, when Batas Pambansa Blg. 885 was enacted, there was a significant change in the above provision. The statute, as modified, provides that the requisite plebiscite "shall be conducted in the proposed new province which are the areas affected."

It is this legislative determination limiting the plebiscite exclusively to the cities and towns which would comprise the new province that is assailed by the petitioners as violative of the provisions of our Constitution. Petitioners submit that Sec. 3, ART XI thereof, contemplates a plebiscite that would be held in the unit or units affected by the creation of the new province as a result of the consequent division of and substantial alteration of the boundaries of the existing province. In this instance, the voters in the remaining areas of the province of Negros Occidental should have been allowed to participate in the questioned plebiscite.

Considering that the legality of the plebiscite itself is challenged for non-compliance with constitutional requisites, the 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.

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In the light of the facts and circumstances alluded to by petitioners as attending to the unusually rapid creation of the instant province of Negros del Norte after a swiftly scheduled plebiscite, this Tribunal has the duty to repudiate and discourage the commission of acts which run counter to the mandate of our fundamental law, done by whatever branch of our government. This Court gives notice that it will not look with favor upon those who may be hereafter inclined to ram through all sorts of legislative measures and then implement the same with indecent haste, even if such acts would violate the Constitution and the prevailing statutes of our land. It is illogical to ask that this Tribunal be blind and deaf to protests on the ground that what is already done is done. To such untenable argument the reply would be that, be this so, the Court, nevertheless, still has the duty and right to correct and rectify the wrong brought to its attention.

On the merits of the case.

Aside from the simpler factual issue relative to the land area of the new province of Negros del Norte, the more significant and pivotal issue in the present case revolves around in the interpretation and application in the case at bar of Article XI, Section 3 of the Constitution, which being brief and for convenience, We again quote:

"SEC. 3. No province, city, municipality or barrio may be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the criteria established in the local government code, and subject to the approval by a majority of the votes in a plebiscite in the unit or units affected."

It can be plainly seen that the aforecited constitutional provision makes it imperative that there be first obtained "the approval of a majority of votes in the plebiscite in the unit or units affected" whenever a province is created, divided or merged and there is substantial alteration of the boundaries. It is thus inescapable to conclude that the boundaries of the existing province of Negros Occidental would necessarily be substantially altered by the division of its existing boundaries in order that there can be created the proposed new province of Negros del Norte. Plain and simple logic will demonstrate than that two political units would be affected. The first would be the parent province of Negros Occidental because its boundaries would be substantially altered. The other affected entity would be composed of those in the area subtracted from the mother province to constitute the proposed province of Negros del Norte.

We find no way to reconcile the holding of a plebiscite that should conform to said constitutional requirement but eliminates the participation of either of these two component political units. No amount of rhetorical flourishes can justify exclusion of the parent province in the plebiscite because of an alleged intent on the part of the authors and implementors of the challenged statute to carry out what is claimed to be a mandate to guarantee and promote autonomy of local government units. The alleged good intentions cannot prevail and overrule the cardinal precept that what our Constitution categorically directs to be done or imposes as a requirement must first be observed, respected and complied with. No one should be allowed to pay homage to a supposed fundamental policy intended to guarantee and promote autonomy of local government units but at the same time transgress, ignore and disregard what the Constitution commands in Article XI Section 3 thereof. Respondents would be no different from one who hurries to pray at the temple but then spits at the idol therein.

We find no merit in the submission of the respondents that the petition should be dismissed because the motive and wisdom in enacting the law may not be challenged by petitioners. The principal point raised by the petitioners is not the wisdom and motive in enacting the law but the infringement of the Constitution which is a proper subject of judicial inquiry.

Petitioners' discussion regarding the motives behind the enactment of B.P. Blg. 885 to say the least, are most enlightening and provoking but are factual issues the Court cannot properly pass upon in this case. Mention by petitioners of the unexplained changes or differences in the proposed Parliamentary Bill No. 3644 and the enacted Batas Pambansa Blg. 885; the swift and surreptitious manner of passage and approval of said law; the abrupt scheduling of the plebiscite; the reference to news articles regarding the questionable conduct of the said plebiscite held on January 3, 1986; all serve as interesting reading but are not the decisive matters which should be reckoned in the resolution of this case.

What the Court considers the only significant submissions lending a little support to respondents' case is their reliance on the rulings and pronouncements made by this Court in the case of Governor Zosimo Paredes versus The Honorable Executive Secretary to the President, et al., G.R. No. 55628, March 2, 1984 (128 SCRA 6). In said case relating to a plebiscite held to ratify the creation of a new municipality from existing barangays, this Court upheld the legality of the plebiscite which was participated in exclusively by the people of the barangay that would constitute the new municipality.

This Court is not unmindful of this solitary case alluded to by respondents. What is, however, highly significant are the prefatory statements therein stating that said case is "one of those cases where the discretion of the Court is allowed considerable leeway" and that "there is indeed an element of ambiguity in the use of the expression "unit or units affected." The ruling rendered in said case was based on a claimed prerogative of the Court then to exercise its discretion on the matter. It did not resolve the question of how the pertinent provision of the Constitution should be correctly interpreted.

The ruling in the aforestated case of Paredes vs. The Honorable Executive Secretary, et al. (supra) should not be taken as a doctrinal or compelling precedent when it is acknowledged therein that "it is plausible to assert, as petitioners do, that when certain Barangays are separated from a parent municipality to form a new one, all the voters therein are affected."

It is relevant and most proper to mention that in the aforecited case of Paredes vs. Executive Secretary, invoked by respondents, We find very lucidly expressed the strong dissenting view of Justice Vicente Abad Santos, a distinguished member of this Court, as he therein voiced his opinion, which We hereunder quote:

"2. . . . when the Constitution speaks of "the unit or units affected" it means all of the people of the municipality if the municipality is to be divided such as in the case at bar or all of the people of two or more municipalities if there be a merger. I see no ambiguity in the Constitutional provision."

This dissenting opinion of Justice Vicente Abad Santos is the forerunner of the ruling which We now consider applicable to the case at bar. In the analogous case of Emilio C. Lopez, Jr., versus the Honorable Commission on Elections, L-56022, May 31, 1985, 136 SCRA 633, this dissent was reiterated by Justice Abad Santos as he therein assailed as suffering from a constitutional infirmity a referendum which did not include all the people of Bulacan and Rizal, when such referendum was intended to ascertain if the people of said provinces were willing to give up some of their towns to Metropolitan Manila. His dissenting opinion served as a useful guideline in the instant case.

Opportunity to re-examine the views formerly held in said cases is now afforded the present Court. The reasons in the mentioned cases invoked by respondents herein were formerly considered acceptable because of the views then taken that local autonomy would be better promoted. However, even this consideration no longer retains persuasive value.

The environmental facts in the case before Us readily disclose that the subject matter under consideration is of greater magnitude with concomitant multifarious complicated problems. In the earlier case, what was involved was a division of a barangay which is the smallest political unit in the Local Government Code. Understandably, few and lesser problems are involved. In the case at bar, creation of a new province relates to the largest political unit contemplated in Section 3, Art. XI of the Constitution. To form the new province of Negros del Norte no less than three cities and eight municipalities will be subtracted from the parent province of Negros Occidental. This will result in the removal of approximately 2,768.4 square

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kilometers from the land area of an existing province whose boundaries will be consequently substantially altered. It becomes easy to realize that the consequent effects of the division of the parent province necessarily will affect all the people living in the separate areas of Negros Occidental and the proposed province of Negros del Norte. The economy of the parent province as well as that of the new province will be inevitably affected, either for the better or for the worse. Whatever be the case, either or both of these political groups will be affected and they are, therefore, the unit or units referred to in Section 3 of Article XI of the Constitution which must be included in the plebiscite contemplated therein.

It is a well accepted rule that "in ascertaining the meaning of a particular provision that may give rise to doubts, the intent of the framers and of the people, may be gleaned from the provisions in pari materia." Parliamentary Bill No. 3644 which proposed the creation of the new province of Negros del Norte recites in Sec. 4 thereof that "the plebiscite shall be conducted in the areas affected within a period of one hundred and twenty days from the approval of this Act." As this draft legislation speaks of "areas," what was contemplated evidently are plurality of areas to participate in the plebiscite. Logically, those to be included in such plebiscite would be the people living in the area of the proposed new province and those living in the parent province. This assumption will be consistent with the requirements set forth in the Constitution.

We fail to find any legal basis for the unexplained change made when Parliamentary Bill No. 3644 was enacted into Batas Pambansa Blg. 885 so that it is now provided in said enabling law that the plebiscite "shall be conducted in the proposed new province which are the areas affected." We are not disposed to agree that by mere legislative fiat the unit or units affected referred in the fundamental law can be diminished or restricted by the Batasang Pambansa to cities and municipalities comprising the new province, thereby ignoring the evident reality that there are other people necessarily affected.

In the mind of the Court, the change made by those responsible for the enactment of Batas Pambansa Blg. 885 betrays their own misgivings. They must have entertained apprehensions that by holding the plebiscite only in the areas of the new proposed province, this tactic will be tainted with illegality. In anticipation of a possible strong challenge to the legality of such a plebiscite there was, therefore, deliberately added in the enacted statute a self-serving phrase that the new province constitutes the area affected. Such additional statement serves no useful purpose for the same is misleading, erroneous and far from truth. The remaining portion of the parent province is as much an area affected. The substantial alteration of the boundaries of the parent province, not to mention the other adverse economic effects it might suffer, eloquently argue the points raised by the petitioners.

Petitioners have averred without contradiction that after the creation of Negros del Norte, the province of Negros Occidental would be deprived of the long established Cities of Silay, Cadiz, and San Carlos, as well as the municipality of Victorias. No controversion has been made regarding petitioners' assertion that the areas of the Province of Negros Occidental will be diminished by about 285,656 hectares and it will lose seven of the fifteen sugar mills which contribute to the economy of the whole province. In the language of petitioners, "to create Negros del Norte, the existing territory and political subdivision known as Negros Occidental has to be partitioned and dismembered. What was involved was no 'birth' but "amputation." We agree with the petitioners that in the case of Negros what was involved was a division, a separation; and consequently, as Sec. 3 of Article XI of the Constitution anticipates, a substantial alteration of boundary.

As contended by petitioners,

"Indeed, the terms 'created', 'divided', 'merged', 'abolished' as used in the constitutional provision do not contemplate distinct situation isolated from the mutually exclusive to each other. A province maybe created where an existing province is divided or two provinces merged. Such cases necessarily will involve existing unit or units abolished and definitely the boundary being substantially altered.

"It would thus be inaccurate to state that where an existing political unit is divided or its boundary substantially altered, as the Constitution provides, only some and not all the voters in the whole unit which suffers dismemberment or substantial alteration of its boundary are affected. Rather, the contrary is true."

It is also Our considered view that even hypothetically assuming that the merits of this case can depend on the mere discretion that this Court may exercise, nevertheless, it is the petitioners' case that deserve to be favored.

It is now time for this Court to set aside the equivocations and the indecisive pronouncements in the adverted case of Paredes vs. the Honorable Executive Secretary, et al. (supra). For the reasons already here expressed, We now state that the ruling in the two mentioned cases sanctioning the exclusion of the voters belonging to an existing political unit from which the new political unit will be derived, from participating in the plebiscite conducted for the purpose of determining the formation of another new political unit, is hereby abandoned.

In their supplemental petition, dated January 4, 1986, it is prayed for by petitioners that a writ of mandamus be issued, directing the respondent Commission on Elections, to schedule the holding of another plebiscite at which all the qualified voters of the entire province of Negros Occidental as now existing shall participate and that this Court make a pronouncement that the plebiscite held on January 3, 1986 has no legal effect for being a patent nullity.The Court is prepared to declare the said plebiscite held on January 3, 1986 as null and void and violative of the provisions of Sec. 3, Article XI of the Constitution. The Court is not, however, disposed to direct the conduct of a new plebiscite, because We find no legal basis to do so. With constitutional infirmity attaching to the subject Batas Pambansa Blg. 885 and also because the creation of the new province of Negros del Norte is not in accordance with the criteria established in the Local Government Code, the factual and legal basis for the creation of such new province which should justify the holding of another plebiscite does not exist.

Whatever claim it has to validity and whatever recognition has been gained by the new province of Negros del Norte because of the appointment of the officials thereof, must now be erased. That Negros del Norte is but a legal fiction should be announced. Its existence should be put to an end as quickly as possible, if only to settle the complications currently attending to its creation. As has been manifested, the parent province of Negros del Norte has been impleaded as the defendant in a suit filed by the new Province of Negros del Norte, before the Regional Trial Court of Negros (del Norte), docketed as Civil Case No. 169-C, for the immediate allocation, distribution and transfer of funds by the parent province to the new province, in an amount claimed to be at least P10,000,000.00.

The final nail that puts to rest whatever pretension there is to the legality of the province of Negros del Norte is the significant fact that this created province does not even satisfy the area requirement prescribed in Section 197 of the Local Government Code, as earlier discussed.

It is of course claimed by the respondents in their Comment to the exhibits submitted by the petitioners (Exhs. C and D, Rollo, pp. 19 and 91), that the new province has a territory of 4,019.95 square kilometers, more or less. This assertion is made to negate the proofs submitted, disclosing that the land area of the new province cannot be more than 3,500 square kilometers because its land area would, at most, be only about 2,856 square kilometers, taking into account government statistics relative to the total area of the cities and municipalities constituting Negros del Norte.

Respondents insist that when Section 197 of the Local Government Code speaks of the territory of the province to be created and requires that such territory be at least 3,500 square kilometers, what is contemplated is not only the land area

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but also the land and water over which the said province has jurisdiction and control. It is even the submission of the respondents that in this regard the marginal sea within the three mile limit should be considered in determining the extent of the territory of the new province. Such an interpretation is strained, incorrect, and fallacious.

The last sentence of the first paragraph of Section 197 is most revealing. As so stated therein the "territory need not be contiguous if it comprises two or more islands." The use of the word territory in this particular provision of the Local Government Code and in the very last sentence thereof, clearly, reflects that "territory" as therein used, has reference only to the mass of land area and excludes the waters over which the political unit exercises control.

Said sentence states that the "territory need not be contiguous." Contiguous means (a) in physical contact; (b) touching along all or most of one side; (c) near, text, or adjacent (Webster's New World Dictionary, 1972 Ed., p. 307).

"Contiguous", when employed as an adjective, as in the above sentence, is only used when it describes physical contact, or a touching of sides of two solid masses of matter. The meaning of particular terms in a statute may be ascertained by reference to words associated with or related to them in the statute (Animal Rescue League vs. Assessors, 138 A.L.R., p. 110). Therefore, in the context of the sentence above, what need not be "contiguous" is the "territory" ---- the physical mass of land area. There would arise no need for the legislators to use the word contiguous if they had intended that the term "territory" embrace not only land area but also territorial waters, It can be safely concluded that the word territory in the first paragraph of Section 197 is meant to be synonymous with "land area" only. The words and phrases used in a statute should be given the meaning intended by the legislature (82 C.J.S., p. 636). The sense in which the words are used furnished the rule of construction (In re Winton Lumber Co., 63 p. 2d., p. 664).

The distinction between "territory" and "land area" which respondents make is an artificial or strained construction of the disputed provision whereby the words of the statute are arrested from their plain and obvious meaning and made to bear an entirely different meaning to justify an absurd or unjust result. The plain meaning in the language in a statute is the safest guide to follow in construing the statute. A construction based on a forced or artificial meaning of its words and out of harmony of the statutory scheme is not to be favored (Helvering vs. Hutchings, 85 L. Ed., p. 909).

It would be rather preposterous to maintain that a province with a small land area but which has a long, narrow, extended coast line, (such as La Union province) can be said to have a larger territory than a land-locked province (such as Ifugao or Benguet) whose land area manifestly exceeds the province first mentioned.

Allegations have been made that the enactment of the questioned state was marred by "dirty tricks", in the introduction and passing of Parliamentary Bill No. 3644 "in secret haste" pursuant to sinister designs to achieve "pure and simple gerrymandering"; "that recent happenings more than amply demonstrate that far from guaranteeing its autonomy it (Negros del Norte) has become the fiefdom of a local strongman" (Rollo, p. 43; parenthesis supplied).

It is not for this Court to affirm or reject such matters not only because the merits of this case can be resolved without need of ascertaining the real motives and wisdom in the making of the questioned law. No proper challenge on those grounds can also be made by petitioners in this proceeding. Neither may this Court venture to guess the motives or wisdom in the exercise of legislative powers. Repudiation of improper or unwise actions taken by tools of a political machinery rests ultimately, as recent events have shown, on the electorate and the power of a vigilant people.

Petitioners herein deserve and should receive the gratitude of the people of the Province of Negros Occidental and even by our Nation. Commendable is the patriotism displayed by them in daring to institute this case in order to preserve the continued existence of their historic province. They were inspired undoubtedly by their faithful commitment to our Constitution which they wish to be respected and obeyed. Despite the setbacks and the hardships which petitioners aver confronted them, they valiantly and unfalteringly pursued a worthy cause. A happy destiny for our Nation is assured as long as among our people there would be exemplary citizens such as the petitioners herein.

WHEREFORE, Batas Pambansa Blg. 885 is hereby declared unconstitutional. The proclamation of the new province of Negros del Norte, as well as the appointment of the officials thereof are also declared null and void.

HON. ROY A. PADILLA, JR., In his capacity as Governor of the Province of Camarines Norte, petitioner, vs. COMMISSION ON ELECTIONS, respondent.1992 Oct 19, G.R. No. 103328

ROMERO, J.:Pursuant to Republic Act 7155, the Commission on Elections promulgated on November 13, 1991, Resolution No. 2312 which reads.

"WHEREAS, Republic Act No. 7155 approved on September 6, 1991 creates the Municipality of Tulay-Na-Lupa in the Province of Camarines Norte to be composed of Barangays Tulay-Na-Lupa, Lugui, San Antonio, Mabilo I, Napaod, Benit, Bayan-Bayan, Matanlang, Pag-Asa, Maot, and Calabasa, all in the Municipality of Labo, same province.

WHEREAS, under Section 10, Article X of the 1987 Constitution 1 the creation of a municipality shall be subject to approval by a majority of votes cast in a plebiscite in the political units directly affected, and pursuant to Section 134 of the Local Government Code (Batas Pambansa Blg. 337) 2 said plebiscite shall be conducted by the Commission on Elections;

WHEREAS, Section 6 of said Republic Act No. 7155 provides that the expenses in holding the plebiscite shall be taken out of the Contingent Fund under the current fiscal year appropriations;

NOW, THEREFORE, BE IT RESOLVED, as the Commission hereby resolves to promulgated (sic) the following guidelines to govern the conduct of said plebiscite:

1. The plebiscite shall be held on December 15, 1991, in the areas or units affected, namely the barangays comprising the proposed Municipality of Tulay-Na-Lupa and the remaining areas of the mother Municipality of Labo, Camarines Norte (Tan vs. COMELEC, G.R. No. 73155, July 11, 1986).

xxx xxx xxx"

In the plebiscite held on December 15, 1991 throughout the Municipality of Labo, only 2,890 votes favored its creation while 3,439 voters voted against the creation of the Municipality of Tulay-Na-Lupa. Consequently, the day after the political exercise, the Plebiscite Board of Canvassers declared the rejection and disapproval of the independent Municipality of Tulay-Na-Lupa by a majority of voters. 3

Thus, in this special civil action of certiorari, petitioner as Governor of Camarines Norte, seeks to set aside the plebiscite conducted on December 15, 1991 throughout the Municipality of Labo and prays that a new plebiscite be undertaken as provided by RA 7155. It is the contention of petitioner that the plebiscite was a complete failure and that the results obtained were invalid and illegal because the plebiscite, as mandated by COMELEC Resolution No. 2312 should have been conducted only in the political unit or units affected, i.e. the 12 barangays comprising the new Municipality of Tulay-Na-Lupa

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namely Tulay-Na-Lupa, Lugui, San Antonio, Mabilo I, Napaod, Benit, Bayan-Bayan, Matanlang, Pag-asa, Maot, and Calabasa. Petitioner stresses that the plebiscite should not have included the remaining area of the mother unit of the Municipality of Labo, Camarines Norte. 4

In support of his stand, petitioner argues that with the approval and ratification of the 1987 Constitution, particularly Article X, Section 10, the ruling set forth in Tan v. COMELEC 5 relied upon by respondent COMELEC is now pass, thus reinstating the case of Paredes v. Executive Secretary 6 which held that where a local unit is to be segregated from a parent unit, only the voters of the unit to be segrated should be included in the plebiscite. 7

Accordingly, the issue in this case is whether or not respondent COMELEC committed grave abuse of discretion in promulgating Resolution No. 2312 and, consequently, whether or not the plebiscite conducted in the areas comprising the proposed Municipality of Tulay-Na-Lupa and the remaining areas of the mother Municipality of Labo is valid.

We rule that respondent COMELEC did not commit grave abuse in promulgating Resolution No. 2312 and that the plebiscite, which rejected the creation of the proposed Municipality of Tulay-Na-Lupa, is valid.

Petitioner's contention that our ruling in Tan v. COMELEC has been superseded with the ratification of the 1987 Constitution, thus reinstating our earlier ruling in Paredes v. COMELEC is untenable. Petitioner opines that since Tan v. COMELEC was based on Section 3 of Article XI of the 1973 Constitution 8 our ruling in said case is no longer applicable under Section 10 of Article X of the 1987 Constitution, especially since the latter provision deleted the words "unit or."

We do not agree. The deletion of the phrase "unit or" in Section 10, Article X of the 1987 Constitution from its precursor, Section 3 of Article XI of the 1973 Constitution has not affected our ruling in Tan v. COMELEC as explained by then CONCOM Commissioner, now my distinguished colleague, Associate Justice Hilario Davide, during the debates in the 1986 Constitutional Commission, to wit:

Mr. Maambong: While we have already approved the deletion of "unit or," I would like to inform the Committee that under the formulation in the present Local Government Code, the words used are actually "political unit or units." However, I do not know the implication of the use of these words. Maybe there will be no substantial difference, but I just want to inform the Committee about this.

Mr. Nolledo: Can we not adhere to the original "unit or units"? will there be no objection on the part of the two Gentlemen from the floor?

Mr. Davide: I would object. I precisely asked for the deletion of the words "unit or" because in the plebiscite to be conducted, it must involve all the units affected. If it is the creation of a barangay, the municipality itself must participate in the plebiscite because it is affected. It would mean a loss of a territory. 9 mphasis supplied)

It stands to reason that when the law states that the plebiscite shall be conducted "in the political units directly affected," it means that residents of the political entity who would be economically dislocated by the separation of a portion thereof have a right to vote in said plebiscite. Evidently, what is contemplated by the phrase "political units directly affected," is the plurality of political units which would participate in the plebiscite. 10 Logically, those to be included in such political areas are the inhabitants of the 12 barangays of the proposed Municipality of Tulay-Na-Lupa as well as those living in the parent Municipality of Labo, Camarines Norte. Thus, we conclude that respondent COMELEC did not commit grave abuse of discretion in promulgating Resolution No. 2312.

WHEREFORE, the instant petition is hereby DISMISSED.

SO ORDERED.

SIMPLICIO C. GRIÑO, ARTURO GADIAN, THE LABAN NG DEMOKRATIKONG PILIPINO, EVELYN C. JIZ AND PERLA ZULUETA, petitioners, vs. COMMISSION ON ELECTIONS, ILOILO PROVINCIAL BOARD OF CANVASSERS, respondents.1992 Sep 4, G.R. No. 105120

MEDIALDEA, J.:This petition for certiorari under Rule 65 of the Rules of Court assails the act of respondent Commission on Elections (Comelec) of disallowing the voters of the sub-province of Guimaras, to vote for the governor, vice-governor of the province of Iloilo and the members of the Sangguniang Panlalawigan in the second district of the province, in the recently conducted May 11, 1992 local and national elections.

This petition was filed by the Laban ng Demokratikong Pilipino (LDP), a duly registered and accredited political party, through its Iloilo Provincial Chairman, co-petitioner, Simplicio Griño. Griño was also the official candidate of the party for the position of governor of Iloilo. The other co-petitioner, Arturo Gadian, claimed to be a registered voter of the municipality of Buenavista, sub-province of Guimaras, Iloilo.

The sub-province of Guimaras is composed of three municipalities, namely, Buenavista, Jordan and Nueva Valencia, with a combined voting population of fifty thousand (50,000), more or less. These three municipalities also constitute a part of the second district of Iloilo, with the municipalities of Pavia, Leganes, Sta. Barbara, New Lucena, Zarraga, Alimodian, Leon and San Miguel composing the remaining municipalities constituting the entire second district. In the previous elections, the voters from the municipalities comprising the sub-province of Guimaras were allowed to vote for the provincial officials of the entire province of Iloilo.

On January 1, 1992, the 1991 Local Government Code came into effect (Sec. 536, R.A. 7160). Section 462 thereof called for the conversion of existing subprovinces into regular provinces upon approval by a majority of the votes cast in a plebiscite to be held in the areas directly affected by such conversion. Said section likewise directed the holding of the said plebiscite simultaneously with the national elections following the effectivity of R.A. 7160.

