municipal corporations

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MIAA vs CA MANILA INTERNATIONAL AIRPORT AUTHORITY vs. COURT OF APPEALS G.R. No. 155650 July 20, 2006 Facts: MIAA received Final Notices of Real Estate Tax Delinquency from the City of Parañaque for the taxable years 1992 to 2001. MIAA’s real estate tax delinquency was estimated at P624 million. The City of Parañaque, through its City Treasurer, issued notices of levy and warrants of levy on the Airport Lands and Buildings. The Mayor of the City of Parañaque threatened to sell at public auction the Airport Lands and Buildings should MIAA fail to pay the real estate tax delinquency. MIAA filed with the Court of Appeals an original petition for prohibition and injunction, with prayer for preliminary injunction or temporary restraining order. The petition sought to restrain the City of Parañaque from imposing real estate tax on, levying against, and auctioning for public sale the Airport Lands and Buildings. Paranaque’s Contention: Section 193 of the Local Government Code expressly withdrew the tax exemption privileges of “government-owned and-controlled corporations” upon the effectivity of the Local Government Code. Respondents also argue that a basic rule of statutory construction is that the express mention of one person, thing, or act excludes all others. An international airport is not among the exceptions mentioned in Section 193 of the Local Government Code. Thus, respondents assert that MIAA cannot claim that the Airport Lands and Buildings are exempt from real estate tax. MIAA’s contention: Airport Lands and Buildings are owned by the Republic. The government cannot tax itself. The reason for tax exemption of public property is that its taxation would not inure to any public advantage, since in such a case the tax debtor is also the tax creditor. Issue: WON Airport Lands and Buildings of MIAA are exempt from real estate tax under existing laws? Yes. Ergo, the real estate tax assessments issued by the City of Parañaque, and all proceedings taken pursuant to such assessments, are void. Held: 1. MIAA is Not a Government-Owned or Controlled Corporation MIAA is not a government-owned or controlled corporation but an instrumentality of the National Government and thus exempt from local taxation. MIAA is not a stock corporation because it has no capital stock divided into shares. MIAA has no stockholders or voting shares. MIAA is also not a non-stock corporation because it has no members. A non-stock corporation must have members. MIAA is a government instrumentality vested with corporate powers to perform efficiently its governmental functions. MIAA is like any other government instrumentality, the only difference is that MIAA is vested with corporate powers. When the law vests in a government instrumentality corporate powers, the instrumentality does not become a corporation. Unless the government instrumentality is organized as a stock or non-stock corporation, it remains a government instrumentality exercising not only governmental but also corporate powers. Thus, MIAA exercises the governmental powers of eminent domain, police authority and the levying of fees and charges. At the same time, MIAA exercises “all the powers of a corporation

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Page 1: Municipal Corporations

MIAA vs CA

MANILA INTERNATIONAL AIRPORT AUTHORITY vs. COURT OF APPEALSG.R. No. 155650 July 20, 2006

Facts:

MIAA received Final Notices of Real Estate Tax Delinquency from the City of Parañaque for the taxable years 1992 to 2001. MIAA’s real estate tax delinquency was estimated at P624 million.

The City of Parañaque, through its City Treasurer, issued notices of levy and warrants of levy on the Airport Lands and Buildings. The Mayor of the City of Parañaque threatened to sell at public auction the Airport Lands and Buildings should MIAA fail to pay the real estate tax delinquency.

MIAA filed with the Court of Appeals an original petition for prohibition and injunction, with prayer for preliminary injunction or temporary restraining order. The petition sought to restrain the City of Parañaque from imposing real estate tax on, levying against, and auctioning for public sale the Airport Lands and Buildings.

Paranaque’s Contention: Section 193 of the Local Government Code expressly withdrew the tax exemption privileges of “government-owned and-controlled corporations” upon the effectivity of the Local Government Code. Respondents also argue that a basic rule of statutory construction is that the express mention of one person, thing, or act excludes all others. An international airport is not among the exceptions mentioned in Section 193 of the Local Government Code. Thus, respondents assert that MIAA cannot claim that the Airport Lands and Buildings are exempt from real estate tax.

MIAA’s contention: Airport Lands and Buildings are owned by the Republic. The government cannot tax itself. The reason for tax exemption of public property is that its taxation would not inure to any public advantage, since in such a case the tax debtor is also the tax creditor.

Issue:

WON Airport Lands and Buildings of MIAA are exempt from real estate tax under existing laws? Yes. Ergo, the real estate tax assessments issued by the City of Parañaque, and all proceedings taken pursuant to such assessments, are void.

Held:

1. MIAA is Not a Government-Owned or Controlled Corporation

MIAA is not a government-owned or controlled corporation but an instrumentality of the National Government and thus exempt from local taxation.

MIAA is not a stock corporation because it has no capital stock divided into shares. MIAA has no stockholders or voting shares.

MIAA is also not a non-stock corporation because it has no members. A non-stock corporation must have members.

MIAA is a government instrumentality vested with corporate powers to perform efficiently its governmental functions. MIAA is like any other government instrumentality, the only difference is that MIAA is vested with corporate powers.

When the law vests in a government instrumentality corporate powers, the instrumentality does not become a corporation. Unless the government instrumentality is organized as a stock or non-stock corporation, it remains a government instrumentality exercising not only governmental but also corporate powers. Thus, MIAA exercises the governmental powers of eminent domain, police authority and the levying of fees and charges. At the same time, MIAA exercises “all the powers of a corporation under the Corporation Law, insofar as these powers are not inconsistent with the provisions of this Executive Order.”

2. Airport Lands and Buildings of MIAA are Owned by the Republic

a. Airport Lands and Buildings are of Public Dominion

The Airport Lands and Buildings of MIAA are property of public dominion and therefore owned by the State or the Republic of the Philippines.

No one can dispute that properties of public dominion mentioned in Article 420 of the Civil Code, like “roads, canals, rivers, torrents, ports and bridges constructed by the State,” are owned by the State. The term “ports” includes seaports

Page 2: Municipal Corporations

MIAA vs CAand airports. The MIAA Airport Lands and Buildings constitute a “port” constructed by the State. Under Article 420 of the Civil Code, the MIAA Airport Lands and Buildings are properties of public dominion and thus owned by the State or the Republic of the Philippines.

The Airport Lands and Buildings are devoted to public use because they are used by the public for international and domestic travel and transportation. The fact that the MIAA collects terminal fees and other charges from the public does not remove the character of the Airport Lands and Buildings as properties for public use.

The charging of fees to the public does not determine the character of the property whether it is of public dominion or not. Article 420 of the Civil Code defines property of public dominion as one “intended for public use.” The terminal fees MIAA charges to passengers, as well as the landing fees MIAA charges to airlines, constitute the bulk of the income that maintains the operations of MIAA. The collection of such fees does not change the character of MIAA as an airport for public use. Such fees are often termed user’s tax. This means taxing those among the public who actually use a public facility instead of taxing all the public including those who never use the particular public facility.

b. Airport Lands and Buildings are Outside the Commerce of Man

The Court has also ruled that property of public dominion, being outside the commerce of man, cannot be the subject of an auction sale.

Properties of public dominion, being for public use, are not subject to levy, encumbrance or disposition through public or private sale. Any encumbrance, levy on execution or auction sale of any property of public dominion is void for being contrary to public policy. Essential public services will stop if properties of public dominion are subject to encumbrances, foreclosures and auction sale. This will happen if the City of Parañaque can foreclose and compel the auction sale of the 600-hectare runway of the MIAA for non-payment of real estate tax.

c. MIAA is a Mere Trustee of the Republic

MIAA is merely holding title to the Airport Lands and Buildings in trust for the Republic. Section 48, Chapter 12, Book I of the Administrative Code allows instrumentalities like MIAA to hold title to real properties owned by the Republic. n MIAA’s case, its status as a mere trustee of the Airport Lands and Buildings is clearer because even its executive head cannot sign the deed of conveyance on behalf of the Republic. Only the President of the Republic can sign such deed of conveyance.

d. Transfer to MIAA was Meant to Implement a Reorganization

The transfer of the Airport Lands and Buildings from the Bureau of Air Transportation to MIAA was not meant to transfer beneficial ownership of these assets from the Republic to MIAA. The purpose was merely toreorganize a division in the Bureau of Air Transportation into a separate and autonomous body. The Republic remains the beneficial owner of the Airport Lands and Buildings. MIAA itself is owned solely by the Republic. No party claims any ownership rights over MIAA’s assets adverse to the Republic.

e. Real Property Owned by the Republic is Not Taxable

Sec 234 of the LGC provides that real property owned by the Republic of the Philippines or any of its political subdivisions except when the beneficial use thereof has been granted, for consideration or otherwise, to a taxable person following are exempted from payment of the real property tax.

However, portions of the Airport Lands and Buildings that MIAA leases to private entities are not exempt from real estate tax. For example, the land area occupied by hangars that MIAA leases to private corporations is subject to real estate tax.

Page 3: Municipal Corporations

ACORD vs. Zamora

EN BANC

[G.R. No. 144256.  June 8, 2005]

ALTERNATIVE CENTER FOR ORGANIZATIONAL REFORMS AND DEVELOPMENT, INC. (ACORD), BALAY MINDANAW FOUNDATION, INC. (BMFI); BARRIOS, INC.; CAMARINES SUR NGO-PO DEVELOPMENT NETWORK, INC. (CADENET); CENTER FOR PARTICIPATORY GOVERNANCE (CPAG); ENVIRONMENTAL LEGAL ASSISTANCE CENTER, INC. (ELAC); FELLOWSHIP FOR ORGANIZING ENDEAVORS (FORGE); FOUNDATION FOR LOCAL AUTONOMY AND GOOD GOVERNNANCE, INC. (FLAGG); INSTITUTE OF POLITICS AND GOVERNANCE (IPG); KAISAHAN PARA SA KAUNLARAN NG KANAYUNAN AT REPORMANG PANSAKAHAN (KAISAHAN); MANGGAGAGAWANG KABABAIHANG MITHI AY PAGLAYA (MAKALAYA); NAGA CITY PEOPLE’S COUNCIL (NCPC); NGO-PO COUNCIL OF CAMARINES SUR FOR COMMUNITY PARTICIPATION AND EMPOWERMENT, INC. (NPCCS); PAILIG DEVELOPMENT FOUNDATION INC. (PDFI); PHILIPPINE ECUMENICAL ACTION FOR COMMUNITY EMPOWERMENT FOUNDATION, INC. (PEACE FOUNDATION, INC.); PHILIPPINE PARTNERSHIP FOR THE DEVELOPMENT OF HUMAN RESOURCES IN RURAL AREAS (PHILDHRRA); PILIPINA, INC. (ANG KILUSAN NG KABABAIHANG PILIPINO); SENTRO NG ALTERNATIBONG LINGAP PANLIGAL (SALIGAN); URBAN LAND REFORM TASK FORCE (ULR-TF); ADELINO C. LAVADOR; PUNONG BARANGAY ISABEL MENDEZ; PUNONG BARANGAY CAROLINA ROMANOS, petitioners, vs. HON. RONALDO ZAMORA, in his capacity as Executive Secretary, HON. BENJAMIN DIOKNO, in his capacity as Secretary, Department of Budget and Management, HON. LEONOR MAGTOLIS-BRIONES, in her capacity as National Treasurer, and the COMMISSION ON AUDIT, respondents.

D E C I S I O N

CARPIO MORALES, J.:

Pursuant to Section 22, Article VII of the Constitution [1] mandating the President to submit to Congress a budget of expenditures within thirty days before the opening of every regular session, then President Joseph Ejercito Estrada submitted the National Expenditures Program for Fiscal Year 2000.  In the said Program, the President proposed an Internal Revenue Allotment (IRA) in the amount of P121,778,000,000 following the formula provided for in Section 284 of the Local Government Code of 1992,viz:

Page 4: Municipal Corporations

ACORD vs. ZamoraSECTION 284.  Allotment of Internal Revenue Taxes. — Local government units shall have a share in the national internal revenue taxes based on the collection of the third fiscal year preceding the current fiscal year as follows:

(a)     On the first year of the effectivity of this Code, thirty percent (30%);

(b)     On the second year, thirty-five percent (35%); and

(c)     On the third year and thereafter, forty percent (40%).

x x x (Emphasis supplied)

On February 16, 2000, the President approved House Bill No. 8374 – a bill sponsored in the Senate by then Senator John H. Osmeña who was the Chairman of the Committee on Finance.  This bill became Republic Act No. 8760, “AN ACT APPROPRIATING FUNDS FOR THE OPERATION OF THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES FROM JANUARY ONE TO DECEMBER THIRTY-ONE, TWO THOUSAND, AND FOR OTHER PURPOSES”.

The act, otherwise known as the General Appropriations Act (GAA) for the Year 2000, provides under the heading “ALLOCATIONS TO LOCAL GOVERNMENT UNITS” that the IRA for local government units shall amount to P111,778,000,000:

XXXVII. ALLOCATIONS TO LOCALGOVERNMENT UNITS

A.      INTERNAL REVENUE ALLOTMENT

For apportionment of the shares of local government units in the internal revenue taxes in accordance with the purpose indicated hereunder           ………………………………………………………….……….. P111,778,000,000

New Appropriations, by Purpose

Current Operating Expenditures

Maintenanceand Other

Personal       Operating      CapitalServices          Expenses       Outlays            Total

A.      PURPOSE(S)

a.       Internal Revenue

Allotment                     P111,778,000,000       P111,778,000,000

x x x

Page 5: Municipal Corporations

ACORD vs. ZamoraTOTAL NEW

APPROPRIATIONS                          ………            P 111,778,000,000

In another part of the GAA, under the heading “UNPROGRAMMED FUND,” it is provided that an amount of P10,000,000,000 (P10 Billion), apart from theP111,778,000,000 mentioned above, shall be used to fund the IRA, which amount shall be released only when the original revenue targets submitted by the President to Congress can be realized   based on a quarterly assessment to be conducted by certain committees which the GAA specifies, namely, the Development Budget Coordinating Committee, the Committee on Finance of the Senate, and the Committee on Appropriations of the House of Representatives.  