The first national elections conducted after the effectivity of R.A. 7160 was the recently concluded May 11, 1992 elections which was also held simultaneously with the local elections. Pursuant to Section 462 of R.A. 7160, the Comelec conducted a plebiscite for the conversion of Guimaras into a regular province simultaneously with the May 11, 1992 elections.

On April 15, 1992, the Comelec issued Resolution No. 2410 providing for the rules and regulations governing the plebiscite to decide the question on the conversion of the sub-province of Guimaras into a regular province. Section 3 thereof provided

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that all registered voters of Iloilo, except Iloilo City, and in the sub-province of Guimaras, who are qualified to vote for the provincial officials thereof in the May 11, 1992 elections, were qualified to vote in the plebiscite. The ballots used for the three (3) municipalities of the sub-province of Guimaras and the entire province of Iloilo were provided with appropriate spaces at the bottom for this question:

PLEBISCITE QUESTIONDo you vote for the approval of the conversion of the sub-province pursuant to Section 462 of Republic Act No. 7160?

Yes NoIt was however, observed by the herein petitioners, that the ballots distributed by the Comelec for use in the three (3) municipalities of Guimaras did not contain any space or provision for the election of the governor, vice-governor and the members of the Sangguniang Panlalawigan representing the second district of Iloilo, of which the sub-province of Guimaras was a part.

On May 13, 1992, or two (2) days after the election was conducted, herein petitioners filed the instant petition far certiorari. Petitioners alleged in substance that respondent Comelec acted without jurisdiction and with grave abuse of discretion when it disallowed the voters of the sub-province of Guimaras from voting for the governor and vice governor of Iloilo and the members of the Sangguniang Panlalawigan representing the second district of Iloilo. Petitioners further alleged that when R.A. 7160 was passed providing specifically for the creation of existing sub-provinces into a full-fledged province, it do not specifically provide that the voters of the subprovince shall no longer be allowed to vote for the provincial officials who, in case of a vote against its conversion into a regular province, would continue to represent said sub-province. Furthermore, respondent Commission on Elections failed to inform the candidates and the voters of such disenfranchisement.

On May 14, 1992, We issued a temporary restraining order enjoining the Commission on Elections and the Provincial Board of Canvassers of Iloilo City to cease and desist from canvassing and proclaiming the results of the election for the office of the governor, vice-governor and members of the Sangguniang Panlalawigan of Iloilo. We also ordered the public respondents to file their comments.

On May 29, 1992, public respondents filed their comment through the Office of the Solicitor General. On June 9, 1992, the petitioners filed their reply to public respondent's comment.

On June 17, 1992, We lifted the temporary restraining order.

On June 22, 1992, Perla S. Zulueta, who claimed to be the official candidate of the Nacionalista Party for the office of the governor of the Province of Iloilo and who allegedly ranked number two behind the frontrunner Arthur Defensor, filed a motion for leave to intervene and for admission of her petition in intervention which was attached to the motion. Zulueta alleged the same allegations as those presented in the main petition and claimed that she has an interest in the matter of the main petition because the same is crucial and determinative of whether or not she would win for the office of governor. We admit herein the said petition for intervention and resolve the issue she raised therein in this decision considering that it is the same issue raised in the main petition.

Still another motion for intervention dated June 25, 1992 was filed by Rodolfo Legaspi and Richard Garin, Juanito Acanto and Alberto Javellana, Grace Fernandez and Pablito Araneta, and Nerio Salcedo and Antonio Teodeco, candidates for members of the Sangguniang Panlalawigan representing the first, third, fourth and fifth districts of Iloilo, respectively. Apparently, unaware of the lifting of the restraining order, they alleged in their motion that they were unduly prejudiced by the temporary restraining order issued by this Court on May 14, 1992 because the issue presented in the main petition had no direct effect on them or their election and they prayed for the lifting of the said restraining order.

On July 9, 1992, We issued a resolution denying the motion for intervention filed by Legaspi, Garin, Acanto, Javellana, Fernandez, Araneta, Salcedo and Tedoco because We had previously lifted the temporary restraining order and considering that they were not directly affected by the principal issue in the main petition (p. 126, Rollo) which involved only the positions of governor, vice-governor and members of the Sangguniang Panlalawigan of the second district of Iloilo.

On July 8, 1992, the petitioners filed another motion to admit Amended Petition with the Amended Petition attached thereto. The original petition was amended to include as petitioners, Evelyn C. Jiz another candidate for member of the Sangguniang Panlalawigan of the second district of Iloilo.

The pertinent provision affecting the principal issue in this case is Section 462 of the 1991 Local Government Code (R.A. 7160). It provides in full:

"SEC. 462. Existing Subprovinces. 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 sub-provinces 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.

"The new legislative districts created as a result of such conversion shall continue to be represented in Congress by the duly elected representatives of the original districts out of which said new provinces or districts were created until their own representatives shall have been elected in the next regular congressional elections and qualified.

"The incumbent elected officials of the said sub-provinces converted into regular provinces shall continue to hold office until June 30, 1992. Any vacancy occurring in the offices occupied by said incumbent elected officials, or resulting from expiration of their terms of office in case of a negative vote in the plebiscite results, shall be filled by appointment by the President. The appointee shall hold office until their successors shall have been elected in the regular local elections following the plebiscite mentioned herein and qualified. After effectivity of such conversion, the President shall fill up the position of governor of the newly created province through appointment if none has yet been appointed to the same as hereinbefore provided, and shall also appoint a vice-governor and the other members of the sangguniang panlalawigan, all of whom shall likewise hold office until their successors shall have been elected in the next regular local elections and qualified.

"All qualified appointive officials and employees in the career service of the said sub-provinces at the time of their conversion into regular provinces shall continue in office in accordance with the civil service law, rules and regulations."

We have carefully examined this section of the 1991 Local Government Code and We observed its incompleteness and inadequacy to govern all or any eventuality. It should be remembered that the law should take into consideration the decision of the populace to be affected by a change in its political set-up. As it is worded, Section 462 completely addresses an eventuality where the people of both the original district and the people of the new district to be created agree to the proposed creation of the latter. The law provides that, "After the effectivity of such conversion, the President shall fill up the position of governor of the newly created province through appointment, if none has yet been appointed to the same (as hereinafter provided), and shall also appoint a vice-governor and the other members of the sangguniang panlalawigan . . ."

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But suppose the proposed-conversion of a subprovince is rejected by those affected by such conversion, what does the law say? The law states only the following in case of a negative vote: "The incumbent elected officials of said sub-provinces converted into regular provinces shall continue to hold office until June 30, 1992. Any vacancy occurring in the offices occupied by said incumbent elected officials, or resulting from expiration of their terms of office in case a negative vote in the plebiscite results, shall be filled by appointment by the President. The appointee shall hold office until their successors shall have been elected in the regular local elections following the plebiscite mentioned herein and qualified. . . ." Whatever incumbent elective positions exist under the present set-up, it appears that in case of a negative vote, these sub-provincial positions shall be filled by appointment of the President. The makers of the law however, failed to foresee that in the event the negative vote prevails naturally, the sub-province shall continue to be a part of the original province and continue to be represented by the provincial officials of the original province. The law is silent an whether the voters of the sub-province proposed to be converted into a regular province shall no longer be allowed to vote for the provincial officials in the election held simultaneously with the plebiscite. If the voters of Guimaras were allowed to vote for the provincial officials of Iloilo and the "Yes" vote in the plebiscite prevailed, these votes shall not be considered. If however, the "No" vote prevailed and the voters of Guimaras were allowed to vote for the provincial officials of Iloilo, their votes shall be taken into consideration. The Commission on Elections, being the agency directed to conduct the plebiscite decided not to let the voters of Guimaras vote for the provincial officials. The Commission was under mistaken presumption that under Section 462 of the 1991 Local Government Code, whether or not the conversion of Guimaras into a regular province is ratified by the people in a plebiscite, the President will fill up the positions of provincial officials through appointment until their successors shall have been elected and qualified. The law however is clear that in case of a negative vote, the elected officials of the sub-province only shall be appointed by the President. The law did not provide that the President shall also appoint provincial officials of the sub-province because, by a negative vote, the people of the sub-province of Guimaras shall continue to be represented by the provincial officials of the province of Iloilo elected at large by registered voters of Iloilo province including the sub-province of Guimaras.

However, it would serve no useful purpose if We undo all that the Commission on Elections had done in that plebiscite. It is more relevant to deal with the facts actually obtaining in the instant case. In the recently conducted plebiscite, the voters of the subprovince of Iloilo overwhelmingly voted for the approval of the conversion of Guimaras into a regular province. The total "Yes" votes was 283,224 as against 42,524 "No" votes (p. 34, Rollo). In this event, the President shall appoint, as in fact he already did appoint according to newspaper reports, the governor for the newly created province of Guimaras, and he shall also appoint a vice-governor and the member of the sangguniang panlalawigan in accordance with the third paragraph of Section 462 of R.A. 6170. The then sub-province of Guimaras is now a regular province, politically independent from the province of Iloilo. There is no more legal basis for the calling of a special election for the municipalities of Buenavista, Jordan and Nueva Valencia for the purpose of electing the governor and vice-governor of Iloilo and the members of the Sangguniang Panlalawigan of the second district thereof.

ACCORDINGLY, the petition is DISMISSED for being moot and academic.

SENATOR HEHERSON T. ALVAREZ, SENATOR JOSE D. LINA, JR., MR. NICASIO B. BAUTISTA, MR. JESUS P. GONZAGA, MR. SOLOMON D. MAYLEM, LEONORA C. MEDINA, CASIANO S. ALIPON, petitioners, vs. HON. TEOFISTO T. GUINGONA, JR., in his capacity as Executive Secretary, HON. RAFAEL ALUNAN, in his capacity as Secretary of Local Government, HON. SALVADOR ENRIQUEZ, in his capacity as Secretary of Budget, THE COMMISSION ON AUDIT, HON. JOSE MIRANDA, in his capacity as Municipal Mayor of Santiago and HON. CHARITO MANUFAY, HON. VICTORINO MIRANDA, JR., HON. ARTEMIO ALVAREZ, HON. DANILO VERGARA, HON. PETER DE JESUS, HON. NELIA NATIVIDAD, HON. CELSO CALEON and HON. ABEL MUSNGI, in their capacity as SANGGUNIANG BAYAN MEMBERS, MR. RODRIGO L. SANTOS, in his capacity as Municipal Treasurer, and ATTY. ALFREDO S. DIRIGE, in his capacity as Municipal Administrator, respondents.1996 Jan 31, G.R. No. 118303

HERMOSISIMA, JR., J.:Of main concern to the petitioners is whether Republic Act No. 7720, just recently passed by Congress and signed by the President into law, is constitutionally infirm.

Indeed, in this Petition for Prohibition with prayer for Temporary Restraining Order and Preliminary Prohibitory Injunction, petitioners assail the validity of Republic Act No. 7720, entitled, "An Act Converting the Municipality of Santiago, Isabela into an Independent Component City to be known as the City of Santiago," mainly because the Act allegedly did not originate exclusively in the House of Representatives as mandated by Section 24, Article VI of the 1987 Constitution.

Also, petitioners claim that the Municipality of Santiago has not met the minimum average annual income required under Section 450 of the Local Government Code of 1991 in order to be converted into a component city.

Undisputed is the following chronicle of the metamorphosis of House Bill No. 8817 into Republic Act No. 7720:

On April 18, 1993, HB No. 8817, entitled "An Act Converting the Municipality of Santiago into an Independent Component City to be known as the City of Santiago," was filed in the House of Representatives with Representative Antonio Abaya as principal author. Other sponsors included Representatives Ciriaco Alfelor, Rodolfo Albano, Santiago Respicio and Faustino Dy. The bill was referred to the House Committee on Local Government and the House Committee on Appropriations on May 5, 1993.

On May 19, 1993, June 1, 1993, November 28, 1993, and December 1, 1993, public hearings on HB No. 8817 were conducted by the House Committee on Local Government. The committee submitted to the House a favorable report, with amendments, on December 9, 1993.

On December 13, 1993, HB No. 8817 was passed by the House of Representatives on Second Reading and was approved on Third Reading on December 17, 1993. On January 28, 1994, HB No. 8817 was transmitted to the Senate.

Meanwhile, a counterpart of HB No. 8817, Senate Bill No. 1243, entitled, "An Act Converting the Municipality of Santiago into an Independent Component City to be Known as the City of Santiago," was filed in the Senate. It was introduced by Senator Vicente Sotto III, as principal sponsor, on May 19, 1993. This was just after the House of Representatives had conducted its first public hearing on HB No. 8817.

On February 23, 1994, or a little less than a month after HB No. 8817 was transmitted to the Senate, the Senate Committee on Local Government conducted public hearings on SB No. 1243. On March 1, 1994, the said committee submitted Committee Report No. 378 on HB No. 8817, with the recommendation that it be approved without amendment, taking into consideration the reality that H.B. No. 8817 was on all fours with SB No. 1243. Senator Heherson T. Alvarez, one of the herein petitioners, indicated his approval thereto by signing said report as member of the Committee on Local Government.

On March 3, 1994, Committee Report No. 378 was passed by the Senate on Second Reading and was approved on Third Reading on March 14, 1994. On March 22, 1994, the House of Representatives, upon being apprised of the action of the Senate, approved the amendments proposed by the Senate.

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The enrolled bill, submitted to the President on April 12, 1994, was signed by the Chief Executive on May 5, 1994 as Republic Act No. 7720. When a plebiscite on the Act was held on July 13, 1994, a great majority of the registered voters of Santiago voted in favor of the conversion of Santiago into a city.

The question as to the validity of Republic Act No. 7720 hinges on the following twin issues: (I) Whether or not the Internal Revenue Allotments (IRAs) are to be included in the computation of the average annual income of a municipality for purposes of its conversion into an independent component city, and (II) Whether or not, considering that the Senate passed SB No. 1243, its own version of HB No. 8817, Republic Act No. 7720 can be said to have originated in the House of Representatives.

IThe annual income of a localgovernment unit includes the IRAs

Petitioners claim that Santiago could not qualify into a component city because its average annual income for the last two (2) consecutive years based on 1991 constant prices falls below the required annual income of Twenty Million Pesos (P20,000,000.00) for its conversion into a city, petitioners having computed Santiago's average annual income in the following manner:

Total income (at 1991 constant prices) for 1991 P 20,379,057.07 Total income (at 1991 constant prices) for 1992 P 21,570,106.87 Total income for 1991 and 1992 P 41,949,163.94

Minus:

IRAs for 1991 and 1992 P 15,730,043.00 Total income for 1991 and 1992 P 26,219,120.94 Average Annual Income P 13,109,560.47 =============

By dividing the total income of Santiago for calendar years 1991 and 1992, after deducting the IRAs, the average annual income arrived at would only be P13,109,560.47 based on the 1991 constant prices. Thus, petitioners claim that Santiago's income is far below the aforesaid Twenty Million Pesos average annual income requirement.

The certification issued by the Bureau of Local Government Finance of the Department of Finance, which indicates Santiago's average annual income to be P20,974,581.97, is allegedly not accurate as the Internal Revenue Allotments were not excluded from the computation. Petitioners asseverate that the IRAs are not actually income but transfers and/or budgetary aid from the national government and that they fluctuate, increase or decrease, depending on factors like population, land and equal sharing.

In this regard, we hold that petitioners asseverations are untenable because Internal Revenue Allotments form part of the income of Local Government Units.

It is true that for a municipality to be converted into a component city, it must, among others, have an average annual income of at least Twenty Million Pesos for the last two (2) consecutive years based on 1991 constant prices. 1 Such income must be duly certified by the Department of Finance.

Resolution of the controversy regarding compliance by the Municipality of Santiago with the aforecited income requirement hinges on a correlative and contextual explication of the meaning of internal revenue allotments (IRAs) vis-a-vis the notion of income of a local government unit and the principles of local autonomy and decentralization underlying the institutionalization and intensified empowerment of the local government system.

A Local Government Unit is a political subdivision of the State which is constituted by law and possessed of substantial control over its own affairs. 3 Remaining to be an intra sovereign subdivision of one sovereign nation, but not intended, however, to be an imperium in imperio, 4 the local government unit is autonomous in the sense that it is given more powers, authority, responsibilities and resources. 5 Power which used to be highly centralized in Manila, is thereby deconcentrated, enabling especially the peripheral local government units to develop not only at their own pace and discretion but also with their own resources and assets.

The practical side to development through a decentralized local government system certainly concerns the matter of financial resources. With its broadened powers and increased responsibilities, a local government unit must now operate on a much wider scale. More extensive operations, in turn, entail more expenses. Understandably, the vesting of duty, responsibility and accountability in every local government unit is accompanied with a provision for reasonably adequate resources to discharge its powers and effectively carry out its functions. 7 Availment of such resources is effectuated through the vesting in every local government unit of (1) the right to create and broaden its own source of revenue; (2) the right to be allocated a just share in national taxes, such share being in the form of internal revenue allotments (IRAs); and (3) the right to be given its equitable share in the proceeds of the utilization and development of the national wealth, if any, within its territorial boundaries. 8

The funds generated from local taxes, IRAs and national wealth utilization proceeds accrue to the general fund of the local government and are used to finance its operations subject to specified modes of spending the same as provided for in the Local Government Code and its implementing rules and regulations. For instance, not less than twenty percent (20%) of the IRAs must be set aside for local development projects. 9 As such, for purposes of budget preparation, which budget should reflect the estimates of the income of the local government unit, among others, the IRAs and the share in the national wealth utilization proceeds are considered items of income. This is as it should be, since income is defined in the Local Government Code to be all revenues and receipts collected or received forming the gross accretions of funds of the local government unit. 10

The IRAs are items of income because they form part of the gross accretion of the funds of the local government unit. The IRAs regularly and automatically accrue to the local treasury without need of any further action on the part of the local government unit. 11 They thus constitute income which the local government can invariably rely upon as the source of much needed funds.

For purposes of converting the Municipality of Santiago into a city, the Department of Finance certified, among others, that the municipality had an average annual income of at least Twenty Million Pesos for the last two (2) consecutive years based on 1991 constant prices. This, the Department of Finance did after including the IRAs in its computation of said average annual income.

Furthermore, Section 450 (c) of the Local Government Code provides that "the average annual income shall include the income accruing to the general fund, exclusive of special funds, transfers, and non-recurring income." To reiterate, IRAs are a regular, recurring item of income; nil is there a basis, too, to classify the same as a special fund or transfer, since IRAs have a technical definition and meaning all its own as used in the Local Government Code that unequivocally makes it

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distinct from special funds or transfers referred to when the Code speaks of "funding support from the national government, its instrumentalities and government-owned-or-controlled corporations". 12

Thus, Department of Finance Order No. 35-93 13 correctly encapsulizes the full import of the above disquisition when it defined ANNUAL INCOME to be "revenues and receipts realized by provinces, cities and municipalities from regular sources of the Local General Fund including the internal revenue allotment and other shares provided for in Sections 284, 290 and 291 of the Code, but exclusive of non-recurring receipts, such as other national aids, grants, financial assistance, loan proceeds, sales of fixed assets, and similar others". 14 Such order, constituting executive or contemporaneous construction of a statute by an administrative agency charged with the task of interpreting and applying the same, is entitled to full respect and should be accorded great weight by the courts, unless such construction is clearly shown to be in sharp conflict with the Constitution, the governing statute, or other laws. 15

IIIn the enactment of RA No. 7720,there was compliance with Section 24,Article VI of the 1987 Constitution

Although a bill of local application like HB No. 8817 should, by constitutional prescription, 16 originate exclusively in the House of Representatives, the claim of petitioners that Republic Act No. 7720 did not originate exclusively in the House of Representatives because a bill of the same import, SB No. 1243, was passed in the Senate, is untenable because it cannot be denied that HB No. 8817 was filed in the House of Representatives first before SB No. 1243 was filed in the Senate. Petitioners themselves cannot disavow their own admission that HB No. 8817 was filed on April 18, 1993 while SB No. 1243 was filed on May 19, 1993. The filing of HB No. 8817 was thus precursive not only of the said Act in question but also of SB No. 1243. Thus, HB No. 8817, was the bill that initiated the legislative process that culminated in the enactment of Republic Act No. 7720. No violation of Section 24, Article VI, of the 1987 Constitution is perceptible under the circumstances attending the instant controversy.

Furthermore, petitioners themselves acknowledge that HB No. 8817 was already approved on Third Reading and duly transmitted to the Senate when the Senate Committee on Local Government conducted its public hearing on HB No. 8817. HB No. 8817 was approved on the Third Reading on December 17, 1993 and transmitted to the Senate on January 28, 1994; a little less than a month thereafter, or on February 23, 1994, the Senate Committee on Local Government conducted public hearings on SB No. 1243. Clearly, the Senate held in abeyance any action on SB No. 1243 until it received HB No. 8817, already approved on the Third Reading, from the House of Representatives. The filing in the Senate of a substitute bill in anticipation of its receipt of the bill from the House, does not contravene the constitutional requirement that a bill of local application should originate in the House of Representatives, for as long as the Senate does not act thereupon until it receives the House bill.

We have already addressed this issue in the case of Tolentino vs. Secretary of Finance. 17 There, on the matter of the Expanded Value Added Tax (EVAT) Law, which, as a revenue bill, is nonetheless constitutionally required to originate exclusively in the House of Representatives, we explained:

. . . To begin with, it is not the law but the revenue bill which is required by the Constitution to "originate exclusively" in the House of Representatives. It is important to emphasize this, because a bill originating in the House may undergo such extensive changes in the Senate that the result may be a rewriting of the whole. . . . as a result of the Senate action, a distinct bill may be produced. To insist that a revenue statute and not only the bill which initiated the legislative process culminating in the enactment of the law must substantially be the same as the House bill would be to deny the Senate's power not only to "concur with amendments" but also to "propose amendments." It would be to violate the coequality of legislative power of the two houses of Congress and in fact make the House superior to the Senate.

Xxx xxx xxx

It is insisted, however, that S. No. 1630 was passed not in substitution of H. No. 11197 but of another Senate bill (S. No. 1129) earlier filed and that what the Senate did was merely to "take [H. No. 11197] into consideration" in enacting S. No. 1630. There is really no difference between the Senate preserving H. No. 11197 up to the enacting clause and then writing its own version following the enacting clause (which, it would seem petitioners admit is an amendment by substitution), and, on the other hand, separately presenting a bill of its own on the same subject matter. In either case the result are two bills on the same subject.

Indeed, what the Constitution simply means is that the initiative for filing revenue, tariff, or tax bills, bills authorizing an increase of the public debt, private bills and bills of local application must come from the House of Representatives on the theory that, elected as they are from the districts, the members of the House can be expected to be more sensitive to the local needs and problems. On the other hand, the senators, who are elected at large, are expected to approach the same problems from the national perspective. Both views are thereby made to bear on the enactment of such laws.

Nor does the Constitution prohibit the filing in the Senate of a substitute bill in anticipation of its receipt of the bill from the House, so long as action by the Senate as a body is withheld pending receipt of the House bill. . . . 18

IIIEvery law, including RA No. 7720,has in its favor the presumptionof constitutionality

It is a well-entrenched jurisprudential rule that on the side of every law lies the presumption of constitutionality. 19 Consequently, for RA No. 7720 to be nullified, it must be shown that there is a clear and unequivocal breach of the Constitution, not merely a doubtful and equivocal one; in other words, the grounds for nullity must be clear and beyond reasonable doubt. 20 Those who petition this court to declare a law to be unconstitutional must clearly and fully establish the basis that will justify such a declaration; otherwise, their petition must fail. Taking into consideration the justification of our stand on the immediately preceding ground raised by petitioners to challenge the constitutionality of RA No. 7720, the Court stands on the holding that petitioners have failed to overcome the presumption. The dismissal of this petition is, therefore, inevitable.

WHEREFORE, the instant petition is DISMISSED for lack of merit with costs against petitioners.

LEAGUE OF CITIES OF THE PHILIPPINES (LCP) represented by LCP National President JERRY P. TREÑAS, CITY OF ILOILO represented by MAYOR JERRY P. TREÑAS, CITY OF CALBAYOG represented by MAYOR MEL SENEN S. SARMIENTO, and JERRY P. TREÑAS in his personal capacity as taxpayer, Petitioners, versus COMMISSION ON ELECTIONS; MUNICIPALITY OF BAYBAY, PROVINCE OF LEYTE; MUNICIPALITY OF BOGO, PROVINCE OF CEBU; MUNICIPALITY OF CATBALOGAN, PROVINCE OF WESTERN SAMAR; MUNICIPALITY OF TANDAG, PROVINCE OF SURIGAO DEL SUR; MUNICIPALITY OF BORONGAN, PROVINCE OF EASTERN SAMAR; and MUNICIPALITY OF TAYABAS, PROVINCE OF QUEZON, Respondents. / CITY OF TARLAC, CITY OF SANTIAGO, CITY OF IRIGA, CITY OF LIGAO, CITY OF LEGAZPI, CITY OF TAGAYTAY, CITY OF SURIGAO, CITY OF BAYAWAN, CITY OF SILAY, CITY OF GENERAL SANTOS, CITY OF ZAMBOANGA, CITY OF GINGOOG, CITY OF CAUAYAN, CITY OF PAGADIAN, CITY OF SAN CARLOS, CITY OF SAN FERNANDO, CITY OF TACURONG, CITY OF TANGUB, CITY OF OROQUIETA, CITY OF URDANETA, CITY OF VICTORIAS, CITY OF CALAPAN, CITY OF HIMAMAYLAN, CITY OF BATANGAS, CITY OF BAIS, CITY OF CADIZ, and CITY OF TAGUM, Petitioners-In-Intervention.

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2008 Nov 18

DISSENTING OPINION

REYES, R.T., J.:TODAY, the majority on a 6-5 voting has choked the aspiration of the 16 respondent municipalities in becoming cities by declaring their cityhood laws[1] unconstitutional. For the first time, I am compelled to submit a respectful dissent.

The FactsBetween July 1998 and June 2001, during the Eleventh Congress, a total of fifty-seven (57) bills seeking the conversion of numerous municipalities into component cities were filed before the House of Representatives.[2] Out of the fifty-seven (57) bills, thirty-two (32) became cityhood laws, and one (1) was rejected in a plebiscite. Twenty-four (24) other bills were not acted upon.

On September 25, 2000, during the Eleventh Congress, Senator Aquilino Pimentel, Jr. introduced Senate Bill No. 2157[3] to amend Section 450 of the Local Government Code. The proposed legislation sought to increase the income requirement to qualify for conversion into a city from P20,000,000.00 annual income to P100,000,000.00 locally-generated income.

On March 20, 2001, Senate Bill No. 2157 was signed into law as R.A. No. 9009. It became effective on June 30, 2001. As revised, Section 450 of the Local Government Code now states, among others, that “[a] municipality or a cluster of barangays may be converted into a component city if it has a locally generated average annual income, as certified by the Department of Finance, of at least One Hundred Million Pesos (P100,000,000.00) for the last two (2) consecutive years based on 2000 constant prices.”

Immediately after the opening of the Twelfth Congress in July 2001 and with R.A. No. 9009 already in full force and effect, the House of Representatives adopted House Joint Resolution No. 29,[4] entitled “Joint Resolution to Exempt Certain Municipalities Embodied in Bills Filed in Congress Before June 30, 2001 from the Coverage of Republic Act 9009.”[5] The resolution sought to exempt from the income requirement of P100,000,000.00 in R.A. No. 9009 the twenty-four (24) municipalities[6] whose conversions into cities were not acted upon during the Eleventh Congress. The reasons for exempting these municipalities were the Senate Blue Ribbon Committee investigation into the jueteng scandal; the impeachment against former President Joseph Estrada by the House of Representatives; the aborted impeachment proceedings in the Senate; the leadership reorganization in both Houses of Congress; the “EDSA Dos” and “EDSA Tres” uprisings; the campaign period; and the May 2001 elections.[7]

The proponents of House Joint Resolution No. 29 found success in the House all the way through the Senate. In the Senate, they found a staunch ally in the person of Senator Robert Barbers, chair of the Committee on Local Government. However, notwithstanding the several public hearings, caucuses, dialogues, and informal discussions, the favorable committee report did not translate into legislation.[8] The Twelfth Congress ended without favorable action.

During the Thirteenth Congress (2004-2007), the House of Representatives reinitiated the move, this time via House Joint Resolution No. 1, and forwarded it to the Senate for approval.

On July 25, 2006, the Senate Committee on Local Government submitted its Committee Report No. 84 recommending approval of House Joint Resolution No. 1, with amendments. The amendments included the change in (a) the number of municipalities which sought conversion into cities during the Eleventh Congress from fifty-six (56) to fifty-seven (57); and (b) the number of bills that were not acted upon from twenty-three (23) to twenty-four (24).[9]

Out of the sixteen (16) members of the Committee who deliberated on House Joint Resolution No. 1, seven (7) senators signed with either “reservations”[10] or “strong reservations,”[11] while three (3) senators dissented.[12]

During the Senate session held on November 6, 2006, Senator Aquilino Pimentel, Jr. asserted that the net effect of passing House Joint Resolution No. 1 would be the grant of a wholesale exemption from the income requirement imposed on the municipalities. Instead, Senator Pimentel suggested that the House of Representatives should initiate and file individual bills for the municipalities that would like to become cities and forward these to the Senate for proper action.

The proponents of House Joint Resolution No. 1 acceded to the suggestion of Senator Pimentel. Consequently, of the twenty-four (24) municipalities enumerated in House Joint Resolution No. 1, sixteen (16) municipalities filed their individual cityhood bills. Each of the cityhood bills contained a common provision exempting the particular municipality from the income requirement imposed by R.A. No. 9009.

On December 22, 2006, the House of Representatives approved the cityhood bills and transmitted them to the Senate for its approval. This time, the required consent of the Senate was attained.

When the cityhood bills were forwarded to the Office of the President, they were allowed to lapse into law pursuant to Section 27(1), Article VI of the Constitution,[13] after President Gloria Macapagal-Arroyo chose not to sign them.

Under the cityhood laws, respondent Commission on Elections (COMELEC) is directed to conduct and supervise plebiscites in respondent municipalities within thirty (30) days from the approval of each of the cityhood laws. The expense for such plebiscites will be shouldered by the respective respondent municipalities.

On March 27, 2007,[14] May 4, 2007,[15] and June 14, 2007,[16] three (3) separate petitions for prohibition were filed by petitioners League of Cities of the Philippines,[17] City of Iloilo,[18] City of Calbayog,[19] and Jerry P. Treñas as taxpayer, against the COMELEC; Municipality of Baybay, Province of Leyte; Municipality of Bogo, Province of Cebu; Municipality of Catbalogan, Province of Western Samar; Municipality of Tandag, Province of Surigao del Sur; Municipality of Borongan, Province of Eastern Samar; Municipality of Tayabas, Province of Quezon; Municipality of Lamitan, Province of Basilan; Municipality of Tabuk, Province of Kalinga; Municipality of Bayugan, Province of Agusan del Sur; Municipality of Batac, Province of Ilocos Norte; Municipality of Mati, Province of Davao Oriental; Municipality of Guihulngan, Province of Negros Oriental; Municipality of Cabadbaran, Province of Agusan del Norte; Municipality of Carcar, Province of Cebu; and Municipality of El Salvador, Province of Misamis Oriental.

As a show of support to their mother association, separate petitions-in-intervention were filed by various sympathetic cities who are members of the League of Cities of the Philippines. The petitions-in-intervention were admitted by the Court en banc through various Resolutions on separate dates.[20]

Petitioners and petitioners-in-intervention collectively prayed for the issuance of lawful orders from this Court, enjoining respondent COMELEC and respondent municipalities from implementing the provisions of the challenged cityhood laws and conducting plebiscites in the affected areas or, in the alternative, for the COMELEC not to proclaim the plebiscite results. They likewise prayed that the cityhood laws[21] be struck down as unconstitutional.

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On July 24, 2007, the Court en banc resolved to consolidate the petitions and the petitions-in-intervention. On September 28, 2007, petitioners filed a supplemental petition impleading the Municipality of Naga, Cebu and the Department of Budget and Management (DBM) as additional respondents,[22] which the Court granted on October 2, 2007.[23]

On March 11, 2008, oral arguments were held pursuant to the resolution of the Court dated February 5, 2008. The parties were then directed to file simultaneously their respective memoranda.

As no temporary restraining order and/or preliminary injunction was issued by the Court, the COMELEC proceeded to conduct plebiscites in respondent municipalities, where all the cityhood laws were ratified. Too, the DBM to date has been releasing the Internal Revenue Allotments (IRAs) to respondent municipalities as cities.

IssuesPetitioners in G.R. No. 176951,[24] G.R. No. 177499,[25] and G.R. No. 178056[26] pose common issues for Our consideration, to wit:

I. THE CITYHOOD LAWS DIRECTLY VIOLATE SECTION 10, ARTICLE X OF THE 1987 CONSTITUTION BY UNLAWFULLY EXEMPTING THE RESPONDENT MUNICIPALITIES FROM COMPLIANCE WITH THE MINIMUM INCOME REQUIREMENT IMPOSED BY THE LOCAL GOVERNMENT CODE.

II. THE CITYHOOD LAWS DIRECTLY VIOLATE THE EQUAL PROTECTION CLAUSE UNDER SECTION 1, ARTICLE III OF THE CONSTITUTION AS IT UNREASONABLY GRANTS SPECIAL TREATMENT TO THE RESPONDENT MUNICIPALITIES BY UNREASONABLY EXEMPTING THEM FROM COMPLIANCE WITH THE MINIMUM INCOME REQUIREMENT IMPOSED BY THE LOCAL GOVERNMENT CODE. Underscoring supplied)

Petitioners-in-intervention raise essentially similar issues.

There are, however, two (2) procedural issues which must be resolved at the outset as they would determine whether the petitions and the petitions-in-intervention should proceed: first, whether petitioners and petitioners-in-intervention possess locus standi; and second, whether a petition for prohibition is the correct remedy to question the constitutionality of the cityhood laws.

RulingPreliminariesPetitioners and petitioners-in-intervention possess locus standi.

In the leading case of Baker v. Carr,[27] the United States Supreme Court, speaking through Mr. Justice William J. Brennan, held that “the gist of the question of standing” is whether the party “alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.”[28]

Thus, the rule in the United States is that persons wishing to contest, on constitutional grounds, the validity of the statute must be able to show not only that the statute is invalid but also that they have sustained, or are in immediate danger of sustaining, some direct injury as the result of its enforcement. Suffering in some indefinite way in common with people generally would not suffice.[29] In other words, one who is not prejudiced by the enforcement of an act of Congress cannot question its constitutionality.[30] In the absence of showing of injury, actual, or threatened, there can be no constitutional argument.[31]

The rule has been adopted in our jurisdiction. In House International Building Tenants Association, Inc. v. Intermediate Appellate Court,[32] Joya v. Presidential Commission on Good Government,[33] Integrated Bar of the Philippines v. Zamora,[34] Francisco, Jr. v. The House of Representatives,[35] and Anak Mindanao Party-List Group v. The Executive Secretary,[36] among others, this Court made similar pronouncements on locus standi. In the last mentioned case, the Court summarized the rule, thus:

Locus standi or legal standing has been defined as a personal and substantial interest in a case such that the party has sustained or will sustain direct injury as a result of the governmental act that is being challenged. The gist of the question on standing is whether a party alleges such personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional questions.

x x x a party who assails the constitutionality of a statute must have a direct and personal interest. It must show not only that the law or any governmental act is invalid, but also that it sustained or is in immediate danger of sustaining some direct injury as a result of its enforcement, and not merely that it suffers thereby in some indefinite way. It must show that it has been or is about to be denied some right or privilege to which it is lawfully entitled or that it is about to be subjected to some burdens or penalties by reason of the statute or act complained of.

For a concerned party to be allowed to raise a constitutional question, it must show that (1) it has personally suffered some actual or threatened injury as a result of the allegedly illegal conduct of the government, (2) the injury is fairly traceable to the challenged action, and (3) the injury is likely to be redressed by a favorable action.[37]

Parties can have locus standi depending on the personality they assume. Parties may come to the Court as (1) organizations and groups representing their own interests; (2) organizations and groups representing the interests of their members; (3) individuals championing a class; (4) political subdivisions; (5) public officials; (6) members of Congress; (7) taxpayers; (8) corporations and other business entities; (9) citizens, residents, and aliens; (10) health professionals; (11) voters; and (12) other miscellaneous classes.[38]

The League of Cities of the Philippines has legal standing. As averred in its petition, it is an association of cities in the Philippines, and is organized and existing by virtue of Philippine laws.[39] In fact, its existence is sanctioned by Section 13, Article X of the 1987 Constitution,[40] and Section 499 of the Local Government Code.[41] As a juridical person or entity, it may be a party to a civil action.[42] It has a legal personality of its own.[43] It may sue or be sued in its name, in conjunction with the laws and regulations of its organization.[44]

Petitioners City of Iloilo and City of Calbayog, and petitioners-in-intervention, who are all members of the League of Cities of the Philippines, also have legal standing. Aside from being public corporations by virtue of their being cities,[45] they stand to suffer a reduction or decrease of the IRA they are presently receiving due to the conversion of respondent municipalities into cities.

The Local Government Code mandates that each class of Local Government Unit should have a fixed share in the IRA. In the case of cities, they are entitled to 23%. In dividing this 23% share among all the cities, the population of a particular city is considered.[46] But 25% of the 23% share is equally divided among all the cities. Thus, an increase in the number of cities means that the allotment to each city out of the fixed 23% IRA share of all will be reduced. A fixed numerator divided by an

36

increased denominator necessarily results in a smaller quotient. The reduction would obviously affect the amounts budgeted by existing cities for their programs and projects.

Jerry P. Treñas, as taxpayer, has locus standi. A person who pays taxes or is liable to pay taxes for the support of a taxing unit, and who would be injured by the unlawful expenditure of public funds by the illegal disposition of the public property of such unit, or by any other illegal act which would increase his or her burden of taxation, has locus standi to institute and maintain a taxpayer’s suit. This is regardless of the amount or kind of taxes being paid.[47]

In Velarde v. Social Justice Society,[48] reiterating the doctrine in Del Mar v. Philippine Amusement and Gaming Corporation,[49] the Court held that “parties suing as taxpayers must specifically prove that they have sufficient interest in preventing the illegal expenditure of money raised by taxation.”[50] A taxpayer’s suit “may be properly brought only when there is an exercise by Congress of its taxing or spending power.”[51] Here, there is no question that the conduct of the plebiscites required under the cityhood laws and the consequent release of the respective IRAs of respondent municipalities as cities, entails the spending of funds sourced from the public coffers. Clearly, there is an exercise by Congress of its taxing or spending power.

In any event, the Court in more than one instance has taken a liberal stance as far as standing is concerned. This is especially true when important constitutional issues are at stake. The cases of Philippine Constitution Association, Inc. v. Gimenez,[52] Civil Liberties Union v. Executive Secretary,[53] Guingona, Jr. v. Carague,[54] Basco v. Philippine Amusements and Gaming Corporation (PAGCOR),[55] Osmeña v. Commission on Elections,[56] Carpio v. Executive Secretary,[57] Kilosbayan, Inc. v. Guingona, Jr.,[58] Cruz v. Secretary of Environment and Natural Resources,[59] and Agan v. Philippine International Air Terminals Co., Inc.,[60] bear witness to the liberal attitude of the Court on locus standi.

Indeed, public interest demands that the Court take a more liberal view in determining whether petitioners and petitioners-in-intervention possess locus standi. The issues hoisted are of paramount importance. The petitions and petitions-in-intervention raise serious constitutional issues on the requirements for conversion of a municipality to a city. This, in turn, would affect not only the conversion of respondent municipalities but also all future conversions of municipalities to cities. To dismiss the petitions and petitions-in-intervention on mere technicality is not in line with the function of this Court as the final interpreter of what the law is and should mean.

There is no merit to the contention of respondent COMELEC and respondent municipalities that the petitions and petitions-in-intervention are based on mere “speculative injury” that supposedly render them devoid of any actual controversy. This is belied by the allegations in the petitions and the petitions-in-intervention. There actually exist diametrically opposed views among the contending parties as regards the validity of the cityhood laws. Too, petitioners and petitioners-in-intervention have sufficiently averred economic injury to their city budgets and their plans and projects as a consequence of the conversion of respondent municipalities into component cities. Economic injury is a valid basis for acquiring locus standi and judicial review.[61]

Prohibition is the correct remedy to question the constitutionality of the cityhood laws.

The Constitution[62] grants to the Court original jurisdiction over petitions for prohibition. Although this original jurisdiction over petitions for prohibition (together with petitions for certiorari, mandamus, quo warranto, and habeas corpus) is concurrent with that of the Regional Trial Courts and the Court of Appeals, the established policy is that this Court allows the direct invocation of its original jurisdiction “if compelling reasons, or the nature and importance of the issues raised, warrant,”[63] or “in the interest of speedy justice and to avoid future litigations so as to promptly put an end to the present controversy.”[64] This policy has been applied by the Court in exceptional cases, among them, People v. Cuaresma,[65] Santiago v. Vasquez,[66] Manalo v. Gloria,[67] Philippine National Bank v. Sayo, Jr.,[68] Cruz v. Secretary of Environment and Natural Resources,[69] Buklod ng Kawaning EIIB v. Zamora,[70] and Government of the United States of America v. Purganan.[71]

The Court should take cognizance of the petitions and petitions-in-intervention because the issues raised are exceptional and of paramount importance. They involve substantial public interest that warrant no less than the intervention of this Court so that said issues may be settled.

In Tan v. Commission on Elections,[72] this Court granted the petition for prohibition and struck down as unconstitutional Batas Pambansa Blg. 885, which created the province of Negros del Norte. The Court held that “[t]the challenged act is manifestly void and unconstitutional. Consequently, all the implementing acts complained of, viz. the plebiscite, the proclamation of a new province of Negros del Norte and the appointment of its officials are equally void.”[73]

In Miranda v. Aguirre,[74] this Court granted the petition for a writ of prohibition with prayer for preliminary injunction assailing the constitutionality of R.A. No. 8528 converting the city of Santiago, Isabela, from an independent component city to a component city.

In Agan v. Philippine International Air Terminals Co., Inc.,[75] petitioners and petitioners-in-intervention were allowed to avail themselves of the remedy of prohibition to stop the Manila International Airport Authority (MIAA) and the Department of Transportation and Communications (DOTC) and its Secretary from implementing several agreements executed by the Philippine Government through the DOTC and the MIAA and the Philippine International Air Terminals Co., Inc.

In La Bugal-B’Laan Tribal Association, Inc. v. Ramos,[76] the remedies of prohibition and mandamus were used to assail the constitutionality of R.A. No. 7942, otherwise known as the Philippine Mining Act of 1995, along with its Implementing Rules and Regulations, Department of Environment and Natural Resources Administrative Order 96-40, and the Financial and Technical Assistance Agreement entered into on March 30, 1995 by the Republic of the Philippines and WMC (Philippines), Inc., a corporation organized under Philippine Laws.

In Metropolitan Bank and Trust Company, Inc. v. National Wages and Productivity Commission,[77] the Court synthesized the requirements for a petition for prohibition, thus: (1) it must be directed against a tribunal, corporation, board, officer, or person exercising functions, judicial, quasi-judicial, or ministerial; (2) the tribunal, corporation, board, or person has acted without or in excess of its jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction; and (3) there is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law.[78]

The petitions and petitions-in-intervention comply with the above criteria.

First, the petitions and petitions-in-intervention seek to prohibit the COMELEC from complying with its ministerial function to conduct the plebiscites as required by the cityhood laws. The DBM is also sought to be enjoined from performing its ministerial function of releasing the IRA of respondent municipalities as cities. In Ruperto v. Torres[79] and Municipal Council of Lemery v. Provincial Board of Batangas,[80] among others, ministerial function was described as one by which an officer or a tribunal performs in the context of a given set of facts, in a prescribed manner, and without regard for the exercise of his/its own judgment upon the propriety of the act done. The respective functions of the COMELEC and DBM as far as the cityhood laws are concerned fit this parameter.

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The conduct sought to be prohibited in the petitions and petitions-in-intervention is a ministerial function. The COMELEC does not have the discretion whether or not to conduct the plebiscites. The same may be said of the DBM. It has no choice save to release the respective IRAs of respondent municipalities as cities.

Second, the petitions and petitions-in-intervention have sufficiently alleged that the COMELEC and the DBM acted without or in excess of jurisdiction in implementing the cityhood laws – on the part of the COMELEC, in conducting the plebiscites; while on the part of the DBM, in releasing the respective IRAs of respondent municipalities as cities.

Third, petitioners and petitioners-in-intervention have no other plain, speedy, and adequate remedy in the ordinary course of law. To recall, the cityhood laws have a common provision that the COMELEC is supposed to conduct plebiscites in different parts of the country for the ratification of the cityhood laws. Thus, filing different petitions for prohibition in the various Regional Trial Courts where the plebiscites were to be conducted was not a speedy and adequate remedy.

I cannot subscribe to the fait accompli defense of respondent municipalities, which they claim should be a ground for outright dismissal of the petitions and petitions-in-intervention. They are not mooted by the fact that plebiscites were already conducted, respondent municipalities acknowledged as cities, and their officials correspondingly appointed. The petitions and petitions-in-intervention raise constitutional issues which necessitate the intervention of the Court. No amount of intervening events can legitimize the conversions of respondent municipalities into component cities if, indeed, the requirements of the Constitution and the Local Government Code have not been met. As the Court earlier held:

x x x the 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 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 have 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 without 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.[81]

It is true that the usual function of the writ of prohibition is to prevent the execution of an act which is about to be done. It is not intended to provide a remedy for acts already accomplished.[82] The office of prohibition is to arrest proceedings rather than to undo them.[83] A preventive remedy, as a rule, does not lie to restrain an act that is already fait accompli.[84]

However, courts may take exceptions. In the performance of their duties, courts should not be shackled by stringent rules which would result in manifest injustice. Rules of procedure are only tools crafted to facilitate the attainment of justice. Their strict and rigid application, if they result in technicalities that tend to frustrate rather than promote substantial justice, must be eschewed. Substantial rights must not be prejudiced by a rigid and technical application of the rules in the altar of expediency. When a case is impressed with public interest, a relaxation of the application of the rules is in order.[85] Time and again, this Court has suspended its own rules and excepted a particular case from their operation whenever the higher interests of justice so require.[86]

The issues in the petitions and petitions-in-intervention are exceptional. They are of paramount importance and involve substantial public interest. They warrant no less than the intervention of this Court.

Now to the main points of the petition.

I. The cityhood laws do not violate Section 10, Article X of the 1987 Constitution.

Section 10, Article X of the 1987 Constitution states:

No province, city, municipality, or barangay shall 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. (Emphasis supplied)

What the provision means is that once the Local Government Code is enacted, the creation, modification, or dissolution of local government units must conform with the criteria thus laid down.[87]

The use of the word “shall” in a constitutional provision is generally considered as a mandatory command,[88] though the word “shall” may receive a permissive interpretation when necessary to carry out the true intent of the provision where the word is found.[89] Thus, it is not always the case that the use of the word “shall” is conclusive.[90] However, a reading of Section 10, Article X cannot be construed as anything else but mandatory.

That said Section 10 is mandatory is all the more bolstered by the use of the negative and prohibitory words “[n]o province, city x x x may be created x x x except in accordance with x x x.” In Varney v. Justice[91] and Hunt v. State,[92] it was held that if the language used in the Constitution is prohibitory, it should be construed to mean a positive and unequivocal negation.

Section 10, Article X is clear: (a) the creation, division, merger or abolition or alteration of boundaries of local government units must be in accordance with the criteria set forth in the Local Government Code; and (b) such act must be approved by a majority of the votes cast in a plebiscite called for the purpose in the political unit directly affected. On one hand, it should be in accordance with the criteria set forth in the Local Government Code because the creation, division, merger, or abolition of political units is part of the larger power to enact laws which the Constitution vests in Congress.[93] It is also to ensure uniformity in criteria. On the other hand, the plebiscite is required as a check against the pernicious political practice of gerrymandering. No better control exists against this excess than through the exercise of direct people power, which promotes local autonomy. After all, local autonomy is guaranteed by the Constitution.[94]

A. The intent of R.A. No. 9009, which amended Section 450 of the Local Government Code, is to exempt respondent municipalities from the income requirement of P100,000,000.00. Thus, the cityhood laws, which merely carry out the intent of R.A. No. 9009, are in accordance with the “criteria established in the Local Government Code,” pursuant to Section 10, Article X of the 1987 Constitution.

The cityhood laws contain a uniformly worded exemption clause, which states: “Exemption from Republic Act No. 9009. The city of [___] shall be exempt from the income requirement prescribed under Republic Act No. 9009.”[95]

Petitioners and petitioners-in-intervention contend that since Section 10, Article X is mandatory and prohibitive, it follows that there is no other way of compliance but to refrain from enacting cityhood laws unless these are in accordance with the criteria established in the Local Government Code.[96] Section 10 contains no exceptions and should admit of no exceptions. Any exceptions to the rule, to be valid, must necessarily be enacted by Congress by first converting itself into a

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constituent assembly to amend the provision.[97] Since the income requirements prescribed under R.A. No. 9009 are among the criteria in the Local Government Code within the contemplation of Section 10, it follows that the exemption clauses in the cityhood laws are in direct violation of Section 10.[98] In other words, Congress cannot provide a wholesale exemption from R.A. No. 9009 without repealing the law itself.

Petitioners and petitioners-in-intervention would be correct if it were not the intent of R.A. No. 9009, which amended Section 450 of the Local Government Code, to exempt respondent municipalities from the income requirement of P100,000,000.00.