LIV. UNPROGRAMMED FUND

For fund requirements in accordance with the purposes indicated hereunder                       ……………                             P48,681,831,000

A. PURPOSE(S)

x x x x

6. AdditionalOperationalRequirementsand Projects of                                                              P14,788,764,000

Agencies

x x x x

Special Provisions

1.       Release of the Fund.  The amounts herein appropriated shall be released only when the revenue collections exceed the original revenue targets submitted by the President of the Philippines to Congress pursuant to Section 22, Article VII of the Constitution or when the corresponding funding or receipts for the purpose have been realized except in the special cases covered by specific procedures in Special Provision Nos. 2, 3, 4, 5, 7, 8, 9, 13  and 14 herein:  PROVIDED, That in cases of foreign-assisted projects, the existence of a perfected loan agreement shall be sufficient compliance for the issuance of a Special Allotment Release Order covering the loan proceeds:  PROVIDED, FURTHER, That no amount of the Unprogrammed Fund shall be funded out of the savings generated from programmed items in this Act.

x x x x

4.       Additional Operational Requirements and Projects of Agencies.  The appropriations for Purpose 6 – Additional Operational Requirements and Projects of Agencies herein indicated shall be released only when the original revenue targets submitted by the President of the

Page 6: Municipal Corporations

ACORD vs. ZamoraPhilippines to Congress pursuant to Section 22, Article VII of the Constitution can be realized based on a quarterly assessment of the Development Budget Coordinating Committee, the Committee on Finance of the Senate and the Committee on Appropriations of the House of Representatives and shall be used to fund the following:

x x x x

Internal Revenue Allotments

Maintenance andOther Operating

Expenses                                        P10,000,000,000

--------------------

Total, IRA                                        P10,000,000,000

x x x x

Total                                                              P14,788,764,000

x x x x (Emphasis supplied)

Thus, while the GAA appropriates P111,778,000,000 of IRA as Programmed Fund, it appropriates a separate amount of P10 Billion of IRA under the classification ofUnprogrammed Fund, the latter amount to be released only upon the occurrence of the condition stated in the GAA.

On August 22, 2000, a number of non-governmental organizations (NGOs) and people’s organizations, along with three barangay officials filed with this Court the petition at bar, for Certiorari, Prohibition and Mandamus With Application for Temporary Restraining Order, against respondents then Executive Secretary Ronaldo Zamora, then Secretary of the Department of Budget and Management Benjamin Diokno, then National Treasurer Leonor Magtolis-Briones, and the Commission on Audit,  challenging the constitutionality of above-quoted provision of XXXVII (ALLOCATIONS TO LOCAL GOVERNMENT UNITS) referred to by petitioners as Section 1, XXXVII (A), and LIV (UNPROGRAMMED FUND) Special Provisions 1 and 4 of the GAA (the GAA provisions). 

Petitioners contend that:

1.    SECTION 1, XXXVII (A) AND LIV, SPECIAL PROVISIONS 1 AND 4, OF THE YEAR 2000 GAA ARE NULL AND VOID FOR BEING UNCONSTITUTIONAL AS THEY VIOLATE THE   AUTONOMY OF LOCAL   GOVERNMENTS BY UNLAWFULLY REDUCING BY TEN BILLION PESOS ( P 10 BILLION) THE INTERNAL REVENUE ALLOTMENTS DUE TO THE LOCAL GOVERNMENTS AND WITHHOLDING THE RELEASE OF SUCH AMOUNT BY PLACING THE SAME UNDER “UNPROGRAMMED FUNDS.”  THIS VIOLATES THE CONSTITUTIONAL MANDATE IN ART. X, SEC. 6, THAT THE LOCAL GOVERNMENT UNITS’ JUST SHARE IN THE NATIONAL TAXES SHALL BE

Page 7: Municipal Corporations

ACORD vs. ZamoraAUTOMATICALLY RELEASED TO THEM.  IT ALSO VIOLATES THE LOCAL GOVERNMENT CODE, SPECIFICALLY, SECS. 18, 284, AND 286.

2.    SECTION 1, XXXVII (A) AND LIV, SPECIAL PROVISIONS 1 AND 4, OF THE YEAR 2000 GAA ARE NULL AND VOID FOR BEING UNCONSTITUTIONAL AS THEY VIOLATE THE AUTONOMY OF LOCAL GOVERNMENTS BY PLACING TEN BILLION PESOS ( P 10 BILLION) OF THE INTERNAL REVENUE ALLOTMENTS DUE TO THE LOCAL GOVERNMENTS, EFFECTIVELY AND PRACTICALLY, WITHIN THE CONTROL OF THE CENTRAL AUTHORITIES.

3.    SECTION 1, XXXVII (A) AND LIV, SPECIAL PROVISIONS 1 AND 4, OF THE YEAR 2000 GAA ARE NULL AND VOID FOR BEING UNCONSTITUTIONAL ASTHE PLACING OF   P 10 BILLION PESOS OF THE IRA UNDER “UNPROGRAMMED FUNDS” CONSTITUTES AN UNDUE DELEGATION OF LEGISLATIVE POWER TO THE RESPONDENTS.

4.    SECTION 1, XXXVII (A) AND LIV, SPECIAL PROVISIONS 1 AND 4, OF THE YEAR 2000 GAA ARE NULL AND VOID FOR BEING UNCONSTITUTIONAL ASTHE   PLACING OF   P 10 BILLION PESOS OF THE IRA UNDER “UNPROGRAMMED FUNDS” CONSTITUTES AN AMENDMENT OF THE LOCAL GOVERNMENT CODE OF 1991, WHICH CANNOT BE DONE IN A GENERAL APPROPRIATIONS ACT AND WHICH PURPOSE WAS NOT REFLECTED IN THE TITLE OF THE YEAR 2000 GAA.

5.    THE YEAR 2000 GAA’S REDUCTION OF THE IRA UNDERMINES THE FOUNDATION OF OUR LOCAL GOVERNANCE SYSTEM   WHICH IS ESSENTIAL TO THE EFFICIENT OPERATION OF THE GOVERNMENT AND THE DEVELOPMENT OF THE NATION.

6.    THE CONGRESS AND THE EXECUTIVE, IN PASSING AND APPROVING, RESPECTIVELY, THE YEAR 2000 GAA, AND THE RESPONDENTS, IN IMPLEMENTING THE SAID YEAR 2000 GAA, INSOFAR AS SECTION 1, XXXVII (A) AND LIV, SPECIAL PROVISIONS 1 AND 4, ARE CONCERNED, ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION AS THEY TRANSGRESSED THE CONSTITUTION AND THE LOCAL GOVERNMENT CODE’S PROHIBITION ON ANY INVALID REDUCTION AND WITHHOLDING OF THE LOCAL GOVERNMENTS’ IRA.  (Underscoring supplied)

After the parties had filed their respective memoranda, a “MOTION FOR INTERVENTION/MOTION TO ADMIT ATTACHED PETITION FOR INTERVENTION” was filed on October 22, 2001 by the Province of Batangas, represented by then Governor Hermilando I. Mandanas.

On November 6, 2001, the Province of Nueva Ecija, represented by Governor Tomas N. Joson III, likewise filed a “MOTION FOR LEAVE OF COURT TO INTERVENE AND FILE PETITION-IN-INTERVENTION”.