I will elaborate.

The “criteria established in the local government code” that Section 10, Article X of the 1987 Constitution speaks of, are spread in at least four sections of the Local Government Code, namely, Section 6 entitled “Authority to Create Local Government Units”;[99] Section 7 entitled “Creation and Conversion,”[100] Section 449 entitled “Manner of Creation,”[101] and most importantly, Section 450 entitled “Requisites for Creation.”

During the deliberations on Section 5(3), Article VI of the 1987 Constitution,[102] Commissioner De Castro remarked that when Palayan City in Nueva Ecija was made a city, there were only three houses and two shades for cows.[103] The apparent whimsical reasons for creating cities ended when Batas Pambansa (B.P.) Blg. 337 provided, inter alia, that “[a] municipality may be converted into a component city if it has x x x an average regular annual income, as certified by the Minister of Finance, of at least ten million pesos for the last three consecutive years.”[104] B.P. Blg. 337 was repealed by R.A. No. 7160 (Local Government Code) whose then Section 450 provided that “[a] municipality or 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 at least two (2) consecutive years based on 1991 constant prices, x x x.” R.A. No. 9009, amending Section 450 of the Local Government Code, further increased the income requirement to P100,000,000.00, thus:

Section 450. Requisites for Creation. – (a) A municipality or a cluster of barangays may be converted into a component city if it has a locally generated average annual income, as certified by the Department of Finance, of at least One Hundred Million Pesos (P100,000,000.00) for the last two (2) consecutive years based on 2000 constant prices, and if it has either of the following requisites:

A contiguous territory of at least one hundred (100) square kilometers, as certified by the Land Management Bureau; or

A population of not less than one hundred fifty thousand (150,000) inhabitants, as certified by the National Statistics Office.

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. (Underscoring supplied)

What Congress had in mind is not at all times accurately reflected in the language of the statute. Thus, the literal interpretation of a statute may render it meaningless; and lead to absurdity, injustice, or contradiction.[105] When this happens, and following the rule that the intent or the spirit of the law is the law itself,[106] resort should be had to the principle that the spirit of the law controls its letter.[107] Not to the letter that killeth, but to the spirit that vivifieth. Hindi ang letra na pumapatay, kung hindi ang diwa na nagbibigay buhay.

It is in this respect that the intent of Congress in enacting Senate Bill No. 2157, which eventually became R.A. No. 9009, finds relevance.

The purpose of the enactment of R.A. No. 9009 can be seen in the sponsorship speech of Senator Pimentel on Senate Bill No. 2157. Noteworthy is his statement that the basis for the proposed increase from P20,000,000.00 to P100,000,000.00 in the income requirement for municipalities and cluster of barangays wanting to be converted into cities is the “mad rush of municipalities wanting to be converted into cities,” and in order that the country “will not be a nation of all cities and no municipalities,” viz.:

Senator Pimentel. Mr. President, I would have wanted this bill to be included in the whole set of proposed amendments that we have introduced to precisely amend the Local Government Code. However, it is a fact that there is a mad rush of municipalities wanting to be converted into cities. Whereas in 1991, when the Local Government was approved, there were only 60 cities, today the number has increased to 85 cities, with 41 more municipalities applying for conversion to the same status. At the rate we are going, I am apprehensive that before long this nation will be a nation of all cities and no municipalities.

It is for that reason, Mr. President, that we are proposing among other things, that the financial requirement, which, under the Local Government Code, is fixed at P20 million, be raised to P100 million to enable a municipality to have the right to be converted into a city, and the P100 million should be sourced from locally generated funds.

What has been happening, Mr. President, is, the municipalities aspiring to become cities say that they qualify in terms of financial requirements by incorporating the Internal Revenue share of the taxes of the nation added on to their regularly generated revenue. Under that requirement, it looks clear to me that practically all municipalities in this country would qualify to become cities.

It is precisely for that reason, therefore, that we are seeking the approval of this Chamber to amend, particularly Section 450 of Republic Act No. 7160, the requisite for the average annual income of a municipality to be converted into a city or cluster of barangays which seek to be converted into a city, raising that revenue requirement from P20 million to P100 million for the last two consecutive years based on 2000 constant prices.[108] (Emphasis supplied)

What follows is revealing. At the time that R.A. No. 9009 was being deliberated upon, Congress was also well aware that several municipalities wanting to become cities and which qualified under the income threshold of P20,000,000.00 under the old Local Government Code had pending cityhood bills. These included respondent municipalities. Thus, equally noteworthy is the interpellation by Senate President Franklin Drilon of Senator Pimentel in which the latter stated that municipalities that had pending cityhood bills “would not be affected” by the income threshold of P100,000,000.00 being proposed by Senate Bill No. 2157, thus:

THE PRESIDENT. The Chair would like to ask for some clarificatory point.

SENATOR PIMENTEL. Yes, Mr. President.

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THE PRESIDENT. This is just on the point of the pending bills in the Senate which propose the conversion of a number of municipalities into cities and which qualify under the present standard.

We would like to know the view of the sponsor: Assuming that this bill becomes a law, will the Chamber apply the standard as proposed in this bill to those bills which are pending for consideration?

SENATOR PIMENTEL, Mr. President, it might not be fair to make this bill, on the assumption that it is approved, retroact to the bills that are pending in the Senate for conversion from municipalities to cities.

THE PRESIDENT. Will there be an appropriate language crafted to reflect that view? Or does it not become a policy of the Chamber, assuming that this bill becomes a law tomorrow, that it will apply to those bills which are already approved by the House under the old version of the Local Government Code and are now pending in the Senate? The Chair does not know if we can craft a language which will limit the application to those which are not yet in the Senate. Or is that a policy that the Chamber will adopt?

SENATOR PIMENTEL. Mr. President, personally, I do not think it is necessary to put that provision because what we are saying here will form part of the interpretation of this bill. Besides, if there is no retroactivity clause, I do not think that the bill would have any retroactive effect.

THE PRESIDENT. So the understanding is that those bills which are already pending in the Chamber will not be affected.

SENATOR PIMENTEL. These will not be affected, Mr. President.

THE PRESIDENT. Thank you Mr. Chairman.[109] (Underscoring supplied)

The deliberations of Congress are necessary to ferret out the intent of the legislature in enacting R.A. No. 9009. It is very clear that Congress intended that the then pending cityhood bills would not be covered by the income requirement of P100,000,000.00 imposed by R.A. No. 9009. It was made clear by the Legislature that R.A. No. 9009 would not have any retroactive effect.

Thus, the interpellations by Senator Drilon of Senator Pimentel are consistent with the rule that laws should be applied prospectively in the spirit of justice and fair play. Be that as it may, the Civil Code is explicit that laws shall have no retroactive effect unless the contrary is provided.[110] This is expressed in the familiar legal maxim, lex prospicit, non respicit. The law looks forward, never backward. Ang batas ay tumitingin sa hinaharap, hindi sa nakaraan. The reason behind the rule is not difficult to perceive. The retroactive application of the law usually divests rights that have already become vested or impairs the obligations of contracts, thus, is unconstitutional.[111]

It then becomes clear that the basis for the inclusion of the exemption clause of the cityhood laws is the clear-cut intent of the Legislature of not giving retroactive effect to R.A. No. 9009. In fact, not only do the legislative records bear the legislative intent of exempting the cityhood laws from the income requirement of P100,000,000.00 imposed by R.A. No. 9009. Congress has now made its intent express in the cityhood laws.

Legislative intent or spirit is the controlling factor, the leading star and guiding light in the application and interpretation of a statute.[112] If a statute needs construction, the influence most dominant in that process is the intent or spirit of the act.[113] The spirit, rather than the letter, of a statute, determines its construction.[114] Thus, a statute must be read according to its spirit or intent.[115] 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.[116] Stated otherwise, 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.[117] Legislative intent is part and parcel of the law. It is the controlling factor in interpreting a statute. In fact, any interpretation that runs counter with the legislative intent is unacceptable and invalid.[118] Torres v. Limjap[119] could not have been more precise, to wit:

The intent of a Statute is the Law. – If a statute is valid, it is to have effect according to the purpose and intent of the lawmaker. The intent is the vital part, the essence of the law and the primary rule of construction is to ascertain and give effect to that intent. The intention of the legislature in enacting a law is the law itself, and must be enforced when ascertained, although it may not be consistent with the strict letter of the statute. Courts will not follow the letter of a statute when it leads away from the true intent and purpose of the legislature and to conclusions inconsistent with the general purpose of the act. Intent is the spirit which gives life to a legislative enactment. In construing statutes the proper course is to start out and follow the true intent of the legislature and to adopt that sense which harmonizes best with the context and promotes in the fullest manner the apparent policy and objects of the legislature x x x.[120] (Emphasis supplied)

Verba intentioni, non e contra debent inservire. Words ought to be more subservient to the intent than intent to the words. Ang mga salita ng batas ay dapat higit na sumunod sa layunin kaysa ang layunin ang sumunod sa mga salita nito.

B. Petitioners and petitioners-intervention were not able to discharge their onus probandi of overcoming the presumption of constitutionality accorded to the cityhood laws.

On the side of every law lies the presumption of constitutionality.[121] Consequently, before a law is nullified, it must be shown that there is a clear and unequivocal breach of the Constitution. Laws will only be declared invalid if the conflict with the Constitution is clear beyond reasonable doubt.[122] A declaration of the unconstitutionality of a statute is only done (a) as a last resort;[123] (b) when absolutely necessary;[124] (c) when the statute is in palpable conflict with a plain provision of the Constitution;[125] and (d) when the invalidity is beyond reasonable doubt.[126]

x x x there is a strong presumption that all regularly enacted statutes are constitutional. In other words, statutes are not presumed to be irrational. Thus, where possible, congressional enactments are to be interpreted so as to avoid raising serious doubts on constitutional questions.

x x x x

The general principle that there is a strong presumption that all regularly enacted statutes are constitutional has been expressed in a variety of ways. Thus, it has been said that all statutes are of constitutional validity unless they are shown to be invalid; that legislatures are presumed to have acted constitutionally in passing a statute; that the courts must start out with the presumption that a statute is constitutional and valid; that every intendment is in favor of the validity of a statute; that every act of the legislature is presumed to be in harmony with the constitution unless the contrary clearly appears; that every act of the legislature and every law found on the statute books is presumptively valid, at least if the statute is not patently unconstitutional on its face; that the courts will indulge in every presumption of constitutionality of which the statute is susceptible; that every rational and reasonable presumption must be indulged in favor of the validity of an act; and that the

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presumption of constitutionality is the postulate of judicial adjudication. The presumption should be the foremost thought in the court’s mind as its proceeds to determine the constitutionality of a statute.[127] (Citations omitted)

The presumption of constitutionality accorded to statutes produces a grave consequence – anyone who wants a statute to be declared unconstitutional bears the onus probandi, thus:

A party who alleges the unconstitutionality of a statute normally has the burden of substantiating his or her claim. The burden is a heavy and difficult one, and it is well settled that to sustain it, the assailant must negate every reasonable, conceivable basis which might support the statute attacked; must be able to point out the particular provision that has been violated and the ground on which it has been infringed; with regard to facial attacks alleging invalidity, must establish that no set of circumstances exists under which the act may be held valid; and must overcome the strong presumption in favor of its validity, which continues until the contrary is proved. He or she must show how, as to him or her, the legislation in question is unconstitutional. x x x[128] (Citations omitted)

Sadly for petitioners and petitioners-in-intervention, they failed to discharge their heavy burden. Because they failed to do so, the Court has no choice but to uphold the presumption of constitutionality accorded to the cityhood laws.

LEAGUE OF CITIES OF THE PHILIPPINES (LCP) represented by LCP National President JERRY P. TREÑAS, CITY OF ILOILO represented by MAYOR JERRY P. TREÑAS, CITY OF CALBAYOG represented by MAYOR MEL SENEN S. SARMIENTO, and JERRY P. TREÑAS in his personal capacity as taxpayer, Petitioners, versus COMMISSION ON ELECTIONS; MUNICIPALITY OF BAYBAY, PROVINCE OF LEYTE; MUNICIPALITY OF BOGO, PROVINCE OF CEBU; MUNICIPALITY OF CATBALOGAN, PROVINCE OF WESTERN SAMAR; MUNICIPALITY OF TANDAG, PROVINCE OF SURIGAO DEL SUR; MUNICIPALITY OF BORONGAN, PROVINCE OF EASTERN SAMAR; and MUNICIPALITY OF TAYABAS, PROVINCE OF QUEZON, Respondents. / CITY OF TARLAC, CITY OF SANTIAGO, CITY OF IRIGA, CITY OF LIGAO, CITY OF LEGAZPI, CITY OF TAGAYTAY, CITY OF SURIGAO, CITY OF BAYAWAN, CITY OF SILAY, CITY OF GENERAL SANTOS, CITY OF ZAMBOANGA, CITY OF GINGOOG, CITY OF CAUAYAN, CITY OF PAGADIAN, CITY OF SAN CARLOS, CITY OF SAN FERNANDO, CITY OF TACURONG, CITY OF TANGUB, CITY OF OROQUIETA, CITY OF URDANETA, CITY OF VICTORIAS, CITY OF CALAPAN, CITY OF HIMAMAYLAN, CITY OF BATANGAS, CITY OF BAIS, CITY OF CADIZ, and CITY OF TAGUM, Petitioners-In-Intervention2009 Dec 21Carpio [DO]G.R. No. 176951DISSENTING OPINION

CARPIO, J.:“A.M. No. 99-1-09-SC (dated 26 January 1999): In the Matter of Clarifying the Rule in Resolving Motions for Reconsideration

The Court Resolved as follows:

A MOTION FOR THE CONSIDERATION OF A DECISION OR RESOLUTION OF THE COURT EN BANC OR OF A DIVISION MAY BE GRANTED UPON A VOTE OF A MAJORITY OF THE MEMBERS OF THE EN BANC OR OF A DIVISION, AS THE CASE MAY BE, WHO ACTUALLY TOOK PART IN THE DELIBERATION OF THE MOTION.

IF THE VOTING RESULTS IN A TIE, THE MOTION FOR RECONSIDERATION IS DEEMED DENIED.” Emphasis supplied)

x x x x

[T]he reason for the rule (of immutability of final judgments) is that if, on the application of one party, the court could change its judgment to the prejudice of the other, it could thereafter, on application of the latter, again change the judgment and continue this practice indefinitely. The equity of a particular case must yield to the overmastering need of certainty and unalterability of judicial pronouncements.

- Justice Lucas P. Bersamin, Apo Fruits Corporation v. Court of Appeals, G.R. No. 164195, 4 December 2009

The ponencia states that “since the instant cases fall under Sec. 4(2), Art. VIII of the Constitution, [Sec. 7, Rule 56 and the Resolution in A.M. No. 99-1-09-SC] ought to be applied in conjunction with the prescription of the Constitution that the cases ‘shall be decided with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the instant cases and voted thereon.”’

I dissent.

I. The Rules on Tie-Vote

Section 7, Rule 56 of the Rules of Court expressly governs tie-votes in the en banc, thus:

SEC. 7. Procedure if opinion is equally divided. Where the court en banc is equally divided in opinion, or the necessary majority cannot be had, the case shall again be deliberated on, and if after such deliberation no decision is reached, the original action commenced in the court shall be dismissed; in appealed cases, the judgment or order appealed from shall stand affirmed; and on all incidental matters, the petition or motion shall be denied. Emphasis supplied)

This provision contemplates three possible instances where the Supreme Court en banc may be equally divided in opinion or where the necessary majority[1] in the votes cannot be had.

First, in actions instituted originally in the Supreme Court, if there is a tie-vote, the Court en banc shall deliberate again. After such re-deliberation and the Court remains equally divided, which means that no decision had been reached, the original action shall be dismissed. In such a case, the tie-vote results in the dismissal of the action without establishing any jurisprudential precedent.

Significantly, a deadlock vote on an original action is not novel to the Court. In fact, the Court had experienced such a deadlock in Cruz v. Secretary of Environment and Natural Resources,[2] Badoy, Jr. v. Comelec,[3] Antonio, Jr. v. Comelec,[4] Agudo v. Comelec,[5] and People v. Lopez.[6]

1. Cruz v. Secretary of Environment and Natural Resources

In Cruz v. Secretary of Environment and Natural Resources, petitioners Isagani Cruz and Cesar Europa brought a suit for prohibition and mandamus as citizens and taxpayers, assailing the constitutionality of certain provisions of Republic Act No. 8371, otherwise known as the Indigenous Peoples Rights Act of 1997 (IPRA), and its Implementing Rules and Regulations. Petitioners challenged the constitutionality of the IPRA “on the ground that its provisions amount to an unlawful deprivation of the State’s ownership over lands of the public domain as well as minerals and other natural resources therein, in violation of the regalian doctrine embodied in Section 2, Article XII of the Constitution.” The Court, via a Per Curiam resolution, dismissed the petition because the Court was equally divided in opinion, to wit:

After due deliberation on the petition, the members of the Court voted as follows:

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Seven (7) voted to dismiss the petition. Justice Kapunan filed an opinion, which the Chief Justice and Justices Bellosillo, Quisumbing, and Santiago join, sustaining the validity of the challenged provisions of R.A. 8371. Justice Puno also filed a separate opinion sustaining all challenged provisions of the law with the exception of Section 1, Part II, Rule III of NCIP Administrative Order No. 1, series of 1998, the Rules and Regulations Implementing the IPRA, and Section 57 of the IPRA which he contends should be interpreted as dealing with the large-scale exploitation of natural resources and should be read in conjunction with Section 2, Article XII of the 1987 Constitution. On the other hand, Justice Mendoza voted to dismiss the petition solely on the ground that it does not raise a justiciable controversy and petitioners do not have standing to question the constitutionality of R.A. 8371.

Seven (7) other members of the Court voted to grant the petition. Justice Panganiban filed a separate opinion expressing the view that Sections 3 (a)(b), 5, 6, 7 (a)(b), 8, and related provisions of R.A. 8371 are unconstitutional. He reserves judgment on the constitutionality of Sections 58, 59, 65, and 66 of the law, which he believes must await the filing of specific cases by those whose rights may have been violated by the IPRA. Justice Vitug also filed a separate opinion expressing the view that Sections 3(a), 7, and 57 of R.A. 8371 are unconstitutional. Justices Melo, Pardo, Buena, Gonzaga-Reyes, and De Leon join in the separate opinions of Justices Panganiban and Vitug.

As the votes were equally divided (7 to 7) and the necessary majority was not obtained, the case was redeliberated upon. However, after redeliberation, the voting remained the same. Accordingly, pursuant to Rule 56, Section 7 of the Rules of Civil Procedure, the petition is DISMISSED.[7] Emphasis supplied)

On motion for reconsideration, the Court en banc, by virtue of Section 7, Rule 56, denied the petitioners’ motion for reconsideration since the members of the Court en banc were equally divided on such motion. In a minute Resolution promulgated on 21 September 2001, the Court stated that “the members of the Court who took part in the original deliberations on the petition find no reason to modify or in any way alter their views on the questions raised by petitioners and reiterated in their motion for reconsideration and therefore maintain their votes as stated in the resolution of December 6, 2000.” Justice Angelina Sandoval Gutierrez took no part on the ground that she did not participate in the deliberations on the petition.

In short, the tie-vote on the main decision cannot invalidate the prior action of the Legislative and Executive branches in enacting RA 8371. Moreover, the tie-vote on the motion for reconsideration resulted in the denial of the motion for reconsideration. Thus, RA 8371 stands as valid.

2. Badoy, Jr. v. Comelec

In Badoy, Jr. v. Comelec, petitioner Badoy, Jr. prayed that Section 12(F) of Republic Act No. 6132 or The 1971 Constitutional Convention Act be declared unconstitutional. The voting of the Supreme Court Justices standing at five (5) votes in favor of constitutionality and five (5) votes against, the constitutionality of the provision was deemed upheld in conformity with Section 10, Article VIII of the Constitution then in force. The petitions were, therefore, denied.

3. Antonio, Jr. v. Comelec

In Antonio, Jr. v. Comelec, the Supreme Court Justices were evenly divided on the issue of whether the Comelec should have ordered, as it did, a recanvass and proclamation on the basis of the returns of certain precincts in Batanes. Five Justices believed that such a proclamation was a necessary precedent to a protest in the House Electoral Tribunal. Five other Justices dissented. The Court, pursuant to the Rules of Court, ordered a rehearing on the petition in G.R. No. L-31609 entitled Agudo v. Comelec.

4. Agudo v. Comelec

In Agudo v. Comelec, where the Court reheard G.R. No. L-31609, “the equal division (5 to 5) in the Justices’ opinions had persisted, thus calling for the application of Section 11, Rule 56 of the 1964 Revised Rules of Court.”[8] Accordingly, the Court ordered the dismissal of the petition.

5. People v. Lopez

In People v. Lopez, then Solicitor General Lorenzo M. Tañada, filed in the name of the People of the Philippines, a petition for prohibition to enjoin Associate Judge Eusebio M. Lopez from conducting further proceedings and from otherwise taking further cognizance of criminal cases for treason against Benigno S. Aquino (No. 3527) and against Antonio de las Alas, and other treason cases of similar nature. After the case was firstly heard, the Justices taking part were equally divided and no decision could be rendered; so the Court ordered a rehearing in accordance with Section 2 of Rule 56 in relation with Section 1 of Rule 58. The case was submitted again for deliberation and decision. The votes remained tied at 4-4. Thus, the petition was denied.

The above-cited cases, involving actions originally commenced in the Supreme Court, clearly demonstrate that the Court has consistently applied the Rules on tie-vote. In accordance with such rules, the evenly divided Court directed the rehearing of those cases[9] and when, after the rehearings, the tie-vote persisted, the Court ordered the dismissal or denial of the petitions.

Second, in cases appealed to the Supreme Court, Section 7 of Rule 56 explicitly provides that if the Court en banc is still equally divided after re-deliberation, the judgment or order appealed from shall stand affirmed. A tie-vote in cases arising under the Court’s appellate jurisdiction translates into a summary affirmance of the lower court’s ruling.[10] In short, the tie-vote in the en banc cannot amend or reverse a prior majority action of a lower court, whose decision stands affirmed.

Third, on all incidental matters, which include motions for reconsideration, Section 7 of Rule 56 specifically states that if the Court en banc is evenly divided on such matters, the petition or motion shall be denied.

To settle any doubt on how a tie-vote on a motion for reconsideration should be interpreted, the Court en banc issued a clarificatory Resolution on 26 January 1999 in A.M. No. 99-1-09-SC, as follows:

A MOTION FOR THE CONSIDERATION OF A DECISION OR RESOLUTION OF THE COURT EN BANC OR OF A DIVISION MAY BE GRANTED UPON A VOTE OF A MAJORITY OF THE MEMBERS OF THE EN BANC OR OF A DIVISION, AS THE CASE MAY BE, WHO ACTUALLY TOOK PART IN THE DELIBERATION OF THE MOTION.

IF THE VOTING RESULTS IN A TIE, THE MOTION FOR RECONSIDERATION IS DEEMED DENIED. Emphasis supplied)

The clear and simple language of the clarificatory en banc Resolution requires no further explanation. If the voting of the Court en banc results in a tie, the motion for reconsideration is deemed denied. The Court’s prior majority action on the main decision stands affirmed.[11] This clarificatory Resolution applies to all cases heard by the Court en banc, which includes not only cases involving the constitutionality of a law, but also, as expressly stated in Section 4(2), Article VIII of the Constitution, “all other cases which under the Rules of Court are required to be heard en banc.” In short, Section 4(2)

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requires a majority vote of the Court en banc not only in cases involving the constitutionality of a law, but also in all other cases that are heard by the Court en banc.

The principle that a multi-member judicial body such as the Supreme Court cannot, based on a tie-vote, overrule a prior action is consistently applied in legislative bodies as well.[12] In the book The Standard Code of Parliamentary Procedure, the author Alice Sturgis writes:

A tie vote on a motion means that the same number of members has voted in the affirmative as in the negative. Since a majority vote, or more than half of the legal votes case, is required to adopt a motion, an equal or tie vote means that the motion is lost because it has failed to receive a majority vote. A tie vote on a motion is not a deadlock vote that must be resolved; it is simply not a majority vote, and the motion is lost.[13] Emphasis supplied)

Similarly, if the Philippine Supreme Court en banc is evenly split in its opinion on a motion for reconsideration, it is not a deadlock vote that must be resolved; it is simply not a majority vote, and the motion for reconsideration is defeated. More importantly, the tie-vote on a motion for reconsideration does not and cannot, in any instance and for any reason, supersede the prior majority vote on the main decision.

II. The Tie-Vote on the Second Motion for Reconsideration

Section 4(2), Article VIII of the 1987 Constitution provides:

(2) All cases involving the constitutionality of a treaty, international or executive agreement, or law which shall be heard by the Supreme Court en banc, and all other cases which under the Rules of Court are required to be heard en banc, including those involving the constitutionality, application, or operation of presidential decrees, proclamations, orders, instructions, ordinances, and other regulations, shall be decided with the concurrence of majority of the members who actually took part in the deliberations on the issues in the case and voted thereon. Emphasis supplied)

Under Section 4(2), Article VIII of the Constitution, the requirement of a majority vote of the Supreme Court en banc applies not only to the constitutionality of a law, but also to the constitutionality of treaties, executive agreements, ordinances, regulations, and all other cases which under the Rules of Court shall be heard by the Court en banc. To repeat, any case which is heard by the Court en banc shall be decided by a majority vote of the Court en banc.

To insure equal protection of the law, all cases required to be heard by the Court en banc under Section 4(2), Article VII of the Constitution must be governed by the same rules on voting, whether on the main decision or on the motion for reconsideration. There can be no one rule for cases involving the constitutionality of a law and another rule for all other cases. The Constitution makes no such distinction in Section 4(2) of Article VIII. Undeniably, the Constitution does not require that motions for reconsideration in cases involving the constitutionality of a law shall be treated differently from motions for reconsideration in other cases heard by the Court en banc. There is no basis for such a different treatment, and such a different treatment would violate the equal protection of the law. Where the Constitution does not distinguish, this Court must not create a forced and baseless distinction.

In the present cases, the voting on the main petitions was 6-5 to declare the sixteen Cityhood Laws unconstitutional. Clearly, there was compliance with Section 4(2), Article VIII of the 1987 Constitution since a majority of the members of the Court en banc, who actually took part in the deliberations, voted to declare unconstitutional the sixteen Cityhood Laws.

In the first motion for reconsideration, a majority of 7-5 voted to deny the motion for reconsideration. Again, there was a clear majority that denied the first motion for reconsideration. The majority of the Court en banc struck down the sixteen Cityhood Laws twice, first, during the deliberations on the main petitions, and second, during the deliberations on the first motion for reconsideration.

Thereafter, by deliberating on the second motion for reconsideration filed by respondents, the Court in effect allowed the filing of a second motion for reconsideration, which is generally prohibited under the Rules of Court. The Court en banc, voting 6-6, denied the second motion for reconsideration in the Resolution of 28 April 2009.

The 6-6 tie-vote by the Court en banc on the second motion for reconsideration necessarily resulted in the denial of the second motion for reconsideration. Certainly, the 6-6 tie-vote did not overrule the prior majority en banc Decision of 18 November 2008, and the prior majority en banc Resolution of 31 March 2009 denying reconsideration. The tie-vote on the second motion for reconsideration is not the same as a tie-vote on the main decision. The Court en banc need not deliberate again because in case of a tie-vote on a second motion for reconsideration, which is an incidental matter, such motion is lost. The tie-vote plainly signifies that there is no majority to overturn the prior 18 November 2008 Decision and 31 March 2009 Resolution, and the second motion for reconsideration must thus be denied. Further, the tie-vote on the second motion for reconsideration did not mean that the present cases were left undecided because there remain the Decision of 18 November 2008 and Resolution of 31 March 2009 where majority of the Court en banc concurred in decreeing the unconstitutionality of the sixteen Cityhood Laws. In short, the 18 November 2008 Decision and 31 March 2009 Resolution, which were both reached with the concurrence of a majority of the Court en banc, are not reconsidered but stand affirmed.[14] These prior majority actions of the Court en banc can only be overruled by a new majority vote, not a tie-vote because a tie-vote cannot overrule a prior affirmative action.

Applying Section 7, Rule 56 and the clarificatory Resolution in A.M. No. 99-1-09-SC to the present cases does not in any manner contravene the mandate of Section 4(2), Article VIII of the Constitution. To repeat, the Court en banc deliberated on the petitions and, by a majority vote of 6-5, granted the petitions and declared the sixteen Cityhood Laws unconstitutional in the Decision of 18 November 2008. Again, by a clear majority vote of 7-5, the Court en banc voted to deny the first motion for reconsideration. Therefore, contrary to the ponencia, the present cases were decided with the concurrence of a majority of the Court en banc when it declared the unconstitutionality of the sixteen Cityhood Laws, pursuant to Section 4(2), Article VIII of the Constitution.

A.M. No. 99-1-09-SC applies to all cases heard by the Court en banc. Whether the case involves the constitutionality of a law, ordinance or regulation, or any civil, administrative or criminal case which under the Rules of Court must be heard en banc, the case must be decided by a majority vote of the Court en banc as expressly required by Section 4(2), Article VIII of the Constitution. Any tie-vote in the motion for reconsideration results in the denial of the motion for reconsideration pursuant to A.M. No. 99-1-09-SC, which governs all cases heard by the Court en banc.

Further, to treat the second motion for reconsideration not as an incidental matter would certainly render inutile the distinction set forth in Section 7, Rule 56 among original actions commenced in this Court, appeals from the judgments of lower courts, and incidental matters, such as motions.

III. Precedents Applying Section 7, Rule 56

In Santiago v. Comelec,[15] involving the constitutionality of Republic Act No. 6735 (RA 6735), entitled “An Act Providing for a System of Initiative and Referendum and Appropriating Funds Therefor,” the Court en banc, in an 8-5 vote, held that RA 6735 is “incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative on amendments to the

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Constitution is concerned.” While the Court en banc did not expressly declare RA 6735 unconstitutional, the majority of the Court en banc ruled that RA 6735, the law governing the implementation of the initiative system, was insufficient to amend the Constitution. The majority of the Court en banc concluded that “the COMELEC should be permanently enjoined from entertaining or taking cognizance of any petition for initiative on amendments on the Constitution until a sufficient law shall have been validly enacted to provide for the implementation of the system.”[16] On motion for reconsideration, the Court en banc voted 6-6-1,[17] inevitably resulting in the denial of the motion for reconsideration and affirmance of the prior majority action on the main petition. In other words, the Court en banc’s ruling in Santiago that RA 6735 was inadequate to amend the Constitution, obtained via an 8-5 vote, was deemed affirmed by a tie-vote on the motion for reconsideration. In fact, the Court’s decision in Santiago spelled the sudden death of the so-called PIRMA initiative that triggered Santiago.

The case of Cruz v. Secretary of Environment and Natural Resources also applies to the present cases. Petitioners in Cruz v. Secretary of Environment and Natural Resources challenged the constitutionality of certain provisions of Republic Act No. 8371, otherwise known as the Indigenous Peoples Rights Act of 1997 (IPRA). There, the Court en banc was evenly divided not only on the main petition, but also on the motion for reconsideration. In a minute Resolution promulgated on 21 September 2001, the Court en banc, by virtue of Section 7, Rule 56, denied the petitioners’ motion for reconsideration since the members of the Court en banc were equally divided on such motion. As a result, the Per Curiam Resolution dismissing the petition stood affirmed and the constitutionality of RA 8371 was deemed upheld.

Santiago and Cruz are squarely in point with the present cases because Santiago and Cruz, like the present cases, indisputably involve the constitutionality of a law and a tie-vote on the motion for reconsideration.

Applying Section 7, Rule 56, the Court en banc, instead of prolonging their disposition, outrightly denied the motions for reconsideration in Santiago and Cruz. No rehearings and no redeliberations were set and conducted to re-examine the motions for reconsideration. This is precisely because such proceedings are absolutely without any basis. For this reason alone, the second motion for reconsideration in these cases must suffer the same fate as the motions for reconsideration in Santiago and Cruz -- it must be summarily denied pursuant to Section 7, Rule 56.

Following the ponencia, the cases of Santiago and Cruz would be deemed unresolved. Worse, the resolutions in Santiago and Cruz denying reconsideration due to a tie-vote would be deemed a blatant disregard of the mandate of Section 4(2), Article VIII of the 1987 Constitution.

IV. The Finality of the 18 November 2008 Decision

Respondents, in filing the Motion to Amend the Resolution of April 28, 2009 By Declaring Instead that Respondents’ Motion for Reconsideration of the Resolution of March 31, 2009 and Motion for Leave to File, and To Admit Attached Second Motion for Reconsideration of the Decision Dated November 18, 2008 Remain Unresolved and to Conduct Further Proceedings Thereon (Motion to Amend the Resolution of April 28, 2009), mistakenly believe that “with the 6-6 vote on the second motion for reconsideration, the issue of whether the Cityhood Laws were unconstitutional remained unresolved.” In the first place, the Motion to Amend the Resolution of April 28, 2009 is a prohibited pleading. A prohibited pleading is a scrap of paper, and can never be placed “on an equal, if not a higher, standing than a motion for reconsideration.”

There is nothing left to be resolved precisely because the tie-vote on the second motion for reconsideration simply means that there was no majority vote to overturn the 18 November 2008 Decision, and the second motion for reconsideration is lost. The tie in the voting does not leave the case undecided. There is still the 18 November 2008 Decision and the 31 March 2009 Resolution which must stand in view of the failure of the members of the Court en banc to muster the necessary vote for their reconsideration.[18] No further proceedings, much less re-deliberations by the Court en banc, are required.

Since the second motion for reconsideration was denied, pursuant to Section 7 of Rule 56, there is absolutely nothing which would preclude the 18 November 2008 Decision from becoming final after fifteen (15) days from receipt by the parties of the 28 April 2009 Resolution denying the second motion for reconsideration.

The Court had explicitly directed the parties, in the 28 April 2009 Resolution, to refrain from filing further pleadings as it would no longer entertain the same. Yet, respondents opted to ignore and persistently defy such directive. Aside from filing the Motion to Amend the Resolution of April 28, 2009, respondents filed three more pleadings, namely, (1) Motion for Reconsideration of the Resolution of 2 June 2009, (2) Urgent Motion to Resolve Pending Incidents, and (3) Appeal to Honorable Chief Justice Reynato S. Puno and Associate Justice Antonio Eduardo B. Nachura to Participate in the Resolution of Respondents' Motion for Reconsideration of the Resolution of June 2, 2009. All these pleadings, which were filed in direct contravention of the Court’s directive in the 28 April 2009 Resolution, are prohibited and are mere scraps of paper, unworthy of the Court’s attention.

Furthermore, having in fact been filed without express leave - no such leave ever having been granted by the Court, these pleadings are mere surplusage that did not need to be acted on, and did not give rise to any pending matter which would effectively forestall the finality of the 18 November 2008 Decision.

Clearly, these various pleadings reflect respondents’ desperate attempts to further delay the execution of the final decision in these consolidated cases. As pointed out in petitioners' Comment Ad Cautelam,[19] respondents, “by every possible guise and conceivable stratagem, have stubbornly and persistently sought to evade the finality of the 18 November 2008 Decision.” Notably, respondents craftily phrased and titled their motions based on the Court's last denial order or resolution, and deliberately avoided reference to the previous repeated denials by the Court.” The Court cannot countenance such dilatory tactics.

While it is perfectly fine for respondents to defend their cause with all the vigor and resources at their command, respondents may not be allowed to persist in presenting to the Court arguments which have already been pronounced by final judgment to be without merit and their motions for reconsideration of that judgment which have been denied.[20]

Litigations must end and terminate at some point. In the present cases, that point must be reckoned after the lapse of 15 days from the date of receipt by respondents' counsel of the 28 April 2009 Resolution denying the second motion for reconsideration or on 21 May 2009, as certified by the Deputy Clerk of Court and Chief of the Judicial Records Office. Whether respondents understood, or simply refuse to understand, the meaning of this statement, there is no other meaning than to consider G.R. Nos. 176951, 177499, and 178056 finally closed and terminated on 21 May 2009.

Well-entrenched is the rule that a decision that has acquired finality becomes immutable and unalterable,[21] no longer subject to attack and cannot be modified directly or indirectly, and the court which rendered it, including this Court, had lost jurisdiction to modify it.[22] The Court laid down this rule precisely “(1) to avoid delay in the administration of justice and thus procedurally, to make orderly the discharge of judicial business, and; (2) to put an end to judicial controversies, at the risk of occasional errors, which is why courts exist.”[23] As Justice Bersamin stated in Apo Fruits Corporation v. Court of Appeals:[24]

[T]he reason for the rule is that if, on the application of one party, the court could change its judgment to the prejudice of the other, it could thereafter, on application of the latter, again change the judgment and continue this practice indefinitely.

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The equity of a particular case must yield to the overmastering need of certainty and unalterability of judicial pronouncements. Emphasis supplied)

Hence, when the 18 November 2008 Decision became final on 21 May 2009, this Court can no longer entertain and consider further arguments or submissions from the parties respecting the correctness of the decision, and nothing more is left to be discussed, clarified or done in these cases.[25]

In fact, in recognition of the finality of the 18 November 2008 Decision, the Commission on Elections issued Resolution No. 8670, while the Department of Budget and Management issued Local Budget Memorandum No. 61.

COMELEC’s Resolution No. 8670 ordained that the voters in the 16 respondent municipalities shall vote not as cities, but as municipalities in the 10 May 2010 elections.

On the other hand, the Department of Budget and Management's Local Budget Memorandum No. 61 set forth the Fiscal Year 2009 Final Internal Revenue Allotment Allocation of all the legally existing cities and municipalities in the whole country and the reversion of the 16 “newly-created cities” to municipalities.

Moreover, House Bill No. 6303, introduced by Representatives Carmen L. Cari, Eduardo R. Gullas, Rodolfo G. Plaza, Philip A. Pichay, Thelma Z. Almario, Wilfrido Mark M. Enverga, Manuel S. Agyao, Sharee Ann T. Tan, Edelmiro A. Amante, Mujiv S. Hataman, Jocelyn Sy Limkaichong, Ferdinand R. Marcos, Teodulo M. Coquilla and Yevgeny Vincente B. Emano, sought to amend Republic Act No. 9009 by inserting the following paragraph:

THE INCOME REQUIREMENT PRESCRIBED HEREIN SHALL NOT APPLY TO MUNICIPALITIES WHICH WERE SOUGHT TO BE CONVERTED INTO CITIES AS EMBODIED IN BILLS FILED BEFORE JUNE 30, 2001 AND WHOSE CHARTERS HAVE ALREADY BEEN APPROVED BY THE SENATE AND THE HOUSE OF REPRESENTATIVES.

House Bill No. 6303, in proposing to amend Republic Act No. 9009 by exempting the 16 respondent municipalities from the increased income requirement under the Local Government Code, is undoubtedly an admission that the 18 November 2008 Decision had become final and the Cityhood Laws are indeed unconstitutional. House Bill No. 6303 is clearly but an “attempt to possibly rectify the conceded fatal defect in the Cityhood Laws.”

To repeat, the Court, by a majority vote, ruled that the 16 Cityhood Laws are unconstitutional in its 18 November 2008 Decision. The Court, by another majority vote, denied the first motion for reconsideration of the 18 November 2008 Decision. Then, the Court, by a split-vote, denied the second motion for reconsideration. Contrary to respondents' perception, there is nothing left unresolved by the Court. The 18 November 2008 Decision became final on 21 May 2009. As a consequence, it has become immutable and unalterable, no longer subject to attack and cannot be modified directly or indirectly by this Court, which had lost jurisdiction to alter it.

V. Final Note

Any ruling of this Court that a tie-vote on a motion for reconsideration reverses a prior majority vote on the main decision would wreak havoc on well-settled jurisprudence of this Court. Such an unprecedented ruling would resurrect contentious political issues long ago settled, such as the PIRMA initiative in Santiago and the people's initiative in Lambino. Countless other decisions of this Court would come back to haunt it, long after such decisions have become final and executory following the tie-votes on the motions for reconsideration which resulted in the denial of the motions. Such a ruling would destabilize not only this Court, but also the Executive and Legislative Branches of Government. Business transactions made pursuant to final decisions of this Court would also unravel for another round of litigation, dragging along innocent third parties who had relied on such prior final decisions of this Court. This Court cannot afford to unleash such a catastrophe on the nation.

Accordingly, I vote to EXPUNGE from the records, for being prohibited pleadings, the (1) Motion to Amend the Resolution of April 28, 2009; (2) Motion for Reconsideration of the Resolution of June 2, 2009; (3) Urgent Motion to Resolve Pending Incidents; and (4) Appeal to Honorable Chief Justice Reynato S. Puno and Associate Justice Antonio Eduardo B. Nachura to Participate in the Resolution of Respondents’ Motion for Reconsideration of the Resolution of June 2, 2009.

ANTONIO T. CARPIOAssociate Justice

JUANITO MARIANO, JR., et al., petitioners, vs. THE COMMISSION ON ELECTIONS, THE MUNICIPALITY OF MAKATI, HON. JEJOMAR BINAY, THE MUNICIPAL TREASURER, AND SANGGUNIANG BAYAN OF MAKATI, respondents.1995 Mar 7, G.R. No. 118577

PUNO, J.:At bench are two (2) petitions assailing certain provisions of Republic Act No. 7859 as unconstitutional. R.A. No. 7854 is entitled, "An Act Converting the Municipality of Makati Into a Highly Urbanized City to be known as the City of Makati." 1

G.R. No. 118577 involves a petition for prohibition and declaratory relief. It was filed by petitioners Juanito Mariano, Jr., Ligaya S. Bautista, Teresita Abang, Valentina Pitalvero, Rufino Caldoza, Florante Alba, and Perfecto Alba. Of the petitioners, only Mariano, Jr., is a resident of Makati. The others are residents of Ibayo Ususan, Taguig, Metro Manila. Suing as taxpayers, they assail as unconstitutional sections 2, 51 and 52 of R.A. No. 7854 on the following grounds:

"1. Section 2 of R.A. No. 7854 did not properly identify the land area or territorial jurisdiction of Makati by metes and bounds, with technical descriptions, in violation of Section 10, Article X of the Constitution, in relation to Sections 7 and 450 of the Local Government Code;2. Section 51 of R.A. No. 7854 attempts to alter or restart the "three-consecutive term" limit for local elective officials, in violation of Section 8, Article X and Section 7, Article VI of the Constitution.3. Section 52 of R.A. No. 7854 is unconstitutional for:

(a) it increased the legislative district of Makati only by special law (the Charter in violation of the constitutional provision requiring a general reapportionment law to be passed by Congress within three (3) years following the return of every census; (b) the increase in legislative district was not expressed in the title of the bill; and (c ) the addition of another legislative district in Makati is not in accord with Section 5 (3), as of the latest survey (1990 census), the population of Makati stands at only 450,000.

G.R. No. 118627 was filed by petitioner John H. Osmeña as senator, taxpayer, and concerned citizen. Petitioner assails section 52 of R.A. No. 7854 as unconstitutional on the same grounds as aforestated.

We find no merit in the petitions.

I

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Section 2, Article I of R.A. No. 7854 delineated the land area of the proposed city of Makati, thus:

Sec. 2. The City of Makati. - The Municipality of Makati shall be converted into a highly urbanized city to be known as the City of Makati, hereinafter referred to as the City, which shall comprise the present territory of the Municipality of Makati in Metropolitan Manila Area over which it has jurisdiction bounded on the northeast by Pasig River and beyond by the City of Mandaluyong and the Municipality of Pasig; on the southeast by the municipalities of Pateros and Taguig; on the southwest by the City of Pasay and the Municipality of Taguig; and the northwest, by the City of Manila.

The foregoing provision shall be without prejudice to the resolution by the appropriate agency or forum of existing boundary disputes or cases involving questions of territorial jurisdiction between the City of Makati and the adjoining local government units.

In G.R. No. 118577, petitioners claim that this delineation violates sections 7 and 450 of the Local Government Code which require that the area of a local government unit should be made by metes and bounds, with technical descriptions. 2

The importance of drawing with precise strokes the territorial boundaries of a local unit of government cannot be overemphasized. The boundaries must be clear for they define the limits of the territorial jurisdiction of a local government unit. It can legitimately exercise powers of government only within the limits of its territorial jurisdiction. Beyond these limits of its acts are ultra vires. Needless to state, any uncertainty in the boundaries of local government units will sow costly conflicts in the exercise of governmental powers which ultimately will prejudice the people's welfare. This is the evil sought to be avoided by the local government unit requiring that the land area of local government unit must be spelled out in metes and bounds, with technical descriptions.

Given the facts of the cases at bench, we cannot perceive how this evil can be brought about by the description made in section 2 of R.A. No. 7854. Petitioners have not demonstrated that the delineation of the land area of the proposed City of Makati will cause confusion as to its boundaries. We note that said delineation did not change even by an inch the land area previously covered by Makati as a municipality. Section 2 did not add, subtract, divide, or multiply the established land area of Makati. In language that cannot be any cleared, section 2 stated that the city's land area "shall comprise the present territory of the municipality."

The deliberations of Congress will reveal that there is a legitimate reason why the land area of the proposed City of Makati was not defined by metes and bounds, with technical descriptions. At the time of the consideration of R.A. No. 7854, the territorial dispute between the municipalities of Makati and Taguig over Fort Bonifacio was under court litigation. Out of a becoming sense of respect to a co-equal department of government, the legislations felt that the dispute should be left to the courts to decide. They did not want to foreclose the dispute by making a legislative finding of fact which could decide the issue. This would have ensued if they defined the land area of the proposed city by its exact metes and bounds, with technical descriptions. 3 We take judicial notice of the fact that Congress has also refrained from using the metes and bounds description of land areas of other local government units with unsettled boundary disputes. 4

We hold that the existence of a boundary dispute does not per se present an unsurmountable difficulty which will prevent Congress form defining with reasonable certitude the territorial jurisdiction of as local government unit. In the cases at bench, Congress maintained the existing boundaries of the proposed City of Makati but as an act of fairness, made them subject to the ultimate resolution by the courts. Considering these peculiar circumstances, we are not prepared to hold that section 2 of R.A. 7854 is unconstitutional. We sustain the submission of the Solicitor General in this regard, viz:

"Going now to Sections 7 and 450 of the Local Government Code, it is beyond cavil that the requirement stated therein, viz: 'the territorial jurisdiction of newly created or converted cities should be described by metes and bounds, with technical descriptions' - was made in order to provide a means by which the area of said cities may be reasonably ascertained. In other words, the requirement on metes and bounds was meant merely as tool in the establishment of local government units. It is not an end in itself. Ergo, so long as the territorial jurisdiction of a city may be reasonably ascertained, i.e., by referring to common boundaries with neighboring municipalities, as in this case, then, it may be concluded that the legislative intent behind the law has been sufficiently served.

Certainly, Congress did not intend that laws creating new cities must contain therein detailed technical descriptions similar to those appearing in Torrens titles, as petitioners seem to imply. To require such description in the law as a condition sine qua non for its validity would be to defeat the very purpose which the Local Government Code seeks to serve. The manifest intent of the Code is to empower local government units and to give them their rightful due. It seeks to make local governments more responsive to the needs of their constituents while at the same time serving as a vital cog No. 7854 on the mere ground that no cadastral type of description was used in the law would serve the letter but defeat the spirit of the Code. It then becomes a case of a master serving the slave, instead of the other way around. This could not be the intendment of the law.

Too well settled is the rule that laws must be enforced when ascertained, although it may not be consistent with the strict letter of the statute. Courts will not follow the letter of the statute when to do so would depart from the true intent of the legislature or would otherwise yield conclusions inconsistent with the general purpose of the act (Torres v. Limjap, 56 Phil., 141; Tañada v. Cuenco, 103 Phil. 1051; Hidalgo v. Hidalgo, 33 SCRA 1105). Legislation is an active instrument of government which, for purposes of interpretation, means that laws have ends to achieve, and statutes should be so construed as not to defeat but to carry out such ends and purposes (Bocobo v. Estanislao, 72 SCRA 520). The same rule must indubitable apply to the case at bar.

IIPetitioners in G.R. No. 118577 also assail the constitutionality of section 51, Article X of R.A. No. 7854. Section 51 states:

"Sec. 51. Officials of the City of Makati. - The present elective officials of the Municipality of Makati shall continue as the officials of the City of Makati and shall exercise their powers and functions until such time that a new election is held and the duly elected officials shall have already qualified and assume their offices: Provided, The new city will acquire a new corporate existence. The appointive officials and employees of the City shall likewise continue exercising the functions and duties and they shall be automatically absorbed by the city government of the City of Makati."

They contend that this section collides with section 8, Article X and section 7, Article VI of the Constitution which provide:

"Sec. 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected.

xxx xxx xxx

Sec. 7. The members of the House of Representatives shall be elected for a term of three years which shall begin, unless otherwise provided by law, at noon on the thirtieth day of June next following their election.

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No member of the House of Representatives shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected."

Petitioners stress that under these provisions, elective local officials, including Members of the House of Representatives, have a term of three (3) years and are prohibited from serving for more than three (3) consecutive terms. They argue that by providing that the new city shall acquire a new corporate existence, section 51 of R.A. No. 7854 restarts the term of the present municipal elective officials of Makati and disregards the terms previously serve by them. In particular, petitioners point that section 51 favors the incumbent Makati mayor, respondent Jejomar Binay, who was already served for two (2) consecutive terms. They further argue that should Mayor Binay decide to run and eventually win as city mayor in the coming elections, he can still run for the same position in 1998 and seek another three-year consecutive term since his previous three-year consecutive term as municipal mayor would not be counted. Thus, petitioners conclude that said section 51 has been conveniently crafted to suit the political ambitions of respondent Mayor Binay.