Page 8: Municipal Corporations

ACORD vs. ZamoraThe motions for intervention, both of which adopted the arguments of the main petition, [2] were

granted by this Court.[3] 

Although the effectivity of the Year 2000 GAA has ceased, this Court shall nonetheless proceed to resolve the issues raised in the present case, it being impressed with public interest.  The ruling of this Court in the case of The Province of Batangas v. Romulo,[4] wherein GAA provisions relating to the IRA were likewise challenged, is in point, to wit:

Granting arguendo that, as contended by the respondents, the resolution of the case had already been overtaken by supervening events as the IRA, including the LGSEF, for 1999, 2000 and 2001, had already been released and the government is now operating under a new appropriations law, still, there is compelling reason for this Court to resolve the substantive issue raised by the instant petition.  Supervening events, whether intended or accidental, cannot prevent the Court from rendering a decision if there is a grave violation of the Constitution.  Even in cases where supervening events had made the cases moot, the Court did not hesitate to resolve the legal or constitutional issues raised to formulate controlling principles to guide the bench, bar and public.

Another reason justifying the resolution by this Court of the substantive issue now before it is the rule that courts will decide a question otherwise moot and academic if it is “capable of repetition, yet evading review.” For the GAAs in the coming years may contain provisos similar to those now being sought to be invalidated, and yet, the question may not be decided before another GAA is enacted.  It, thus, behooves this Court to make a categorical ruling on the substantive issue now.[5]

Passing on the arguments of all parties, bearing in mind the dictum that “the court should not form a rule of constitutional law broader than is required by the precise facts to which it is applied,” [6] this Court finds that only the following issues need to be resolved in the present petition:  (1) whether the petition contains proper verifications and certifications against forum-shopping, (2) whether petitioners have the requisite standing to file this suit, and (3) whether the questioned provisions violate the constitutional injunction that the just share of local governments in the national taxes or the IRA shall be automatically released.

Sufficiency of Verification and Certification Against Forum-Shopping

Respondents assail as improperly executed petitioners’ verifications and certifications against forum-shopping as they merely state that the allegations of the Petition are “true of our knowledge and belief” instead of “true and correct of our personal knowledge or based on authentic records” as required under Rule 7, Section 4 of the Rules of Court.[7]

Jurisprudence is on petitioners’ side.  In Decano v. Edu,[8] this Court held:

Respondents finally raise a technical point referring to the allegedly defective verification of the petition filed in the trial court, contending that the clause in the verification statement "that I have read the contents of the said petition; and that [to] the best of my knowledge are true and correct" is insufficient since under section 6 of Rule 7, it is required that the person verifying must have read the pleading and that the allegations thereof are true of his own knowledge. We do not see any reason for rendering the said verification void. The statement “to the best of my knowledge are true and correct” referring to the allegations in the petition does not mean mere “knowledge, information and belief.” It

Page 9: Municipal Corporations

ACORD vs. Zamoraconstitutes substantial compliance with the requirement of section 6 of Rule 7, as held in Madrigal vs. Rodas (80 Phil. 252.). At any rate, this petty technicality deserves scant consideration where the question at issue is one   purely of law   and there is no need of delving into the veracity of the allegations in the petition, which are   not disputed   at all by respondents . As we have held time and again, imperfections of form and technicalities of procedure are to be disregarded except where substantial rights would otherwise be prejudiced.  (Emphasis and underscoring supplied)

Respondents go on to claim that the same verifications were signed by persons who were not authorized by the incorporated cause-oriented groups which they claim to represent, hence, the Petition should be treated as an unsigned pleading.

Indeed, only duly authorized natural persons may execute verifications in behalf of juridical entities such as petitioners NGOs and people’s organizations.  As this Court held in Santos v. CA, “In fact, physical actions, e.g., signing and delivery of documents, may be performed on behalf of the corporate entity only by specifically authorized individuals.”[9]

Nonetheless, the present petition cannot be treated as an unsigned pleading.  For even if the rule that representatives of corporate entities must present the requisite authorization were to be strictly applied, there would remain among the multi-group-petitioners the individuals who validly executed verifications in their own names, namely, petitioners Adelino C. Lavador, Punong Barangay Isabel Mendez, and Punong Barangay Carolina Romanos.

At all events, in light of the following ruling of this Court in Shipside Inc. v. CA:[10]

. . . in Loyola, Roadway, and Uy, the Court excused   non-compliance   with the requirement as to the certificate of non-forum shopping.   With more reason should we allow the instant petition since petitioner herein   did submit a certification on non-forum shopping , failing only to show proof that the signatory was authorized to do so.     That  petitioner subsequently submitted a secretary’s certificate attesting that Balbin was authorized to file an action on behalf of petitioner likewise mitigates this oversight.

It must also be kept in mind that while the requirement of the certificate of non-forum shopping is mandatory, nonetheless the requirements must not be interpreted too literally and thus defeat the objective of preventing the undesirable practice of forum-shopping (Bernardo v. NLRC, 255 SCRA 108 [1996]).  Lastly, technical rules of procedure should be used to promote, not frustrate justice.  While the swift unclogging of court dockets is a laudable objective, the granting of substantial justice is an even more urgent ideal. (Underscoring supplied),

a too literal interpretation must be avoided if it defeats the objective of preventing the practice of forum shopping.

Standing

Respondents assail petitioners’ standing in this controversy, proffering that it is the local government units – each having a separate juridical entity – which stand to be injured.

The subsequent intervention of the provinces of Batangas and Nueva Ecija which have adopted the arguments of petitioners has, however, made the question of standing academic.[11]

Page 10: Municipal Corporations

ACORD vs. ZamoraRespondents, contending that petitioners have no cause of action against them as they claim to

have no responsibility with respect to the mandate of the GAA provisions, proffer that the committees mentioned in the GAA provisions, namely, the Development Budget Coordinating Committee, Committee on Finance of the Senate, and Committee on Appropriations of the House of Representatives, should instead have been impleaded.

Respondents’ position does not lie.

The GAA provisions being challenged were not to be implemented solely by the committees specifically mentioned therein, for they being in the nature of appropriations provisions, they were also to be implemented by the executive branch, particularly the Department of Budget and Management (DBM) and the National Treasurer.  The task of the committees related merely to the conduct of the quarterly assessment required in the provisions, and not in the actual release of the IRA which is the duty of the executive.  Since the present controversy centers on the proper manner of   releasing   the IRA, the impleaded respondents are the proper parties to this suit.

In fact in earlier petitions likewise involving the constitutionality of provisions of previous general appropriations acts which this Court granted, the therein respondent officials were the same as those in the present case, e.g., Guingona v. Carague[12] and PHILCONSA v. Enriquez.[13]

Constitutionality of the GAA Provisions

Article X, Section 6 of the Constitution provides:

SECTION 6. Local government units shall have a just share, as determined by law, in the national taxes which shall be automatically released to them.

Petitioners argue that the GAA violated this constitutional mandate when it made the release of IRA contingent on whether revenue collections could meet the revenue targets originally submitted by the President, rather than making the release automatic.

Respondents counterargue that the above constitutional provision is   addressed not to the legislature   but to the executive, hence, the same does not prevent the legislature from imposing conditions upon the release of the IRA.   They cite the exchange between Commissioner (now Chief Justice) Davide and Commissioner Nolledo in the deliberations of the Constitutional Commission on the above-quoted Sec. 6, Art. X of the Constitution, to wit:

THE PRESIDENT.  How about the second sentence?

MR. DAVIDE.  The second sentence would be a new section that would be Section 13.  As modified it will read as follows:  “LOCAL GOVERNMENT UNITS SHALL HAVE A JUST SHARE, AS DETERMINED BY LAW, in the national taxes WHICH SHALL BE automatically PERIODICALLY released to them.”

MR. NOLLEDO.  That will be Section 12, subsection (1) in the amendment.

MR. DAVIDE.  No, we will just delete that because the second would be another section so Section 12 would only be this:  “LOCAL GOVERNMENT UNITS SHALL HAVE A JUST SHARE, AS

Page 11: Municipal Corporations

ACORD vs. ZamoraDETERMINED BY LAW, in the national taxes WHICH SHALL BE automatically PERIODICALLY released to them.”

MR. NOLLEDO.  But the word “PERIODICALLY” may mean possibly withholding the automatic release to them by adopting certain periods of automatic release.  If we use the word “automatically” without “PERIODICALLY,” the latter may be already contemplated by “automatically.” So, the Committee objects to the word “PERIODICALLY.”

MR. DAVIDE.  If we do not say PERIODICALLY, it might be very, very difficult to comply with it because these are taxes collected and actually released by the national government every quarter.  It is not that upon collection a portion should immediately be released.  It is quarterly.  Otherwise, the national government will have to remit everyday and that would be very expensive.

MR. NOLLEDO.  That is not hindered by the word “automatically.”  But if we put “automatically” and “PERIODICALLY” at the same time, that means certain periods have to be observed as will be set forth by the Budget Officer thereby negating the meaning of “automatically.”

MR. DAVIDE.  On the other hand, if we do not state PERIODICALLY, it may be done every semester; it may be done at the end of the year.  It is still automatic release.

MR. NOLLEDO.  As far as the Committee is concerned, we vigorously object to the word “PERIODICALLY.”

MR. DAVIDE.  Only the word PERIODICALLY?

MR. NOLLEDO.  If the Commissioner is amenable to deleting that, we will accept the amendment.

MR. DAVIDE.  I will agree to the deletion of the word PERIODICALLY.

MR. NOLLEDO.  Thank you.

The Committee accepts the amendment.  (Emphasis supplied)[14]

In the above exchange of statements, it is clear that although Commissioners Davide and Nolledo held different views with regard to the proper wording of the constitutional provision, they shared a common assumption that the entity which would execute the automatic release of internal revenue was the executive department.

Commissioner Davide referred to the national government as the entity that collects and remits internal revenue. Similarly, Commissioner Nolledo alluded to the Budget Officer, who is clearly under the executive branch.

Respondents thus infer that the subject constitutional provision merely prevents the executive branch of the government from “unilaterally” withholding the IRA, but not the legislature from authorizing the executive branch to withhold the same.  In the words of respondents, “This essentially means that the President or any member of the Executive Department cannot unilaterally, i.e., without the backing of statute, withhold the release of the IRA.”[15]

Respondents’ position does not lie.

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ACORD vs. ZamoraAs the Constitution lays upon the executive the duty to automatically release the just share of local

governments in the national taxes, so it enjoins the legislature not to pass laws that might prevent the executive from performing this duty.  To hold that the executive branch may disregard constitutional provisions which define its duties, provided it has the backing of statute, is virtually to make the Constitution amendable by statute – a proposition which is patently absurd.

Moreover, there is merit in the argument of the intervenor Province of Batangas that, if indeed the framers intended to allow the enactment of statutes making the release of IRA conditional instead of automatic, then Article X, Section 6 of the Constitution would have been worded differently.  Instead of reading “Local government units shall have a just share, as determined by law, in the national taxes which shall be automatically released to them” (italics supplied), it would have read as follows, so the Province of Batangas posits:

“Local government units shall have a just share, as determined by law, in the national taxes which shall be [automatically] released to them as provided by law,” or,

“Local government units shall have a just share in the national taxes which shall be [automatically] released to them as provided by law,” or

“Local government units shall have a just share, as determined by law, in the national taxes which shall be automatically released to them subject to exceptions Congress may provide.”[16](Italics supplied)

Since, under Article X, Section 6 of the Constitution, only the just share of local governments is qualified by the words “as determined by law,” and not the release thereof, the plain implication is that Congress is not authorized by the Constitution to hinder or impede the automatic release of the IRA.

Indeed, that Article X, Section 6 of the Constitution did bind the legislative just as much as the executive branch was presumed in the ruling of this Court in the case ofThe Province of Batangas v. Romulo[17] which is analogous in many respects to the one at bar.

In Batangas, the petitioner therein challenged the constitutionality of certain provisos of the GAAs for FY 1999, 2000, and 2001 which set up the Local Government Service Equalization Fund (LGSEF).  The LGSEF was a portion of the IRA which was to be released only upon a finding of the Oversight Committee on Devolution that the LGU concerned had complied with the guidelines issued by said committee.  This Court measured the challenged legislative acts against Article X, Section 6 and declared them unconstitutional – a ruling which presupposes that the legislature, like the executive, is mandated by said constitutional provision to ensure that the just share of local governments in the national taxes are automatically released.

Respondents, in further support of their claim that the automatic release requirement in the Constitution constrains only the executive branch and not the legislature, cite three statutory provisions whereby the legislature authorized the executive branch to withhold the IRA in certain circumstances, namely, Section 70 of the Philippine National Police Reform and Reorganization Act of 1998, [18] Section 531(e) of the Local Government Code,[19] and Section 10 of Republic Act 7924 (1995). [20]  Towards the same end, respondents also cite Rule XXXII, Article 383(c) of the Rules and Regulations Implementing the Local Government Code.[21]

While statutes and implementing rules are entitled to great weight in constitutional construction as indicators of contemporaneous interpretation, such interpretation is not necessarily binding or conclusive on the courts.  In Tañada v. Cuenco, the Court held:

Page 13: Municipal Corporations

ACORD vs. ZamoraAs a consequence, “where the meaning of a constitutional provision is clear, a contemporaneous or practical . . . executive interpretation thereof is entitled to no weight and will not be allowed to distort or in any way change its natural meaning.”  The reason is that “the application of the doctrine of contemporaneous construction is   more restricted   as applied to the interpretation of constitutional   provisions than when applied to statutory provisions,” and that “except as to matters committed by the constitution itself to the discretion of some other department,contemporaneous or practical construction is not necessarily binding upon the courts, even in a doubtful case.”  Hence, “if in the judgment of the court, such construction is erroneous and its further application is not made imperative by any paramount considerations of public policy, it may be rejected.” (Emphasis and underscoring supplied, citations omitted)[22]

The validity of the legislative acts assailed in the present case should, therefore, be assessed in light of Article X, Section 6 of the Constitution.

Again, in Batangas,[23] this Court interpreted the subject constitutional provision as follows:

When parsed, it would be readily seen that this provision mandates that (1) the LGUs shall have a “just share” in the national taxes; (2) the “just share” shall be determined by law; and (3) the “just share” shall be automatically released to the LGUs.

x x x

Webster’s Third New International Dictionary defines “automatic” as “involuntary either wholly or to a major extent so that any activity of the will is largely negligible; of a reflex nature; without volition; mechanical; like or suggestive of an automaton.” Further, the word “automatically” is defined as “in an automatic manner: without thought or conscious intention.” Being “automatic,” thus, connotes something mechanical, spontaneous and perfunctory. x x x” (Emphasis and underscoring supplied)[24]

Further on, the Court held:

To the Court’s mind, the entire process involving the distribution and release of the LGSEF is constitutionally impermissible. The LGSEF is part of the IRA or “just share” of the LGUs in the national taxes.  To subject its distribution and release to the vagaries of the implementing rules and regulations, including the guidelines and mechanisms unilaterally prescribed by the Oversight Committee from time to time, as sanctioned by the assailed provisos in the GAAs of 1999, 2000 and 2001 and the OCD resolutions, makes the release not automatic, a flagrant violation of the constitutional and statutory mandate that the “just share” of the LGUs “shall be automatically released to them.” The LGUs are, thus, placed at the mercy of the Oversight Committee.