We cannot entertain this challenge to the constitutionality of section 51. The requirements before a litigant can challenge the constitutionality of a law are well-delineated. They are: (1) there must be an actual case or controversy; (2) the question of constitutionality must be raised by the proper party; (3) the constitutional question must be raised at the earliest possible opportunity; and (4) the decision on the constitutional question must be necessary to the determination of the case itself. 5

Petitioners have far from complied with these requirements. The petition is premised on the occurrence of many contingent events, i.e., that Mayor Binay will run again in this coming mayoralty elections; that he would be re-elected in said elections; and that he would seek re-election for the same post in the 1998 elections. Considering that these contingencies may or may not happen, petitioners merely pose a hypothetical issue which has yet to ripen to an actual case or controversy. Petitioners who are residents of Taguig (except Mariano) are not also the proper parties to raise this abstract issue. Worse, they hoist this futuristic issue in a petition for declaratory relief over which this Court has no jurisdiction.

IIIFinally, petitioners in two (2) cases at bench assail the constitutionality of section 52, Article X of R.A. 7854. Section 52 of the Charter provides:

"Sec. 52. Legislative Districts. - Upon its conversion into a highly-urbanized city, Makati shall thereafter have at least two (2) legislative districts that shall initially correspond to the two (2) existing districts created under section 3(a) of republic Act No. 7166 as implemented by the Commission on Elections to commence at the next national elections to be held after the effectivity of this Act. Henceforth, barangays Magallanes, Dasmariñas, and Forbes shall be with the first district, in lieu of Barangay Guadalupe-Viejo which shall form part of the second district." underscoring supplied)

They contend that the addition of another legislative district in Makati is unconstitutional for: (1) reapportionment 6 cannot made by a special law; (2) the addition of a legislative district is not expressed in the title of the bill; 7 and (3) Makati's population, as per the 1990 census, stands at only four hundred fifty thousand (450,000).

These issues have been laid to rest in the recent case of Tobias v. Abalos. 8 In said case, we ruled that reapportionment of legislative districts may be made through a special law, such as in the charter of a new city. The Constitution 9 clearly provides that Congress shall be composed of not more than two hundred fifty (250) members, unless otherwise fixed by law. As thus worded, the Constitution did not preclude Congress from increasing its membership by passing a law, other than a general reapportionment law. This is exactly what was done by Congress in enacting R.A. No. 7854 and providing for an increase in Makati's legislative district. Moreover, to hold that reapportionment can only be made through a general apportionment law, with a review of all the legislative districts allotted to each local government unit nationwide, would create an inequitable situation where a new city or province created by Congress will be denied legislative representation for an indeterminate period of time. 10 That intolerable situation will deprive the people of a new city or province a particle of their sovereignty. 11 Sovereignty cannot admit of any kind of subtraction. It is indivisible. It must be forever whole or it is not sovereignty.

Petitioners cannot insist that the addition of another legislative district in Makati is not in accord with section 5(3); Article VI 12 of the Constitution for as of the latest survey (1990 census), the population of Makati stands at only four hundred fifty thousand (450,000). 13 Said Section provides, inter alia, that a city with a population of at least two hundred fifty thousand (250,000) shall have at least one representative. Even granting that the population of Makati as of the 1990 census stood at four hundred fifty thousand (450,000), its legislative district may still be increased since it has met the minimum population requirement of two hundred fifty thousand (250,000). In fact, section 3 of the Ordinance appended to the Constitution provides that a city whose population has increased to more than two hundred fifty thousand (250,000) shall be entitled to at least one congressional representative. 14

Finally, we do not find merit in petitioners' contention that the creation of an additional legislative district in Makati should have been expressly stated in the title of the bill. In the same case of Tobias v. Abalos, op cit, we reiterated the policy of the Court favoring a liberal construction of the "one title-one subject" rule so as not to impede legislation. To be sure, the Constitution does not command that the title of a law should exactly mirror, fully index, or completely catalogue all its details. Hence, we ruled that "it should be sufficient compliance if the title expresses the general subject and all the provisions are germane to such general subject."

WHEREFORE. the petitions are hereby DISMISSED for lack of merit. No costs.

THE MUNICIPALITY OF MALABANG, LANAO DEL SUR and AMER MACAORAO BALINDONG, petitioners, vs. PANGANDAPUN BENITO, HADJI NORODIN MACAPUNUNG, HADJI HASAN MACARAMPAD, FREDERICK V. DUJERTE, MONDACO ONTAL, MARONSONG ANDOY, MACALABA INDAR LAO, respondents.1969 Mar 28, G.R. No. L-28113

CASTRO, J.:The petitioner Amer Macaorao Balindong is the mayor of Malabang, Lanao del Sur, while the respondent Pangandapun Benito is the mayor, and the rest of the respondents are the councilors, of the municipality of Balabagan of the same province. Balabagan was formerly a part of the municipality of Malabang, having been created on March 15, 1960, by Executive Order 386 of the then President Carlos P. Garcia, out of barrios and sitios 1 of the latter municipality.

The petitioners brought this action for prohibition to nullify Executive Order 386 and to restrain the respondent municipal officials from performing the functions of their respective offices, relying on the ruling of this Court in Pelaez v. Auditor General 2 and Municipality of San Joaquin v. Siva. 3

In Pelaez this Court, through Mr. Justice (now Chief Justice) Concepcion, ruled: (1) that Section 23 of Republic Act 2370 [Barrio Charter Act, approved January 1, 1960], by vesting the power to create barrios in the provincial board, is a "statutory denial of the presidential authority to create a new barrio [and] implies a negation of the bigger power to create municipalities," and (2) that Section 68 of the Administrative Code, insofar as it gives the President the power to create municipalities, is unconstitutional (a) because it constitutes an undue delegation of legislative power and (b) because it offends against Section 10 (1) of Article VII of the Constitution, which limits the President's power over local governments to

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mere supervision. As this Court summed up its discussion: "In short, even if it did not entail an undue delegation of legislative powers, as it certainly does, said Section 68, as part of the Revised Administrative Code, approved on March 10, 1917, must be deemed repealed by the subsequent adoption of the Constitution, in 1935, which is utterly incompatible and inconsistent with said statutory enactment."

On the other hand, the respondents, while admitting the facts alleged in the petition, nevertheless argue that the rule announced in Pelaez can have no application in this case because unlike the municipalities involved in Pelaez, the municipality of Balabagan is at least a de facto corporation, having been organized under color of a statute before this was declared unconstitutional, its officers having been either elected or appointed, and the municipality itself having discharged its corporate functions for the past five years preceding the institution of this action. It is contended that as a de facto corporation, its existence cannot be collaterally attacked, although it may be inquired into directly in an action for quo warranto at the instance of the State and not of an individual like the petitioner Balindong.

It is indeed true that, generally, an inquiry into the legal existence of a municipality is reserved to the State in a proceeding for quo warranto or other direct proceeding, and that only in a few exceptions may a private person exercise this function of government. 4 But the rule disallowing collateral attacks applies only where the municipal corporation is at least a de facto corporation. 5 For where it is neither a corporation de jure nor de facto, but a nullity, the rule is that its existence may be questioned collaterally or directly in any action or proceeding by any one whose rights or interests are affected thereby, including the citizens of the territory incorporated unless they are estopped by their conduct from doing so. 6

And so the threshold question is whether the municipality of Balabagan is a de facto corporation. As earlier stated, the claim that it is rests on the fact that it was organized before the promulgation of this Court's decision in Pelaez. 7

Accordingly, we address ourselves to the question whether a statute can lend color of validity to an attempted organization of a municipality despite the fact that such statute is subsequently declared unconstitutional.

This has been a litigiously prolific question, sharply dividing courts in the United States. Thus, some hold that a de facto corporation cannot exist where the statute or charter creating it is unconstitutional because there can be no de facto corporation where there can be no de jure one, 8 while others hold otherwise on the theory that a statute is binding until it is condemned as unconstitutional. 9

An early article in the Yale Law Journal offers the following analysis:

"It appears that the true basis for denying to the corporation a de facto status lay in the absence of any legislative act to give vitality to its creation. An examination of the cases holding, some of them unreservedly, that a de facto office or municipal corporation can exist under color of an unconstitutional statute will reveal that in no instance did the invalid act give life to the corporation, but that either in other valid acts or in the constitution itself the office or the corporation was potentially created . . .

"The principle that color of title under an unconstitutional statute can exist only where there is some other valid law under which the organization may be effected, or at least an authority in potencia by the state constitution, has its counterpart in the negative propositions that there can be no color of authority in an unconstitutional statute that plainly so appears on its face or that attempts to authorize the ousting of a de jure or de facto municipal corporation upon the same territory, in the one case the fact would imply the imputation of had faith, in the other the new organization must be regarded as a mere usurper . . .

"As a result of this analysis of the cases the following principles may be deduced which seem to reconcile the apparently conflicting decisions:

"I. The color of authority requisite to the organization of a de facto municipal corporation may be:

"1. A valid law enacted by the legislature.

"2. An unconstitutional law, valid on its face, which has either (a) been upheld for a time by the courts or (b) not yet been declared void; provided that a warrant for its creation can be found in some other valid law or in the recognition of its potential existence by the general laws or constitution of the state.

"II. There can be no de facto municipal corporation unless either directly or potentially, such a de jure corporation is authorized by some legislative fiat.

"III. There can be no color of authority in an unconstitutional statute alone, the invalidity of which is apparent on its face.

"IV. There can be no de facto corporation created to take place of an existing de jure corporation, as such organization would clearly be an usurper." 10

In the cases where a de facto municipal corporation was recognized as such despite the fact that the statute creating it was later invalidated, the decisions could fairly be made to rest on the consideration that there was some other valid law giving corporate vitality to the organization. Hence, in the case at bar, the mere fact that Balabagan was organized at a time when the statute had not been invalidated cannot conceivably make it a de facto corporation, as, independently of the Administrative Code provision in question, there is no other valid statute to give color of authority to its creation. Indeed, in Municipality of San Joaquin v. Siva, 11 this Court granted a similar petition for prohibition and nullified an executive order creating the municipality of Lawigan in Iloilo on the basis of the Pelaez ruling, despite the fact that the municipality was created in 1961, before Section 68 of the Administrative Code, under which the President had acted, was invalidated. Of course the issue of de facto municipal corporation did not arise in that case.

In Norton v. Shelby County, 12 Mr. Justice Field said: "An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed." Accordingly, he held that bonds issued by a board of commissioners created under an invalid statute were unenforceable.

Executive Order 386 "created no office." This is not to say, however, that the acts done by the municipality of Balabagan in the exercise of its corporate powers are a nullity because the executive order "is, in legal contemplation, as inoperative as though it had never been passed." For the existence of Executive Order 386 is "an operative fact which cannot justly be ignored." As Chief Justice Hughes explained in Chicot County Drainage District v. Baxter State Bank: 13 "The courts below have proceeded on the theory that the Act of Congress, having been found to be unconstitutional, was not a law; that it was inoperative, conferring no rights and imposing no duties, and hence affording no basis for the challenged decree. Norton v. Shelby County, 118 U.S. 425, 442; Chicago, I. & L. Ry. Co. v. Hackett, 228 U.S. 559, 566. It is quite clear, however, that such broad statements as to the effect of a determination of unconstitutionality must be taken with qualifications. The actual existence of a statute, prior to such a determination, in 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

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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."

There is then no basis for the respondents' apprehension that the invalidation of the executive order creating Balabagan would have the effect of unsettling many an act done in reliance upon the validity of the creation of that municipality. 14

ACCORDINGLY, the petition is granted, Executive Order 386 is declared void, and the respondents are hereby permanently restrained from performing the duties and functions of their respective offices. No pronouncement as to costs.

Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez and Capistrano, JJ., concur.

Teehankee and Barredo, JJ., did not take part.

Separate Opinions

FERNANDO, J., concurring:

I concur fully with the well-written opinion of Justice Castro. It breaks new ground; it strikes out new paths. It is precisely because of its impact on the power of judicial review of executive acts that I deem a few additional words would not be amiss.

1. Insofar as the effect of a declaration of unconstitutionality is concerned, the latter and more realistic trend reflected in Chicot County Drainage District v. Baxter State Bank 1 had previously elicited our approval. Thus: "'Rutter vs. Esteban (93 Phil., 68) may be construed to mean that at the time of the decision the Moratorium law could no longer be validly applied because of the prevailing circumstances. At any rate, although the general rule is that an unconstitutional statute - 'confers no right, creates no office, affords no protection and justifies no acts performed under it.' . . . there are several instances wherein courts, out of equity, have relaxed its operation . . . or qualified its effects 'since the actual existence of a statute prior to such declaration is an operative fact, and may have consequences which cannot justly be ignored' . . . and a realistic approach is eroding the general doctrine . . .'" 2 Also: "We have taken note of the fact that on June 30, 1961, Section 25 of Reorganization Plan No. 20-A had been declared unconstitutional by this Court in the case of Corominas, et al. v. The Labor Standards Commission, et al., . . . It appears, however, that the plaintiff had filed his claim before Regional Office No. 4 of the Department of Labor on July 26, 1960 or about one year before said Section 25 had been declared unconstitutional. The circumstance that Section 25 of Reorganization Plan No. 20-A had been declared unconstitutional should not be counted against the defendant in the present case. In the case of Manila Motor Co., Inc. v. Flores, . . ., this Court upheld the right of a party under the Moratorium Law which had accrued in his favor before the said law was declared unconstitutional by this Court in the case of Rutter v. Esteban, 93 Phil., 68." 3

2. Nothing can be clearer therefore in the light of the two above cases than that a previous declaration of invalidity of legislative acts would not be bereft of legal results. Would that view hold true of nullification of executive acts? There might have been doubts as to the correct answer before. There is none now.

A judicial decision annulling a presidential exercise of authority 4 is not without its effect either. That much is evident from the holding now reached. The act stricken down, whether proceeding from the legislature or the Executive, could in the language of the Chicot County case, be considered, prior to the declaration of invalidity, as "an operative fact and may have consequences which cannot justly be ignored."

Thus the frontiers of the law have been extended, a doctrine which to some may come into play when a statute is voided is now considered equally applicable to a Presidential act that has met a similar fate. Such a result should not occasion surprise. That is to be expected.

There would be unjustified deviation from the doctrine of separation of powers if a consequence attached to the annulment of a statute is considered as not operative where an executive order is involved. The doctrine of co-equal or coordinate departments would be meaningless if a discrimination of the above sort were considered permissible. The cognizance taken of the prior existence of an enactment subsequently declared unconstitutional applies as well to a Presidential act thereafter successfully assailed. There was a time when it too did exist and, as such, a fact to be reckoned with, though an infirm source of a legal right, if, as subsequently held, considered violative of a constitutional command.

3. Precisionists may cavil at the above view; they may assert, and with some degree of plausibility, that the holding in the Pelaez case goes no further than to locate a statutory infirmity in the Presidential act there challenged, creating municipal corporations under what the then Executive considered a grant of authority found in the Revised Administrative Code. 5 Such a power having been found not to exist, the decision, so it may be asserted, did not reach the constitutional issue of non-delegation of legislative power. Tersely put, there was no finding of nullity based on a violation of the Constitution.

To such a claim, it suffices to answer that while the challenged Administrative Code provision was in fact held as not containing within itself the authority conferred on the President to create municipal corporations, the opinion by the then Justice, now Chief Justice, Concepcion went further. As was pointed out by him: "Although Congress may delegate to another branch of the Government the power to fill in the details in the execution, enforcement or administration of a law, it is essential, to forestall a violation of the principle of separation of powers, that said law: (a) be complete in itself - it must set forth therein the policy to be executed, carried out or implemented by the delegate - and (b) fix a standard - the limits of which are sufficiently determinate or determinable - to which the delegate must conform in the performance of his functions. Indeed, without a statutory declaration of policy, the delegate would, in effect, make or formulate such policy, which is the essence of every law; and without the aforementioned standard, there would be no means to determine, with reasonable certainty, whether the delegate has acted within or beyond the scope of his authority. Hence, he could thereby arrogate upon himself the power, not only to make the law, but also - and this is worse - to unmake it, by adopting measures inconsistent with the end sought to be attained by the Act of Congress, thus nullifying the principle of separation of powers and the system of checks and balances, and, consequently, undermining the very foundation of our Republican system." 6

From which, it would follow, in the language of the opinion; "Section 68 of the Revised Administrative Code does not meet these well-settled requirements for a valid delegation of the power to fix the details in the enforcement of a law. It does not enunciate any policy to be carried out or implemented by the President. Neither does it give a standard sufficiently precise to avoid the evil effects above referred to." 7

It is thus clear that while it might not be strictly accurate to advance the view that there was a finding of unconstitutionality of a challenged statutory norm, there could be no objection to the view that the holding was one of unconstitutional application.

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Nor is this all. If there be admission of the force of the assertion that the Pelaez opinion went no further than to locate in the challenged Executive orders creating municipal corporations an act in excess of statutory authority, then our decision in this case is all the more noteworthy for the more hospitable scope accorded the Chicot doctrine. For as originally formulated, it would merely recognize that during its existence, prior to its being declared violative of the constitute, the statute must be deemed an operative fact. Today we decide that such a doctrine extends to a Presidential act held void not only on the ground of unconstitutional infirmity but also because in excess of the statutory power conferred. That to me is the more significant aspect of this decision. To repeat, to that point of view I yield full concurrence.

I do so because it appears to me a logical corollary to the principle of separation of powers. Once we accept the basic doctrine that each department as a coordinate agency of government is entitled to the respect of the other two, it would seem to follow that at the very least, there is a presumption of the validity of the act performed by it, unless subsequently declared void in accordance with legally accepted principles. The rule of law cannot be satisfied with anything less.

Since under our Constitution, judicial review exists precisely to test the validity of executive or legislative acts in an appropriate legal proceeding, there is always the possibility of their being declared inoperative and void. Realism compels the acceptance of the thought that there could be a time-lag between the initiation of such Presidential or congressional exercise of power and the final declaration of nullity. In the meanwhile, it would be productive of confusion, perhaps at times even of chaos, if the parties affected were left free to speculate as to its fate being one of doom, thus leaving them free to disobey it in the meanwhile. Since, however, the orderly processes of government, not to mention common sense, requires that the presumption of validity be accorded an act of Congress or an order of the President, it would be less than fair, and it may be productive of injustice, if no notice of its existence as a fact be paid to it, even if thereafter, it is stricken down as contrary, in the case of Presidential act, either to the Constitution or a controlling statute.

The far-reaching import in the above sense of the decision we now render calls, to my mind, for an articulation of further reflection on its varied implications. We have here an illustration, to paraphrase Dean Pound, of the law being stable and yet far from standing still. That is as it ought to be; that is how law grows. It is in that sense that the judicial process is impressed with creativity, admittedly within limits rather narrowly confined. That in itself is to hold fast to the appropriate role of the judiciary, far from insignificant as our decision discloses. Hence this separate concurring opinion, which, I trust, will make manifest why my agreement with what Justice Castro had so ably expressed in the opinion of the Court is wholehearted and entire.

Concepcion, C.J., concurs.

EMMANUEL PELAEZ, petitioner, vs. THE AUDITOR GENERAL, respondent.1965 Dec 24, G.R. No. L-23825

CONCEPCION, J.:During the period from September 4 to October 29,1964 the President of the Philippines, purporting to act pursuant to Section 68 of the Revised Administrative Code, issued Executive Orders Nos. 93 to 121, 124 and 126 to 129, creating thirty-three (33) municipalities enumerated in the margin. 1 Soon after the date last mentioned, or on November 10, 1964, petitioner Emmanuel Pelaez, as Vice-President of the Philippines and as taxpayer, instituted the present special civil action, for a writ of prohibition with preliminary injunction, against the Auditor General, to restrain him, as well as his representatives and agents, from passing in audit any expenditure of public funds in implementation of said executive orders and/or any disbursement by said municipalities.Petitioner alleges that said executive orders are null and void, upon the ground that said Section 68 has been impliedly repealed by Republic Act 2370 and constitutes an undue delegation of legislative power. Respondent maintains the contrary view and avers that the present action is premature and that not all proper parties — referring to the officials of the new political subdivisions in question — have been impleaded. Subsequently, the mayors of several municipalities adversely affected by the aforementioned executive orders — because the latter have taken away from the former the barrios composing the new political subdivision — intervened in the case. Moreover, Attorneys Enrique M. Fernando and Emma Quisumbing-Fernando were allowed to and did appear as amici curiae.The third paragraph of Section 3 of Republic Act No. 2370, reads:"Barrios shall not be created or their boundaries altered nor their names changed except under the provisions of this Act or by Act of Congress.Pursuant to the first two (2) paragraphs of the same Section 3:"All barrios existing at the time of the passage of this Act shall come under the provisions hereof."Upon petition of a majority of the voters in the areas affected, a new barrio may be created or the name of an existing one may be changed by the provincial board of the province, upon recommendation of the council of the municipality or municipalities in which the proposed barrio is situated. The recommendation of the municipal council shall be embodied in a resolution approved by at least two-thirds of the entire membership of the said council: Provided, however, That no new barrio may be created if its population is less than five hundred persons."Hence, since January 1, 1960, when Republic Act No. 2370 became effective, barrios may "not be created or their boundaries altered nor their names changed" except by Act of Congress or of the corresponding provincial board "upon petition of a majority of the voters in the areas affected" and the "recommendation of the council of the municipality or municipalities in which the proposed barrio is situated." Petitioner argues, accordingly: "If the President, under this new law, cannot even create a barrio, can he create a municipality which is composed of several barrios, since barrios are units of municipalities?"Respondent answers in the affirmative, upon the theory that a new municipality can be created without creating new barrios, such as, by placing old barrios under the jurisdiction of the new municipality. This theory overlooks, however, the main import of the petitioner's argument, which is that the statutory denial of the presidential authority to create a new barrio implies a negation of the bigger power to create municipalities, each of which consists of several barrios. The cogency and force of this argument is too obvious to be denied or even questioned. Founded upon logic and experience, it cannot be offset except by a clear manifestation of the intent of Congress to the contrary, and no such manifestation, subsequent to the passage of Republic Act No. 2370. has been brought to our attention.Moreover, section 68 of the Revised Administrative Code, upon which the disputed executive orders are based, provides:"The (Governor-General) President of the Philippines may by executive order define the boundary, or boundaries, of any province, sub-province, municipality, [township] municipal district or other political subdivision, and increase or diminish the territory comprised therein, may divide any province into one or more subprovinces, separate any political division other than a province, into such portions as may be required, merge any of such subdivisions or portions with another, name any new subdivision so created, and may change the seat of government within any subdivision to such place therein as the public welfare may require: Provided, That the authorization of the (Philippine Legislature) Congress of the Philippines shall first be obtained whenever the boundary of any province or subprovince is to be defined or any province is to be divided into one or more subprovinces. When action by the (Governor-General) President of the Philippines in accordance herewith makes necessary a change of the territory under the jurisdiction of any administrative officer or any judicial officer, the (Governor-General) President of the Philippines, with the recommendation and advice of the head of the Department having executive control of such officer, shall redistrict the territory of the several officers affected and assign such officers to the new districts so formed."Upon the changing of the limits of political divisions in pursuance of the foregoing authority, an equitable distribution of the funds and obligations of the divisions thereby affected shall be made in such manner as may be recommended by the (Insular Auditor) Auditor General and approved by the (Governor-General) President of the Philippines."