Where the law, the Constitution in this case, is clear and unambiguous, it must be taken to mean exactly what it says, and courts have no choice but to see to it that the mandate is obeyed.  Moreover, as correctly posited by the petitioner, the use of the word “shall” connotes a mandatory order.  Its use in a statute denotes an imperative obligation and is inconsistent with the idea of discretion. x x x (Emphasis and underscoring supplied)[25]

While “automatic release” implies that the just share of the local governments determined by law should be released to them as a matter of course, the GAA provisions, on the other hand, withhold its

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ACORD vs. Zamorarelease pending an event which is not even certain of occurring.  To rule that the term “automatic release” contemplates such conditional release would be to strip the term “automatic” of all meaning.

Additionally, to interpret the term automatic release in such a broad manner would be inconsistent with the ruling in Pimentel v. Aguirre.[26] In the said case, the executive withheld the release of the IRA pending an assessment very similar to the one provided in the GAA.  This Court ruled that such withholding contravened the constitutional mandate of an automatic release, viz:

Section 4 of AO 372 cannot, however, be upheld.  A basic feature of local fiscal autonomy is the   automatic   release of the shares of LGUs in the national internal revenue .  This is mandated by no less than the Constitution. The Local Government Code specifies further that the release shall be made directly to the LGU concerned within five (5) days after every quarter of the year and “shall not be subject to any lien or holdback that may be imposed by the national government for whatever purpose.” As a rule, the term “shall” is a word of command that must be given a compulsory meaning. The provision is, therefore, imperative.

Section 4 of AO 372, however, orders the withholding, effective January 1, 1998, of 10 percent of the LGUs' IRA “pending the assessment and evaluation by the Development Budget Coordinating Committee of the emerging fiscal situation” in the country.   Such withholding clearly contravenes the Constitution and the law. x x x[27] (Italics in the original; underscoring supplied)

There is no substantial difference between the withholding of IRA involved in Pimentel and that in the present case, except that here it is the legislature, not the executive, which has authorized the withholding of the IRA.  The distinction notwithstanding, the ruling in Pimentel remains applicable.  As explained above, Article X, Section 6 of the Constitution – the same provision relied upon in Pimentel – enjoins both the legislative and executive branches of government.  Hence, as in Pimentel, under the same constitutional provision, the legislative is barred from withholding the release of the IRA.

It bears stressing, however, that in light of the proviso in Section 284 of the Local Government Code which reads:

Provided, That in the event that the national government incurs an unmanageable public sector deficit, the President of the Philippines is hereby authorized, upon the recommendation of Secretary of Finance, Secretary of Interior and Local Government and Secretary of Budget and Management, and subject to consultation with the presiding officers of both Houses of Congress and the presidents of the "liga," to make the necessary adjustments in the internal revenue allotment of local government units but in no case shall the allotment be less than thirty percent (30%) of the collection of national internal revenue taxes of the third fiscal year preceding the current fiscal year: Provided, further, That in the first year of the effectivity of this Code, the local government units shall, in addition to the thirty percent (30%) internal revenue allotment which shall include the cost of devolved functions for essential public services, be entitled to receive the amount equivalent to the cost of devolved personal services.  (Underscoring supplied),

the only possible exception to mandatory automatic release of the IRA is, as held in Batangas:

…if the national internal revenue collections for the current fiscal year is less than 40 percent of the collections of the preceding third fiscal year, in which case what should be automatically released shall be a proportionate amount of the collections for the current fiscal year.  The adjustment may

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ACORD vs. Zamoraeven be made on a quarterly basis depending on the actual collections of national internal revenue taxes for the quarter of the current fiscal year. x x x[28]

A final word.  This Court recognizes that the passage of the GAA provisions by Congress was motivated by the laudable intent to “lower the budget deficit in line with prudent fiscal management.”[29] The pronouncement in Pimentel, however, must be echoed: “[T]he rule of law requires that even the best intentions must be carried out within the parameters of the Constitution and the law.  Verily, laudable purposes must be carried out by legal methods.”[30]

WHEREFORE, the petition is GRANTED. XXXVII and LIV Special Provisions 1 and 4 of the Year 2000 GAA are hereby declared unconstitutional insofar as they set apart a portion of the IRA, in the amount of P10 Billion, as part of the UNPROGRAMMED FUND.

SO ORDERED.

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QC vs Bayantel

Republic of the PhilippinesSUPREME COURT

Manila

SECOND DIVISION

G.R. No. 162015             March 6, 2006

THE CITY GOVERNMENT OF QUEZON CITY, AND THE CITY TREASURER OF QUEZON CITY, DR. VICTOR B. ENRIGA, Petitioners, vs.BAYAN TELECOMMUNICATIONS, INC., Respondent.

D E C I S I O N

GARCIA,J.:

Before the Court, on pure questions of law, is this petition for review on certiorari under Rule 45 of the Rules of Court to nullify and set aside the following issuances of the Regional Trial Court (RTC) of Quezon City, Branch 227, in its Civil Case No. Q-02-47292, to wit:

1) Decision1 dated June 6, 2003, declaring respondent Bayan Telecommunications, Inc. exempt from real estate taxation on its real properties located in Quezon City; and

2) Order2 dated December 30, 2003, denying petitioners’ motion for reconsideration.

The facts:

Respondent Bayan Telecommunications, Inc.3 (Bayantel) is a legislative franchise holder under Republic Act (Rep. Act) No. 32594 to establish and operate radio stations for domestic telecommunications, radiophone, broadcasting and telecasting.

Of relevance to this controversy is the tax provision of Rep. Act No. 3259, embodied in Section 14 thereof, which reads:

SECTION 14. (a) The grantee shall be liable to pay the same taxes on its real estate, buildings and personal property, exclusive of the franchise, as other persons or corporations are now or hereafter may be required by law to pay. (b) The grantee shall further pay to the Treasurer of the Philippines each year, within ten days after the audit and approval of the accounts as prescribed in this Act, one and one-half per centum of all gross receipts from the business transacted under this franchise by the said grantee (Emphasis supplied).

On January 1, 1992, Rep. Act No. 7160, otherwise known as the "Local Government Code of 1991" (LGC), took effect. Section 232 of the Code grants local government units within the Metro Manila Area the power to levy tax on real properties, thus:

SEC. 232. – Power to Levy Real Property Tax. – A province or city or a municipality within the Metropolitan Manila Area may levy an annual ad valorem tax on real property such as land, building, machinery and other improvements not hereinafter specifically exempted.

Complementing the aforequoted provision is the second paragraph of Section 234 of the same Code which withdrew any exemption from realty tax heretofore granted to or enjoyed by all persons, natural or juridical, to wit:

SEC. 234 - Exemptions from Real Property Tax. The following are exempted from payment of the real property tax:

xxx xxx xxx

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QC vs BayantelExcept as provided herein, any exemption from payment of real property tax previously granted to, or enjoyed by, all persons, whether natural or juridical, including government-owned-or-controlled corporations is hereby withdrawn upon effectivity of this Code (Emphasis supplied).

On July 20, 1992, barely few months after the LGC took effect, Congress enacted Rep. Act No. 7633, amending Bayantel’s original franchise. The amendatory law (Rep. Act No. 7633) contained the following tax provision:

SEC. 11. The grantee, its successors or assigns shall be liable to pay the same taxes on their real estate, buildings and personal property, exclusive of this franchise, as other persons or corporations are now or hereafter may be required by law to pay. In addition thereto, the grantee, its successors or assigns shall pay a franchise tax equivalent to three percent (3%) of all gross receipts of the telephone or other telecommunications businesses transacted under this franchise by the grantee, its successors or assigns and the said percentage shall be in lieu of all taxes on this franchise or earnings thereof. Provided, That the grantee, its successors or assigns shall continue to be liable for income taxes payable under Title II of the National Internal Revenue Code …. xxx. [Emphasis supplied]

It is undisputed that within the territorial boundary of Quezon City, Bayantel owned several real properties on which it maintained various telecommunications facilities. These real properties, as hereunder described, are covered by the following tax declarations:

(a) Tax Declaration Nos. D-096-04071, D-096-04074, D-096-04072 and D-096-04073 pertaining to Bayantel’s Head Office and Operations Center in Roosevelt St., San Francisco del Monte, Quezon City allegedly the nerve center of petitioner’s telecommunications franchise operations, said Operation Center housing mainly petitioner’s Network Operations Group and switching, transmission and related equipment;

(b) Tax Declaration Nos. D-124-01013, D-124-00939, D-124-00920 and D-124-00941 covering Bayantel’s land, building and equipment in Maginhawa St., Barangay East Teacher’s Village, Quezon City which houses telecommunications facilities; and

(c) Tax Declaration Nos. D-011-10809, D-011-10810, D-011-10811, and D-011-11540 referring to Bayantel’s Exchange Center located in Proj. 8, Brgy. Bahay Toro, Tandang Sora, Quezon City which houses the Network Operations Group and cover switching, transmission and other related equipment.

In 1993, the government of Quezon City, pursuant to the taxing power vested on local government units by Section 5, Article X of the 1987 Constitution, infra, in relation to Section 232 of the LGC, supra, enacted City Ordinance No. SP-91, S-93, otherwise known as the Quezon City Revenue Code (QCRC),5 imposing, under Section 5 thereof, a real property tax on all real properties in Quezon City, and, reiterating in its Section 6, the withdrawal of exemption from real property tax under Section 234 of the LGC, supra. Furthermore, much like the LGC, the QCRC, under its Section 230, withdrew tax exemption privileges in general, as follows:

SEC. 230. Withdrawal of Tax Exemption Privileges. – Unless otherwise provided in this Code, tax exemptions or incentives granted to, or presently enjoyed by all persons, whether natural or juridical, including government owned or controlled corporations, except local water districts, cooperatives duly registered under RA 6938, non-stock and non-profit hospitals and educational institutions, business enterprises certified by the Board of Investments (BOI) as pioneer or non-pioneer for a period of six (6) and four (4) years, respectively, … are hereby withdrawn effective upon approval of this Code (Emphasis supplied).

Conformably with the City’s Revenue Code, new tax declarations for Bayantel’s real properties in Quezon City were issued by the City Assessor and were received by Bayantel on August 13, 1998, except one (Tax Declaration No. 124-01013) which was received on July 14, 1999.

Meanwhile, on March 16, 1995, Rep. Act No. 7925,6 otherwise known as the "Public Telecommunications Policy Act of the Philippines," envisaged to level the playing field among telecommunications companies, took effect. Section 23 of the Act provides:

SEC. 23. Equality of Treatment in the Telecommunications Industry. – Any advantage, favor, privilege, exemption, or immunity granted under existing franchises, or may hereafter be granted, shall ipso facto become part of previously

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QC vs Bayantelgranted telecommunications franchises and shall be accorded immediately and unconditionally to the grantees of such franchises: Provided, however, That the foregoing shall neither apply to nor affect provisions of telecommunications franchises concerning territory covered by the franchise, the life span of the franchise, or the type of service authorized by the franchise.

On January 7, 1999, Bayantel wrote the office of the City Assessor seeking the exclusion of its real properties in the city from the roll of taxable real properties. With its request having been denied, Bayantel interposed an appeal with the Local Board of Assessment Appeals (LBAA). And, evidently on its firm belief of its exempt status, Bayantel did not pay the real property taxes assessed against it by the Quezon City government.

On account thereof, the Quezon City Treasurer sent out notices of delinquency for the total amount ofP43,878,208.18, followed by the issuance of several warrants of levy against Bayantel’s properties preparatory to their sale at a public auction set on July 30, 2002.

Threatened with the imminent loss of its properties, Bayantel immediately withdrew its appeal with the LBAA and instead filed with the RTC of Quezon City a petition for prohibition with an urgent application for a temporary restraining order (TRO) and/or writ of preliminary injunction, thereat docketed as Civil Case No. Q-02-47292, which was raffled to Branch 227 of the court.

On July 29, 2002, or in the eve of the public auction scheduled the following day, the lower court issued a TRO, followed, after due hearing, by a writ of preliminary injunction via its order of August 20, 2002.

And, having heard the parties on the merits, the same court came out with its challenged Decision of June 6, 2003, the dispositive portion of which reads:

WHEREFORE, premises considered, pursuant to the enabling franchise under Section 11 of Republic Act No. 7633, the real estate properties and buildings of petitioner [now, respondent Bayantel] which have been admitted to be used in the operation of petitioner’s franchise described in the following tax declarations are hereby DECLARED exempt from real estate taxation:

(1) Tax Declaration No. D-096-04071 –

(2) Tax Declaration No. D-096-04074 –

(3) Tax Declaration No. D-124-01013 –

(4) Tax Declaration No. D-011-10810 –

(5) Tax Declaration No. D-011-10811 –

(6) Tax Declaration No. D-011-10809 –

(7) Tax Declaration No. D-124-00941 –

(8) Tax Declaration No. D-124-00940 –

(9) Tax Declaration No. D-124-00939 –

(10) Tax Declaration No. D-096-04072 –

(11) Tax Declaration No. D-096-04073 –

(12) Tax Declaration No. D-011-11540 –

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QC vs BayantelThe preliminary prohibitory injunction issued in the August 20, 2002 Order of this Court is hereby made permanent. Since this is a resolution of a purely legal issue, there is no pronouncement as to costs.

SO ORDERED.

Their motion for reconsideration having been denied by the court in its Order dated December 30, 2003, petitioners elevated the case directly to this Court on pure questions of law, ascribing to the lower court the following errors:

I. [I]n declaring the real properties of respondent exempt from real property taxes notwithstanding the fact that the tax exemption granted to Bayantel in its original franchise had been withdrawn by the [LGC] and that the said exemption was not restored by the enactment of RA 7633.

II. [In] declaring the real properties of respondent exempt from real property taxes notwithstanding the enactment of the [QCRC] which withdrew the tax exemption which may have been granted by RA 7633.

III. [In] declaring the real properties of respondent exempt from real property taxes notwithstanding the vague and ambiguous grant of tax exemption provided under Section 11 of RA 7633.

IV. [In] declaring the real properties of respondent exempt from real property taxes notwithstanding the fact that [it] had failed to exhaust administrative remedies in its claim for real property tax exemption. (Words in bracket added.)