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Respondent alleges that the power of the President to create municipalities under this section does not amount to an undue delegation of legislative power, relying upon Municipality of Cardona vs. Municipality of Binañgonan (36 Phil. 547), which, he claims, has settled it. Such claim is untenable, for said case involved, not the creation of a new municipality, but a mere transfer of territory — from an already existing municipality (Cardona) to another municipality (Binañgonan), likewise, existing at the time of and prior to said transfer (See Gov't of the P.I. ex rel. Municipality of Cardona vs. Municipality of Binañgonan [34 Phil. 518, 519-520], — in consequence of the fixing and definition, pursuant to Act No. 1748, of the common boundaries of two municipalities.It is obvious, however, that, whereas the power to fix such common boundary, in order to avoid or settle conflicts of jurisdiction between adjoining municipalities, may partake of an administrative nature — involving, as it does, the adoption of means and ways to carry into effect the law creating said municipalities — the authority to create municipal corporations is essentially legislative in nature. In the language of other courts, it is "strictly a legislative function" (State ex rel. Higgins vs. Aicklen, 119 S. 425, January 2, 1959) or "solely and exclusively the exercise of legislative power" (Udall vs. Severn, May 29, 1938, 79 P. 2d. 347-349). As the Supreme Court of Washington has put it (Territory ex rel. Kelly vs. Stewart, February 13, 1890, 23 Pac. 405, 409), "municipal corporations are purely the creatures of statutes."Although 1 Congress may delegate to another branch of the government the power to fill in the details in the execution, enforcement or administration of a law, it is essential, to forestall a violation of the principle of separation of powers, that said law: (a) be complete in itself — it must set forth therein the policy to be executed, carried out or implemented by the delegate 2 — and (b) fix a standard — the limits of which are sufficiently determinate or determinable — to which the delegate must conform in the performance of his functions. 2 Indeed, without a statutory declaration of policy, the delegate would, in effect, make or formulate such policy, which is the essence of every law; and, without the aforementioned standard, there would be no means to determine, with reasonable certainty, whether the delegate has acted within or beyond the scope of his authority. 2 Hence, he could thereby arrogate upon himself the power, not only to make the law, but, also — and this is worse — to unmake it, by adopting measures inconsistent with the end sought to be attained by the Act of Congress, thus nullifying the principle of separation of powers and the system of checks and balances, and, consequently undermining the very foundation of our Republican system.Section 68 of the Revised Administrative Code does not meet these well settled requirements for a valid delegation of the power to fix the details in the enforcement of a law. It does not enunciate any policy to be carried out or implemented by the President. Neither does it give a standard sufficiently precise to avoid the evil effects above referred to. In this connection, we do not overlook the fact that, under the last clause of the first sentence of Section 68, the President:". . . may change the seat of the government within any subdivision to such place therein as the public welfare may require."It is apparent, however, from the language of this clause, that the phrase "as the public welfare may require" qualifies, not the clauses preceding the one just quoted, but only the place to which the seat of the government may be transferred. This fact becomes more apparent when we consider that said Section 68 was originally Section 1 of Act No. 1748, 3 which provided, that "whenever in the judgment of the Governor-General the public welfare requires, he may, by executive order", effect the changes enumerated therein (as well as in said Section 68), including the change of the seat of the government "to such place . . . as the public interest requires". The opening statement of said Section 1 of Act No. 1748 — which was not included in Section 68 of the Revised Administrative Code — governed the time at which, or the conditions under which, the powers therein conferred could be exercised; whereas the last part of the first sentence of said section referred exclusively to the place to which the seat of the government was to be transferred.At any rate, the conclusion would be the same, insofar as the case at bar is concerned, even if we assumed that the phrase "as the public welfare may require", in said Section 68, qualifies all other clauses thereof. It is true that in Calalang vs. William (70 Phil. 726) and People vs. Rosenthal (68 Phil. 328), this Court had upheld "public welfare" and "public interest", respectively, as sufficient standards for a valid delegation of the authority to execute the law. But, the doctrine laid down in these cases — as all judicial pronouncements — must be construed in relation to the specific facts and issues involved therein, outside of which they do not constitute precedents and have no binding effect. 4 The law construed in the Calalang case conferred upon the Director of Public Works, with the approval of the Secretary of Public Works and Communications, the power to issue rules and regulations to promote safe transit upon national roads and streets. Upon the other hand, the Rosenthal case referred to the authority of the Insular Treasurer, under Act No. 2581, to issue and cancel certificates or permits for the sale of speculative securities. Both cases involved grants to administrative officers of powers related to the exercise of their administrative functions, calling for the determination of questions of fact.Such is not the nature of the powers dealt with in section 68. As above indicated, the creation of municipalities, is not an administrative function, but one which is essentially and eminently legislative in character. The question whether or not "public interest" demands the exercise of such power is not one of fact. It is "purely a legislative question" (Carolina-Virginia Coastal Highway vs. Coastal Turnpike Authority, 74 S.E. 2d., 310-313, 315-318), or a political question (Udall vs. Severn, 79 P. 2d. 347-349). As the Supreme Court of Wisconsin has aptly characterized it, "the question as to whether incorporation is for the best interest of the community in any case is emphatically a question of public policy and statecraft" (In re Village of North Milwaukee, 67 N. W. 1033, 1035-1037).For this reason, courts of justice have annulled, as constituting undue delegation of legislative powers, state laws granting the judicial department the power to determine whether certain territories should be annexed to a particular municipality (Udall vs. Severn, supra, 358-359); or vesting in a Commission the right to determine the plan and frame of government of proposed villages and what functions shall be exercised by the same, although the powers and functions of the village are specifically limited by statute (In re Municipal Charters, 86 Atl. 307-308); or conferring upon courts the authority to declare a given town or village incorporated, and designate its meter and bounds, upon petition of a majority of the taxable inhabitants thereof, setting forth the area desired to be included in such village (Territory ex rel Kelly vs. Stewart, 23 Pac. 405-409); or authorizing the territory of a town, containing a given area and population, to be incorporated as a town, on certain steps being taken by the inhabitants thereof and on certain determination by a court and subsequent vote of the inhabitants in favor thereof, insofar as the court is allowed to determine whether the lands embraced in the petition "ought justly" to be included in the village, and whether the interest of the inhabitants will be promoted by such incorporation, and to enlarge and diminish the boundaries of the proposed village "as justice may require" (In re Villages of North Milwaukee, 67 N.W. 1035- 1037); or creating a Municipal Board of Control which shall determine whether or not the laying out, construction or operation of a toll road is in the "public interest" and whether the requirements of the law had been complied with, in which case the Board shall enter an order creating a municipal corporation and fixing the name of the same (Carolina-Virginia Coastal Highway vs. Coastal Turnpike Authority, 74 S. E. 2d. 310).Insofar as the validity of a delegation of power by Congress to the President is concerned, the case of Schechter Poultry Corporation vs. U. S. (79 L. ed. 1570) is quite relevant to the one at bar. The Schechter case involved the constitutionality of Section 3 of the National Industrial Recovery Act authorizing the President of the United States to approve "codes of fair competition" submitted to him by one or more trade or industrial associations or corporations which "impose no inequitable restrictions on admission to membership therein and are truly representative," provided that such codes are not designed "to promote monopolies or to eliminate or oppress small enterprises and will not operate to discriminate against them, and will tend to effectuate the policy" of said Act. The Federal Supreme Court held:"To summarize and conclude upon this point: Sec. 3 of the Recovery Act is without precedent. It supplies no standards for any trade, industry or activity. It does not undertake to prescribe rules of conduct to be applied to particular states of fact determined by appropriate administrative procedure. Instead of prescribing rules of conduct, it authorizes the making of codes to prescribe them. For that legislative undertaking, Sec. 3 sets up no standards, aside from the statement of the general aims of rehabilitation, correction and expansion described in Sec. 1. In view of the scope of that broad declaration, and of the nature of the few restrictions that are imposed, the discretion of the President in approving or prescribing codes, and thus enacting laws for the government of trade and industry throughout the country, is virtually unfettered. We think that the code-making authority thus conferred is an unconstitutional delegation of legislative power."If the term "unfair competition" is so broad as to vest in the President a discretion that is "virtually unfettered", and, consequently, tantamount to a delegation of legislative power, it is obvious that "public welfare", which has even a broader connotation, leads to the same result. In fact, if the validity of the delegation of powers made in Section 68 were upheld,

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there would no longer be any legal impediment to a statutory grant of authority to the President to do anything which, in his opinion, may be required by public welfare or public interest. Such grant of authority would be a virtual abdication of the powers of Congress in favor of the Executive, and would bring about a total collapse of the democratic system established by our Constitution, which it is the special duty and privilege of this Court to uphold.It may not be amiss to note that the executive orders in question were issued after the legislative bills for the creation of the municipalities involved in this case had failed to pass Congress. A better proof of the fact that the issuance of said executive orders entails the exercise of purely legislative functions can hardly be given.Again, Section 10 (1) of Article VII of our fundamental law ordains:"The President shall have control of all executive departments, bureaus or offices, exercise general supervision over all local governments as may be provided by law, and take care that the laws be faithfully executed."The power of control under this provision implies the right of the President to interfere in the exercise of such discretion as may be vested by law in the officers of the executive departments, bureaus, or offices of the national government, as well as to act in lieu of such officers. This power is denied by the Constitution to the Executive, insofar as local governments are concerned. With respect to the latter, the fundamental law permits him to wield no more authority than that of checking whether said local governments or the officers thereof perform their duties as provided by statutory enactments. Hence, the President cannot interfere with local governments, so long as the same or its officers act within the scope of their authority. He may not enact an ordinance which the municipal council has failed or refused to pass, even if it had thereby violated a duty imposed thereto by law, although he may see to it that the corresponding provincial officials take appropriate disciplinary action therefor. Neither may he veto, set aside or annul an ordinance passed by said council within the scope of its jurisdiction, no matter how patently unwise it may be. He may not even suspend an elective official of a regular municipality or take any disciplinary action against him, except on appeal from a decision of the corresponding provincial board. 5 Upon the other hand, if the President could create a municipality, he could, in effect, remove any of its officials, by creating a new municipality and including therein the barrio in which the official concerned resides, for his office would thereby become vacant. 6 Thus, by merely brandishing the power to create a new municipality (if he had it), without actually creating it, he could compel local officials to submit to his dictation, thereby, in effect, exercising over them the power of control denied to him by the Constitution.Then, also, the power of control of the President over executive departments, bureaus or offices implies no more than the authority to assume directly the functions thereof or to interfere in the exercise of discretion by its officials. Manifestly, such control does not include the authority either to abolish an executive department or bureaus, or to create a new one. As a consequence, the alleged power of the President to create municipal corporations would necessarily connote the exercise by him of an authority even greater than that of control which he has over the executive departments, bureaus or offices. In other words, Section 68 of the Revised Administrative Code does not merely fail to comply with the constitutional mandate above quoted. Instead of giving the President less power over local governments than that vested in him over the executive departments, bureaus or offices, it reverses the process and does the exact opposite, by conferring upon him more power over municipal corporations than that which he has over said executive departments, bureaus or offices.In short, even if it did not entail an undue delegation of legislative powers, as it certainly does, said Section 68, as part of the Revised Administrative Code, approved on March 10, 1917, must be deemed repealed by the subsequent adoption of the Constitution, in 1935, which is utterly incompatible and inconsistent with said statutory enactment. 7 There are only two (2) other points left for consideration, namely, respondent's claim (a) that "not all the proper parties" — referring to the officers of the newly created municipalities — "have been impleaded in this case", and (b) that "the present petition is premature."As regards the first point, suffice it to say that the records do not show, and the parties do not claim, that the officers of any of said municipalities have been appointed or elected and assumed office. At any rate, the Solicitor-General, who has appeared on behalf of respondent Auditor General, is the officer authorized by law "to act and represent the Government of the Philippines, its offices and agents, in any official investigation, proceeding or matter requiring the services of a lawyer" (Section 1661, Revised Administrative Code), and, in connection with the creation of the aforementioned municipalities, which involves a political, not proprietary, function, said local officials, if any, are mere agents or representatives of the national government. Their interest in the case at bar has, accordingly, been, in effect, duly represented. 8 With respect to the second point, respondent alleges that he has not as yet acted on any of the executive order in question and has not intimated how he would act in connection therewith. It is however, a matter of common, public knowledge, subject to judicial cognizance, that the President has, for many years, issued executive orders creating municipal corporations and that the same have been organized and in actual operation, thus indicating, without peradventure of doubt, that the expenditures incidental thereto have been sanctioned, approved or passed in audit by the General Auditing Office and its officials. There is no reason to believe, therefore, that respondent would adopt a different policy as regards the new municipalities involved in this case, in the absence of an allegation to such effect, and none has been made by him.WHEREFORE the Executive Orders in question are hereby declared null and void ab initio and the respondent permanently restrained from passing in audit any expenditure of public funds in implementation of said Executive Orders or any disbursement by the municipalities above referred to. It is so ordered.Bengzon, C.J., Bautista Angelo, Reyes, J.B.L., Barrera, and Dizon, JJ., concur.

BENGZON, J.P. J., concurring and dissenting:A sign of progress in a developing nation is the rise of new municipalities. Fostering their rapid growth has long been the aim pursued by all three branches of our Government.So it was that the Governor-General during the time of the Jones Law was given authority by the legislature (Act No. 1748) to act upon certain details with respect to said local governments, such as fixing of boundaries, subdivisions and mergers. And the Supreme Court, within the framework of the Jones Law, ruled in 1917 that the execution or implementation of such details, did not entail abdication of legislative power (Government vs. Municipality of Binangonan, 34 Phil. 518; Municipality of Cardona vs. Municipality of Binangonan, 36 Phil. 547). Subsequently, Act No. 1748's aforesaid statutory authorization was embodied in Section 68 of the Revised Administrative Code. And Chief Executives since then up to the present continued to avail of said provision, time and again invoking it to issue executive orders providing for the creation of municipalities.From September 4, 1964 to October 29, 1964 the President of the Philippines issued executive orders to create thirty-three municipalities pursuant to Section 68 of the Revised Administrative Code. Public funds thereby stood to be disbursed in implementation of said executive orders.Suing as private citizen and taxpayer, Vice-President Emmanuel Pelaez filed in this Court a petition for prohibition with preliminary injunction against the Auditor General. It seeks to restrain the respondent or any person acting in his behalf, from passing in audit any expenditure of public funds in implementation of the executive orders aforementioned.Petitioner contends that the President has no power to create a municipality by executive order. It is argued that Section 68 of the Revised Administrative Code of 1917, so far as it purports to grant any such power, is invalid or, at least, already repealed in the light of the Philippine Constitution and Republic Act 2370 (The Barrio Charter).Section 68 is again reproduced hereunder for convenience:"SEC. 68. General authority of [Governor-General] President of the Philippines to fix boundaries and make new subdivisions. — The [Governor-General] President of the Philippines may by executive order define the boundary, or boundaries, of any province, subprovince, municipality, [township] municipal district, or other political subdivision, and increase or diminish the territory comprised therein, may divide any province into one or more subprovinces, separate any political division other than a province, into such portions as may be required, merge any of such subdivisions or portions with another, name any new subdivision so created, and may change the seat of government within any subdivision to such place therein as the public welfare may require: Provided, That the authorization of the [Philippine Legislature] Congress of the Philippines shall first be obtained whenever the boundary of any province or subprovince is to be defined or any province is to be divided into one or more subprovinces. When action by the [Governor- General] President of the Philippines in accordance herewith makes necessary a change of the territory under the jurisdiction of any administrative officer or any

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judicial officer, the [Governor-General] President of the Philippines, with the recommendation and advice of the head of the Department having executive control of such officer, shall redistrict the territory of the several officers affected and assign such officers to the new districts so formed."Upon the changing of the limits of political divisions in pursuance of the foregoing authority, an equitable distribution of the funds and obligations of the division thereby affected shall be made in such manner as may be recommended by the [Insular Auditor] Auditor General and approved by the [Governor-General] President of the Philippines."From such wording I believe that power to create a municipality is included: to "separate any political division other than a province, into such portions as may be required, merge any of such subdivisions or portions with another, name any new subdivision so created". The issue, however, is whether the Legislature can validly delegate to the Executive such power.The power to create a municipality is legislative in character. American authorities have therefore favored the view that it cannot be delegated; that what is delegable is not the power to create municipalities but only the power to determine the existence of facts under which creation of a municipality will result (37 Am. Jur. 628).The test is said to lie in whether the statute allows any discretion on the delegate as to whether the municipal corporation should be created. If so, there is an attempted delegation of legislative power and the statute is invalid (Ibid). Now Section 68 no doubt gives the President such discretion, since it says that the President "may by executive order" exercise the powers therein granted. Furthermore, Section 5 of the same Code states:"SEC. 5. Exercise of administrative discretion. — The exercise of the permissive powers of all executive or administrative officers and bodies is based upon discretion, and when such officer or body is given authority to do any act but not required to do such act, the doing of the same shall be dependent on a sound discretion to be exercised for the good of the service and benefit of the public, whether so expressed in the statute giving the authority or not."Under the prevailing rule in the United States — and Section 68 is of American origin — the provision in question would be an invalid attempt to delegate purely legislative powers, contrary to the principle of separation of powers.It is very pertinent that Section 68 should be considered with the stream of history in mind. A proper knowledge of the past is the only adequate background for the present. Section 68 was adopted half a century ago. Political change, two world wars, the recognition of our independence and rightful place in the family of nations, have since taken place. In 1917 the Philippines had for its Organic Act the Jones Law. And under the set-up ordained therein no strict separation of powers was adhered to. Consequently, Section 68 was not constitutionally objectionable at the time of its enactment.The advent of the Philippine Constitution in 1935 however altered the situation. For not only was separation of power strictly ordained, except only in specific instances therein provided, but the power of the Chief Executive over local governments suffered an explicit reduction.Formerly, Section 21 of the Jones Law provided that the Governor-General "shall have general supervision and control of all the departments and bureaus of the government in the Philippine Islands". Now Section 10 (1), Article VII of the Philippine Constitution provides: "The President shall have control of all the executive departments, bureaus, or offices, exercise general supervision over all local governments as may be provided by law, and take care that the laws be faithfully executed."In short, the power of control over local governments had now been taken away from the Chief Executive. Again, to fully understand the significance of this provision, one must trace its development and growth.As early as April 7, 1900 President McKinley of the United States, in his Instructions to the Second Philippine Commission, laid down the policy that our municipal governments should be "subject to the least degree of supervision and control" on the part of the national government. Said supervision and control was to be confined within the "narrowest limits" or so much only as "may be necessary to secure and enforce faithful and efficient administration by local officers". And the national government "shall have no direct administration except of matters of purely general concern". (See Hebron v. Reyes, L-9158, July 28, 1958.)All this had one aim, to enable the Filipinos to acquire experience in the art of self-government, with the end in view of later allowing them to assume complete management and control of the administration of their local affairs. Such aim is the policy now embodied in Section 10(1), Article VII of the Constitution (Rodriguez v. Montinola, 50 O. G., 4820).It is the evident decree of the Constitution, therefore, that the President shall have no power of control over local governments. Accordingly, Congress cannot by law grant him such power (Hebron v. Reyes, supra). And any such power formerly granted under the Jones Law thereby-became unavoidably inconsistent with the Philippine Constitution.It remains to examine the relation of the power to create and the power to control local governments. Said relationship has already been passed upon by this Court in Hebron v. Reyes, supra. In said case, it was ruled that the power to control is an incident of the power to create or abolish municipalities. Respondent's view, therefore, that creating municipalities and controlling their local governments are "two worlds apart", is untenable. And since, as stated, the power to control local governments can no longer be conferred on or exercised by the President, it follows a fortiori that the power to create them, all the more cannot be so conferred or exercised.I am impelled to conclude, therefore, that Section 10(1) of Article VII of the Constitution has repealed Section 68 of the Revised Administrative Code as far as the latter empowers the President to create local governments. Repeal by the Constitution of prior statutes inconsistent with it has already been sustained in De los Santos vs. Mallare, 87 Phil. 289. And it was there held that such repeal differs from a declaration of unconstitutionality of a posterior legislation, so much so that only a majority vote of the Court is needed to sustain a finding of repeal.Since the Constitution repealed Section 68 as far back as 1935, it is academic to ask whether Republic Act 2370 likewise has provisions in conflict with Section 68 so as to repeal it. Suffice it to state, at any rate, that statutory prohibition on the President from creating a barrio does not, in my opinion, warrant the inference of statutory prohibition for creating a municipality. For although municipalities consist of barrios, there is nothing in the statute that would preclude creation of new municipalities out of pre-existing barrios.It is not contrary to the logic of local autonomy to be able to create larger political units and unable to create smaller ones. For as long ago observed in President McKinley's Instructions to the Second Philippine Commission, greater autonomy is to be imparted to the smaller of the two political units. The smaller the unit of local government, the lesser is the need for the national government's intervention in its political affairs. Furthermore, for practical reasons, local autonomy cannot be given from the top downwards. The national government, in such a case, could still exercise power over the supposedly autonomous unit, e.g., municipalities, by exercising it over the smaller units that comprise them, e.g., the barrios. A realistic program of decentralization therefore calls for autonomy from the bottom upwards, so that it is not surprising for Congress to deny the national government some power over barrios without denying it over municipalities. For this reason, I disagree with the majority view that because the President could not create a barrio under Republic Act 2370, a fortiori he cannot create a municipality.It is my view, therefore, that the Constitution, and not Republic Act 2370, repealed Section 68 of the Revised Administrative Code's provision giving the President authority to create local governments. And for this reason I agree with the ruling in the majority opinion that the executive orders in question are null and void.In thus ruling, the Court is but sustaining the fulfillment of our historic desire to be free and independent under a republican form of government, and exercising a function derived from the very sovereignty that it upholds.I concur in declaring null and void the Executive Order in question. Petition granted.Regala and Makalintal, JJ., concur.

THE MUNICIPALITY OF CANDIJAY, BOHOL, acting through its. Sanguniang Bayan and Mayor, petitioner, vs. COURT OF APPEALS and THE MUNICIPALITY OF ALICIA, BOHOL, respondents.1995 Dec 28, G.R. No. 116702

PANGANIBAN, J.:This is a petition for review on certiorari of the Decision of the Court of Appeals 1 promulgated on June 28, 1994, reversing the judgment 2 of the Regional Trial Court (Branch I) of the ity of Tagbilaran, Bohol.

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The lower court's decision, among other things declared "barrio/barangay Pagahat as within the territorial jurisdiction of the plaintiff municipality of Candijay, Bohol, therefore, said barrio forms part and parcel of its territory, therefore, belonging to said plaintiff municipality", and further permanently enjoined defendant municipality of Alicia "to respect plaintiff's control, possession and political supervision of barangay Pagahat and never to molest, disturb, harass its possession and ownership over the same barrio" (RTC decision, p. 4; Rollo, p. 86).

On appeal, the respondent Court stated that "(S)crutiny of the conflicting claims and the respective evidence of the parties lead to the conclusion that the trial court committed an error in declaring that Barrio Pagahat is within the territorial jurisdiction of plaintiff-appellee (municipality of Candijay)." Said Court rejected the boundary line being claimed by petitioner based on certain exhibits, since it would in effect place "practically all of Barrio Pagahat . . ., part of Barrio Cagongcagong and portions of Barrio Putlongcam and La Hacienda and all of Barrio Mahayag and Barrio del Monte within the territorial jurisdiction of plaintiff-appellee Candijay." Added the respondent Court, "As aptly pointed out by defendant-appellant in its appeal brief, 'the plaintiff municipality will not only engulf the entire barrio of Pagahat, but also of the barrios of Putlongcam, Mahayag, Del Monte, Cagongcagong, and a part of the Municipality of Mabini. Candijay will eat up a big chunk of territories far exceeding her territorial jurisdiction under the law creating her. Her claim opens the floodgate of controversies over boundaries, including with Mabini.'" (Decision, p. 4; rollo, p. 35.) The respondent Court concluded that "the trial court erred in relying on Exh. X-Commissioner [exhibit for petitioner], because, in effect, it included portions of Barrios Putlongcam and La Hacienda within the jurisdiction of appellee Candiiay when said barrios are undisputedly part of appellant ' s (Alicia) territory under Executive Order No. 265 creating the latter" (Decision, p. 6, rollo, p. 37).

The respondent Court also found, after an examination of the respective survey plans of petitioner and respondent submitted as exhibits, that "both plans are inadequate insofar as identifying the monuments of the boundary line between [petitioner] and the Municipality of Mabini (which is not a party to this case) as declared by the Provincial Board of Bohol . Neither plan shows where Looc-Tabasan, Lomislis Island, Tagtang Canlirong, mentloned in the afore- quoted boundary line declared by the Provincial Board of Bohol, are actually located." (Decision, p. 4; rollo, p. 35. ) The respondent Court, after weighing and considering the import of certain official acts, including Executive Order No. 265 dated September 16, 1949 (which created the municipality of Alicia from out of certain barrios of the municipality of Mabini), and Act No. 968 of the Philippine Commission dated October 31, 1903 (which set forth the respective component territories of the municipalities of Mabini and Candijay), concluded that "Barrio Bulawan from where barrio Pagahat originated is not mentioned as one of the barrios constituted as part of defendant-appellant Municipality of alicia. Neither do they show that Barrio Pagahat forms part of plaintiff-appellant Municipality of Candijay."

On that basis, the respondent Court held that:

"Clearly, from the foregoing, there is equiponderance of evidence. The Supreme Court has ruled:

'Equiponderance of evidence rule states:

'When the scale shall staand upon an equipoise and there is nothing in the evidence which shall incline it to one side or the other, the court will find for the defendant.

'Under said principle, the plaintiff must rely on the strength of his evidence and not on the weakness of defendant's claim. Even if the evidence of the plaintiff may be stronger than that of the defendant, there is no preponderance of evidence on his side if such evidence is insufficient in itself to establish his cause of action .

(Sapu-an, et al. v. Court of Appeals, Oct. 19, 1992, 214 SCRA 701, 705-706 .)

"WHEREFORE, the appealed judgment is reversed and set aside. Another judgment is hereby entered dismissing the complaint in Civil Case No. 2402. No costs." (Decision. p. 6, rollo, p. 37. )

Petitioner's motion for reconsideration having been rejected by the respondent Court, petitioner came to this Court, alleging (i) improper application by the respondent Court of Appeals of the so-called principle of "equiponderance of evidence", for having based its ruling against petitioner on documentary evidence which, petitioner claims, are void, (ii) the respondent municipality's purported lack of juridical personality, as a result of having been created under a void executive order, and (iii) that the challenged Decision "does not solve the problem of both towns but throws them back again to their controversy." (Petition, p. 6, rollo, p. 21.)

After deliberating on the petition, comment and reply, this Court is not persuaded to grant due course to the petition.

With respect to the first and third grounds, we find that the issues of fact in this case had been adequately passed upon by respondent Court in its Decision, which is well-supported by the evidence on record. The determination of equiponderance of evidence by the respondent Court involves the appreciation of evidence by the latter tribunal, which will not be reviewed by this Court unless shown to be whimsical or capricious; here, there has been no such showing.

In connection with the foregoing, that the assailed Decision, in dismissing the complaint in Civil Case No. 2402, may leave the parties where they are or may not resolve their problem one way or the other, is of no moment. The fact remains that, as correctly evaluated by the respondent Court, neither party was able to make out a case; neither side could establish its cause of action and prevail with the evidence it had. They are thus no better off than before they proceeded to litigate, and, as a consequence thereof, the courts can only leave them as they are. In such cases, courts have no choice but to dismiss the complaints/petitions.

On the second issue, we noted that petitioner commenced its collateral attack on the juridical personality of respondent municipality on 19 January 1984 (or some thirty five years after respondent municipality first came into existence in 1949) during the proceedings in the court a quo. It appears that, after presentation of its evidence, herein petitioner asked the trial court to bar respondent municipality from presenting its evidence on the ground that it had no juridical personality. Petitioner contended that Exec. Order No. 265 issued by President Quirino on September 16, 1949 creating respondent municipality is null and void ab initio, inasmuch as Section 68 of the Revised Administrative Code, on which said Executive Order was based, constituted an undue delegation of legislative powers to the President of the Philippines, and was therefore declared unconstitutional, per this Court's ruling in Pelaez vs. Auditor General. 3

In this regard, we call to mind the ruling of this Court in Municipality of San Narciso, Quezon vs. Mendez, Sr. 4 , which will be found very instructive in the case at bench. Therein we stated:

"While petitioners would grant that the enactment of Republic Act No. 7160 [Local Government Code of 1991] may have converted the Municipality of San Andres into a de facto municipality, they, however, contend that since the petition for quo warranto had been filed prior to the passage of said law, petitioner municipality had acquired a vested right to seek the nullification of Executive Order No. 353, and any attempt to apply Section 442 of Republic Act 7160 to the petition would perforce be violative of due process and the eaual Protection clause of the Constitution.

"Petitioner's theory might perhaps be a point to consider had the case been seasonably brought. Executive Order No. 353 creating the municipal district of San Andres was issued on 20 August 1959 but it was only after almost thirty (30) years, or

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on 05 June 1989, that the municipality of San Narciso finally decided to challenge the legality of the executive order. In the meantime, the Municipal district, and later the Municipality of San Andres, began and continued to exercise the powers and authority of a duly created local government unit. In the same manner that the failure of a public officer to question his ouster or the right of another to hold a position within a one-year period can abrogate an action belatedly file, so also, if not indeed with greatest imperativeness, must a guo warranto proceeding assailing the lawful authority of a political subdivision be timely raised. Public interest demands it.

"Granting that Executive Order No. 353 was a complete nullity for being the result of an unconstitutional delegation of legislative power, the peculiar circumstances obtaining in this case hardly could offer a choice other than to consider the Municipality of San Andres to have at least attained a status uniquely of its own closely approximating, if not in fact attaining, that of a de facto municipal corporation. Conventional wisdom cannot allow it to be otherwise. Created in 1959 by virtue of Executive Order No. 353, the Municipality of San Andres had been in existence for more than six years when, on 24 December 1965, Pelaez vs. Auditor General was promulgated. The ruling could have sounded the call for a similar declaration of the unconstitutionality of Executive Order No. 353 but it was not to be the case. On the contrary, certain governmental acts all pointed to the State's recognition of the continued existence of the Municipality of San Andres. Thus, after more than five years as a municipal district, Executive Order No. 174 classified the Municipality of San Andres as a fifth class municipality after having surpased the income requirement laid out in Republic Act No. 1515. Section 31 of Batas Pambansa Blg. 129, otherwise known as the Judiciary Reorganization Act of 1980, constituted as municipal circuits, in the establishment of Municipal Circuit Trial Courts in the country, certain municipalities that comprised the municipal circuits organized under Administrative Order No. 33, dated 13 June 1978, issued by this court pursuant to Presidential Decree No. 537. Under this administrative order, the Municipality of San Andres had been covered by the 10th Municipal Circuit Court of San Francisco-San Andres for the province of Quezon.

"At the present time, all doubts on the de jure standing of the municipality must be dispelled. Under the Ordinance (adopted on 15 October 1986) apportioning the seats of the House of Representatives, appended to the 1987 Constitu-tion, the Municipality of San Andres has been considered to be one of the twelve (12) municipalities composing the Third District of the province of Quezon. Equally significant is Section 442 (d) of the Local Government Code to the effect that municipal districts "organized pursuant to presidential issuances or executive orders and which have their respective sets of elective municpal officials holding office at the time of the effectivity of (the) Code shall henceforth be considered as regular municipalities." No pretension of unconstitutionality per se of Section 442(d) of the Local Government Code is proffered. It is doubtful whether such a pretext, even if made, would succeed. The power to create political subdivisions is a function of the legislature. congress did just that when it has incorporated Section 442(d) in the Code. Curative laws, which in essence are retrospective, and aimed at giving "valdity to acts ddone that would have been complied with," are validly accepted in this jurisdictin, subject to the usual qualification against impairment of vested rights.

"All considered, the de jure status of the Municipality of San Andres in the province of Quezon must now be conceded."

Respondent municipality's situation in the instant case is strikingly similar to that of the municipality of San Andres. Respondent municipality of Alicia was created by virtue of Executive Order No. 265 in 1949, or ten years ahead of the municipality of San Andres, and therefore had been in existence for all of sixteen years when Pelaez vs. Auditor General was promulgated. And various governmental acts throughout the years all indicate the State's recognition and acknowledgment of the existence thereof. For instance, under Administrative Order No. 33 above-mentioned, the Municipality of Alicia was covered by the 7th Municipal Circuit Court of Alicia-Mabini for the province of Bohol. Likewise, under the Ordinance appended to the 1987 Constitution, the Municipality of Alicia is one of twenty municipalities comprising the Third District of Bohol.

Inasmuch as respondent municipality of Alicia is similarly situated as the municipality of San Andres, it should likewise benefit from the effects of Section 442 (d) of the Local Government Code, and should henceforth be considered as a regular, de jure municipality.

WHEREFORE, the instant petition for review on certiorari is hEREBY DENIED, with costs against petitioner.

MUNICIPALITY OF JIMENEZ, through its MAYOR ELEUTERIO A. QUIMBO, VICE-MAYOR ROBINSON B. LOMO, COUNCILORS TEOFILO GALORIO, CASIANO ADORABLE, MARIO APAO, ANTONIO BIENES, VEDE SULLANO, MARIETO TAN, SR., HERMINIO SERINO, BENJAMIN DANO, and CRISPULO MUNAR, and ELEUTERIO A. QUIMBO, ROBINSON B. LOMO, TEOFILO GALORIO, CASIANO ADORABLE, MARIO APAO, ANTONIO BIENES, VEDE SULLANO, MARIETO TAN, SR., HERMINIO SERINO, BENJAMIN DANO, and CRISPULO MUNAR, in their private capacities as taxpayer in the Province of Misamis Occidental and in the Municipality of Jimenez, Misamis Occidental, and BENJAMIN C. GALINDO and BENHUR B. BAUTISTA, in their private capacities as taxpayers in the Province of Misamis Occidental and the Municipality of Jimenez, Misamis Occidental, petitioners,vs.HON. VICENTE T. BAZ, JR., Presiding Judge, REGIONAL TRIAL COURT, BRANCH 14, 10th JUDICIAL REGION, OROQUIETA CITY, and MUNICIPALITY OF SINACABAN through its MAYOR EUFRACIO D. LOOD, VICE-MAYOR BASILIO M. BANAAG, COUNCILORS CONCEPCION E. LAGA-AC, MIGUEL F. ABCEDE, JUANITO B. TIU, CLAUDIO T. REGIL, ANICETO S. MEJAREZ NAZIANCINO PAYE, JOSE P. BANQUE, NUMERIANO B. MARIQUIT, and FEDERICO QUINIMON, and THE PROVINCE OF MISAMIS OCCIDENTAL through the PROVINCIAL BOARD OF MISAMIS OCCIDENTAL and its members, VICE-GOVERNOR FLORENCIO L. GARCIA, BOARD MEMBERS MARIVIC S. CHIONG, PACITA M. YAP, ALEGRIA V. CARINO, JULIO L. TIU, LEONARDO R. REGALADO II, CONSTANCIO C. BALAIS, and ERNESTO P. IRA, and THE COMMISSION ON AUDIT, through its Chairman, HON. EUFEMIO DOMINGO, and THE DEPARTMENT OF LOCAL GOVERNMENT through its Secretary, HON. LUIS SANTOS (now HON. CESAR SARINO), and THE DEPARTMENT OF BUDGET AND MANAGEMENT, through its Secretary, HON. GUILLERMO CARAGUE (now HON. SALVADOR ENRIQUEZ), and The Hon. CATALINO MACARAIG (now HON. FRANKLIN DRILON), EXECUTIVE SECRETARY OFFICE OF THE PRESIDENT, respondents.1996 Dec 2, G.R. No. 105746

MENDOZA, J.:This is a petition for review of the decision dated March 4, 1992 of the Regional Trial Court, Branch 14 of Oroquieta City, 1 affirming the legal existence of the Municipality of Sinacaban in Misamis Occidental and ordering the relocation of its boundary for the purpose of determining whether certain areas claimed by it belong to it.

The antecedent facts are as follows:

The Municipality of Sinacaban was created by Executive Order No. 258 of then President Elpidio Quirino, pursuant to §68 of the Revised Administrative Code of 1917. The full text of the Order reads:

EXECUTIVE ORDER NO. 258CREATING THE MUNICIPALITY OF SINACABAN,IN THE PROVINCE OF MISAMIS OCCIDENTAL

Upon the recommendation of the Secretary of the Interior, and pursuant to the provisions of Section 68 of the Revised Administrative Code, there is hereby created, in the Province of Misamis Occidental, a municipality to be known as the

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municipality of Sinacaban, which shall consist of the southern portion of the municipality of Jimenez, Misamis Occidental, more particularly described and bounded as follows:

On the north by a line starting from point 1, the center of the lighthouse on the Tabo-o point S. 84° 30'W., 7,250 meters to point 2 which is on the bank of Palilan River branch; thence following Palilan River branch 2,400 meters southwesterly to point 3, thence a straight line S 87° 00' W, 22,550 meters to point 4, where this intersects the Misamis Occidental-Zamboanga boundary; on the west, by the present Misamis Occidental-Zamboanga boundary; and on the south by the present Jimenez-Tudela boundary; and on the east, by the limits of the municipal waters which the municipality of Sinacaban shall have pursuant to section 2321 of the Revised Administrative Code, (Description based on data shown in Enlarged Map of Poblacion of Jimenez, Scale 1:8:000).

The municipality of Sinacaban contains the barrios of Sinacaban, which shall be the seat of the municipal government, Sinonoc, Libertad, the southern portion of the barrio of Macabayao, and the sitios of Tipan, Katipunan, Estrella, Flores, Senior, Adorable, San Isidro, Cagayanon, Kamanse, Kulupan and Libertad Alto.

The municipality of Jimenez shall have its present territory, minus the portion thereof included in the municipality of Sinacaban.

The municipality of Sinacaban shall begin to exist upon the appointment and qualification of the mayor, vice-mayor, and a majority of the councilors thereof. The new municipality shall, however, assume payment of a proportionate share of the loan of the municipality of Jimenez with the Rehabilitation Finance Corporation as may be outstanding on the date of its organization, the proportion of such payment to be determined by the Department of Finance.

Done in the City of Manila, this 30th day of August, in the year of Our Lord, nineteen hundred and forty-nine, and of the Independence of the Philippines, the fourth.

(SGD.) ELPIDIO QUIRINOPresident of the Philippines

By the President:(SGD.) TEODORO EVANGELISTAExecutive Secretary

By virtue of Municipal Council Resolution No 171, 2 dated November 22, 1988, Sinacaban laid claim to a portion of Barrio Tabo-o and to Barrios Macabayao, Adorable, Sinara Baja, and Sinara Alto, 3 based on the technical description in E.O. No. 258. The claim was filed with the Provincial Board of Misamis Occidental against the Municipality of Jimenez.

In its answer, the Municipality of Jimenez, while conceding that under E.O. No. 258 the disputed area is part of Sinacaban, nonetheless asserted jurisdiction on the basis of an agreement it had with the Municipality of Sinacaban. This agreement was approved by the Provincial Board of Misamis Occidental, in its Resolution No. 77, dated February 18, 1950, which fixed the common boundary of Sinacaban and Jimenez as follows: 4

From a point at Cagayanon Beach follow Macabayao Road until it intersects Tabangag Creek at the back of the Macabayao Elementary School. Follow the Tabangag Creek until it intersect the Macabayao River at upper Adorable. Follow the Macabayao River such that the barrio of Macabayao, Sitio Adorable and site will be a part of Jimenez down and the sitios of San Vicente, Donan, Estrella, Mapula will be a part of Sinacaban.

In its decision dated October 11, 1989, 5 the Provincial Board declared the disputed area to be part of Sinacaban. It held that the previous resolution approving the agreement between the municipalities was void because the Board had no power to alter the boundaries of Sinacaban as fixed in E.O. No. 258, that power being vested in Congress pursuant to the Constitution and the Local Government Code of 1983 (B.P. Blg. 337), §134. 6 The Provincial Board denied in its Resolution No. 13-90 dated January 30, 1990 the motion of Jimenez seeking reconsideration. 7

On March 20, 1990, Jimenez filed a petition for certiorari, prohibition, and mandamus in the Regional Trial Court of Oroquieta City, Branch 14. The suit was filed against Sinacaban, the Province of Misamis Occidental and its Provincial Board, the Commission on Audit, the Departments of Local Government, Budget and Management, and the Executive Secretary. Jimenez alleged that, in accordance with the decision in Pelaez v. Auditor General, 8 the power to create municipalities is essentially legislative and consequently Sinacaban, which was created by an executive order, had no legal personality and no right to assert a territorial claim vis-a-vis Jimenez, of which it remains part. Jimenez prayed that Sinacaban be enjoined from assuming control and supervision over the disputed barrios; that the Provincial Board be enjoined from assuming jurisdiction over the claim of Sinacaban; that E.O. No. 258 be declared null and void; that the decision dated October 11, 1989 and Resolution No. 13-90 of the Provincial Board be set aside for having been rendered without jurisdiction; that the Commission on Audit be enjoined from passing in audit any expenditure of public funds by Sinacaban; that the Department of Budget and Management be enjoined from allotting public funds to Sinacaban; and that the Executive Secretary be enjoined from exercising control and supervision over said municipality.

During pre-trial, the parties agreed to limit the issues to the following:

A. Whether the Municipality of Sinacaban is a legal juridical entity, duly created in accordance with law; B. If not, whether it is a de facto juridical entity; C. Whether the validity of the existence of the Municipality can be properly questioned in this action on certiorari; D. Whether the Municipality of Jimenez which had recognized the existence of the municipality for more than 40 years is estopped to question its existence; E. Whether the existence of the municipality has been recognized by the laws of the land; and F. Whether the decision of the Provincial Board had acquired finality.

On February 10, 1992, the RTC rendered its decision, the dispositive portion of which reads:

WHEREFORE, premises considered, it is the finding of this Court that the petition must be denied and judgment is hereby rendered declaring a STATUS QUO, that is, the municipality of Sinacaban shall continue to exist and operate as a regular municipality; declaring the decision dated October 11, 1989 rendered by the Sangguniang Panlalawigan fixing the boundaries between Sinacaban and Jimenez, Misamis Occi. as null and void, the same not being in accordance with the boundaries provided for in Executive Order No. 258 creating the municipality of Sinacaban; dismissing the petition for lack of merit, without pronouncement as to costs and damages. With respect to the counterclaim, the same is hereby ordered dismissed.

The Commissioners are hereby ordered to conduct the relocation survey of the boundary of Sinacaban within 60 days from the time the decision shall have become final and executory and another 60 days within which to submit their report from the completion of the said relocation survey.

SO ORDERED.

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The RTC, inter alia, held that Sinacaban is a de facto corporation since it had completely organized itself even prior to the Pelaez case and exercised corporate powers for forty years before its existence was questioned; that Jimenez did not have the legal standing to question the existence of Sinacaban, the same being reserved to the State as represented by the Office of the Solicitor General in a quo warranto proceeding; that Jimenez was estopped from questioning the legal existence of Sinacaban by entering into an agreement with it concerning their common boundary; and that any question as to the legal existence of Sinacaban had been rendered moot by §442(d) of the Local Government Code of 1991 (R.A. No. 7160), which provides:

Municipalities existing as of the date of the 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 as regular municipalities.

On March 17, 1990, petitioner moved for a reconsideration of the decision but its motion was denied by the RTC. Hence this petition raising the following issues: (1) whether Sinacaban has legal personality to file a claim, and (2) if it has, whether it is the boundary provided for in E.O. No. 258 or in Resolution No. 77 of the Provincial Board of Misamis Occidental which should be used as the basis for adjudicating Sinacaban's territorial claim.

First. The preliminary issue concerns the legal existence of Sinacaban. If Sinacaban legally exists, then it has standing to bring a claim in the Provincial Board. Otherwise, it cannot.

The principal basis for the view that Sinacaban was not validly created as a municipal corporation is the ruling in Pelaez v. Auditor General that the creation of municipal corporations is essentially a legislative matter and therefore the President was without power to create by executive order the Municipality of Sinacaban. The ruling in this case has been reiterated in a number of cases 9 later decided. However, we have since held that where a municipality created as such by executive order is later impliedly recognized and its acts are accorded legal validity, its creation can no longer be questioned. In Municipality of San Narciso, Quezon v. Mendez, Sr., 10 this Court considered the following factors as having validated the creation of a municipal corporation, which, like the Municipality of Sinacaban, was created by executive order of the President before the ruling in Pelaez v. Auditor General: (1) the fact that for nearly 30 years the validity of the creation of the municipality had never been challenged; (2) the fact that following the ruling in Pelaez no quo warranto suit was filed to question the validity of the executive order creating such municipality; and (3) the fact that the municipality was later classified as a fifth class municipality, organized as part of a municipal circuit court and considered part of a legislative district in the Constitution apportioning the seats in the House of Representatives. Above all, it was held that whatever doubt there might be as to the de jure character of the municipality must be deemed to have been put to rest by the Local Government Code of 1991 (R.A. No. 7160), §442(d) of which provides that "municipal districts organized pursuant to presidential issuances or executive orders and which have their respective sets of elective officials holding office at the time of the effectivity of this Code shall henceforth be considered as regular municipalities."

Here, the same factors are present so as to confer on Sinacaban the status of at least a de facto municipal corporation in the sense that its legal existence has been recognized and acquiesced publicly and officially. Sinacaban had been in existence for sixteen years when Pelaez v. Auditor General was decided on December 24, 1965. Yet the validity of E.O. No. 258 creating it had never been questioned. Created in 1949, it was only 40 years later that its existence was questioned and only because it had laid claim to an area that apparently is desired for its revenue. This fact must be underscored because under Rule 66, §16 of the Rules of Court, a quo warranto suit against a corporation for forfeiture of its charter must be commenced within five (5) years from the time the act complained of was done or committed. On the contrary, the State and even the Municipality of Jimenez itself have recognized Sinacaban's corporate existence. Under Administrative Order No. 33 dated June 13, 1978 of this Court, as reiterated by §31 of the Judiciary Reorganization Act of 1980 (B. P. Blg. 129), Sinacaban is constituted part of a municipal circuit for purposes of the establishment of Municipal Circuit Trial Courts in the country. For its part, Jimenez had earlier recognized Sinacaban in 1950 by entering into an agreement with it regarding their common boundary. The agreement was embodied in Resolution No. 77 of the Provincial Board of Misamis Occidental.

Indeed Sinacaban has attained de jure status by virtue of the Ordinance appended to the 1987 Constitution, apportioning legislative districts throughout the country, which considered Sinacaban part of the Second District of Misamis Occidental. Moreover, following the ruling in Municipality of San Narciso, Quezon v. Mendez, Sr., §442(d) of the Local Government Code of 1991 must be deemed to have cured any defect in the creation of Sinacaban. This provision states:

Municipalities existing as of the date of the 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 the Code shall henceforth be considered as regular municipalities.

Second. Jimenez claims, however, that R.A. No. 7160, §442(d) is invalid, since it does not conform to the constitutional and statutory requirements for the holding of plebiscites in the creation of newmunicipalities. 11

This contention will not bear analysis. Since, as previously explained, Sinacaban had attained de facto status at the time the 1987 Constitution took effect on February 2, 1987, it is not subject to the plebiscite requirement. This requirement applies only to new municipalities created for the first time under the Constitution. Actually, the requirement of plebiscite was originally contained in Art. XI, §3 of the previous Constitution which took effect on January 17, 1973. It cannot, therefore, be applied to municipal corporations created before, such as the Municipality of Sinacaban in the case at bar.

Third. Finally, Jimenez argues that the RTC erred in ordering a relocation survey of the boundary of Sinacaban because the barangays which Sinacaban are claiming are not enumerated in E.O. No. 258 and that in any event in 1950 the parties entered into an agreement whereby the barangays in question were considered part of the territory of Jimenez.

E.O. No. 258 does not say that Sinacaban comprises only the barrios (now called barangays) therein mentioned. What it says is that "Sinacaban contains" those barrios, without saying they are the only ones comprising it. The reason for this is that the technical description, containing the metes and bounds of its territory, is controlling. The trial court correctly ordered a relocation survey as the only means of determining the boundaries of the municipality and consequently the question to which the municipality the barangays in question belong.

Now, as already stated, in 1950 the two municipalities agreed that certain barrios belonged to Jimenez, while certain other ones belonged to Sinacaban. This agreement was subsequently approved by the Provincial Board of Misamis Occidental. Whether this agreement conforms to E.O. No. 258 will be determined by the result of the survey. Jimenez contends, however, that regardless of its conformity to E.O. No. 258, the agreement as embodied in Resolution No. 77 of the Provincial Board, is binding on Sinacaban. This raises the question whether the Provincial Board had authority to approve the agreement or, to put it in another way, whether it had the power to declare certain barrios part of one or the other municipality. We hold it did not if the effect would be to amend the area as described in E.O. No. 258 creating the Municipality of Sinacaban.

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At the time the Provincial Board passed Resolution No. 77 on February 18, 1950, the applicable law was §2167 of the Revised Administrative Code of 1917 which provided:

Sec. 2167. Municipal boundary disputes. How settled. Disputes as to jurisdiction of municipal governments over places or barrios shall be decided by the provincial boards of the provinces in which such municipalities are situated, after an investigation at which the municipalities concerned shall be duly heard. From the decision of the provincial board appeal may be taken by the municipality aggrieved to the Secretary of the Interior [now the Office of the Executive Secretary], whose decision shall be final. Where the places or barrios in dispute are claimed by municipalities situated in different provinces, the provincial boards of the provinces concerned shall come to an agreement if possible, but, in the event of their failing to agree, an appeal shall be had to the Secretary of Interior [Executive Secretary], whose decision shall be final.

As held in Pelaez v. Auditor General, 12 the power of provincial boards to settle boundary disputes is "of an administrative nature involving, as it does, the adoption of means and ways to carry into effect the law creating said municipalities." It is a power "to fix common boundary, in order to avoid or settle conflicts of jurisdiction between adjoining municipalities." It is thus limited to implementing the law creating a municipality. It is obvious that any alteration of boundaries that is not in accordance with the law creating a municipality is not the carrying into effect of that law but its amendment. 13 If, therefore, Resolution No. 77 of the Provincial Board of Misamis Occidental is contrary to the technical description of the territory of Sinacaban, it cannot be used by Jimenez as basis for opposing the claim of Sinacaban.

Jimenez properly brought to the RTC for review the decision of October 11, 1989 and Resolution No. 13-90 of the Provincial Board. Its action is in accordance with the Local Government Code of 1983, §79 of which provides that in case no settlement of boundary disputes is made the dispute should be elevated to the RTC of the province. In 1989, when the action was brought by Jimenez, this Code was the governing law. The governing law is now the Local Government Code of 1991 (R.A. No. 7160), §§118-119.

Jimenez's contention that the RTC failed to decide the case "within one year from the start of proceedings" as required by §79 of the Local Government Code of 1983 and the 90-day period provided for in Article VIII, §15 of the Constitution does not affect the validity of the decision rendered. For even granting that the court failed to decide within the period prescribed by law, its failure did not divest it of its jurisdiction to decide the case but only makes the judge thereof liable for possible administrative sanction.

WHEREFORE, the petition is DENIED and the decision of the Regional Trial Court of Oroquieta City, Branch 14 is AFFIRMED.

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