As we see it, the errors assigned may ultimately be reduced to two (2) basic issues, namely:

1. Whether or not Bayantel’s real properties in Quezon City are exempt from real property taxes under its legislative franchise; and

2. Whether or not Bayantel is required to exhaust administrative remedies before seeking judicial relief with the trial court.

We shall first address the second issue, the same being procedural in nature.

Petitioners argue that Bayantel had failed to avail itself of the administrative remedies provided for under the LGC, adding that the trial court erred in giving due course to Bayantel’s petition for prohibition. To petitioners, the appeal mechanics under the LGC constitute Bayantel’s plain and speedy remedy in this case.

The Court does not agree.

Petitions for prohibition are governed by the following provision of Rule 65 of the Rules of Court:

SEC. 2. Petition for prohibition. – When the proceedings of any tribunal, … are without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered commanding the respondent to desist from further proceedings in the action or matter specified therein, or otherwise, granting such incidental reliefs as law and justice may require.

With the reality that Bayantel’s real properties were already levied upon on account of its nonpayment of real estate taxes thereon, the Court agrees with Bayantel that an appeal to the LBAA is not a speedy and adequate remedy within the context of the aforequoted Section 2 of Rule 65. This is not to mention of the auction sale of said properties already scheduled on July 30, 2002.

Moreover, one of the recognized exceptions to the exhaustion- of-administrative remedies rule is when, as here, only legal issues are to be resolved. In fact, the Court, cognizant of the nature of the questions presently involved, gave due course to the instant petition. As the Court has said in Ty vs. Trampe:7

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QC vs Bayantelxxx. Although as a rule, administrative remedies must first be exhausted before resort to judicial action can prosper, there is a well-settled exception in cases where the controversy does not involve questions of fact but only of law. xxx.

Lest it be overlooked, an appeal to the LBAA, to be properly considered, required prior payment under protest of the amount of P43,878,208.18, a figure which, in the light of the then prevailing Asian financial crisis, may have been difficult to raise up. Given this reality, an appeal to the LBAA may not be considered as a plain, speedy and adequate remedy. It is thus understandable why Bayantel opted to withdraw its earlier appeal with the LBAA and, instead, filed its petition for prohibition with urgent application for injunctive relief in Civil Case No. Q-02-47292. The remedy availed of by Bayantel under Section 2, Rule 65 of the Rules of Court must be upheld.

This brings the Court to the more weighty question of whether or not Bayantel’s real properties in Quezon City are, under its franchise, exempt from real property tax.

The lower court resolved the issue in the affirmative, basically owing to the phrase "exclusive of this franchise" found in Section 11 of Bayantel’s amended franchise, Rep. Act No. 7633. To petitioners, however, the language of Section 11 of Rep. Act No. 7633 is neither clear nor unequivocal. The elaborate and extensive discussion devoted by the trial court on the meaning and import of said phrase, they add, suggests as much. It is petitioners’ thesis that Bayantel was in no time given any express exemption from the payment of real property tax under its amendatory franchise.

There seems to be no issue as to Bayantel’s exemption from real estate taxes by virtue of the term "exclusive of the franchise" qualifying the phrase "same taxes on its real estate, buildings and personal property," found in Section 14, supra, of its franchise, Rep. Act No. 3259, as originally granted.

The legislative intent expressed in the phrase "exclusive of this franchise" cannot be construed other than distinguishing between two (2) sets of properties, be they real or personal, owned by the franchisee, namely, (a) those actually, directly and exclusively used in its radio or telecommunications business, and (b) those properties which are not so used. It is worthy to note that the properties subject of the present controversy are only those which are admittedly falling under the first category.

To the mind of the Court, Section 14 of Rep. Act No. 3259 effectively works to grant or delegate to local governments of Congress’ inherent power to tax the franchisee’s properties belonging to the second group of properties indicated above, that is, all properties which, "exclusive of this franchise," are not actually and directly used in the pursuit of its franchise. As may be recalled, the taxing power of local governments under both the 1935 and the 1973 Constitutions solely depended upon an enabling law. Absent such enabling law, local government units were without authority to impose and collect taxes on real properties within their respective territorial jurisdictions. While Section 14 of Rep. Act No. 3259 may be validly viewed as an implied delegation of power to tax, the delegation under that provision, as couched, is limited to impositions over properties of the franchisee which are not actually, directly and exclusively used in the pursuit of its franchise. Necessarily, other properties of Bayantel directly used in the pursuit of its business are beyond the pale of the delegated taxing power of local governments. In a very real sense, therefore, real properties of Bayantel, save those exclusive of its franchise, are subject to realty taxes. Ultimately, therefore, the inevitable result was that all realties which are actually, directly and exclusively used in the operation of its franchise are "exempted" from any property tax.

Bayantel’s franchise being national in character, the "exemption" thus granted under Section 14 of Rep. Act No. 3259 applies to all its real or personal properties found anywhere within the Philippine archipelago.

However, with the LGC’s taking effect on January 1, 1992, Bayantel’s "exemption" from real estate taxes for properties of whatever kind located within the Metro Manila area was, by force of Section 234 of the Code, supra, expressly withdrawn. But, not long thereafter, however, or on July 20, 1992, Congress passed Rep. Act No. 7633 amending Bayantel’s original franchise. Worthy of note is that Section 11 of Rep. Act No. 7633 is a virtual reenacment of the tax provision, i.e., Section 14, supra, of Bayantel’s original franchise under Rep. Act No. 3259. Stated otherwise, Section 14 of Rep. Act No. 3259 which was deemed impliedly repealed by Section 234 of the LGC was expressly revived under Section 14 of Rep. Act No. 7633. In concrete terms, the realty tax exemption heretofore enjoyed by Bayantel under its original franchise, but subsequently withdrawn by force of Section 234 of the LGC, has been restored by Section 14 of Rep. Act No. 7633.

Page 21: Municipal Corporations

QC vs BayantelThe Court has taken stock of the fact that by virtue of Section 5, Article X of the 1987 Constitution,8 local governments are empowered to levy taxes. And pursuant to this constitutional empowerment, juxtaposed with Section 2329 of the LGC, the Quezon City government enacted in 1993 its local Revenue Code, imposing real property tax on all real properties found within its territorial jurisdiction. And as earlier stated, the City’s Revenue Code, just like the LGC, expressly withdrew, under Section 230 thereof, supra, all tax exemption privileges in general.

This thus raises the question of whether or not the City’s Revenue Code pursuant to which the city treasurer of Quezon City levied real property taxes against Bayantel’s real properties located within the City effectively withdrew the tax exemption enjoyed by Bayantel under its franchise, as amended.

Bayantel answers the poser in the negative arguing that once again it is only "liable to pay the same taxes, as any other persons or corporations on all its real or personal properties, exclusive of its franchise."

Bayantel’s posture is well-taken. While the system of local government taxation has changed with the onset of the 1987 Constitution, the power of local government units to tax is still limited. As we explained in Mactan Cebu International Airport Authority:10

The power to tax is primarily vested in the Congress; however, in our jurisdiction, it may be exercised by local legislative bodies, no longer merely be virtue of a valid delegation as before, but pursuant to direct authority conferred by Section 5, Article X of the Constitution. Under the latter, the exercise of the power may be subject to such guidelines and limitations as the Congress may provide which, however, must be consistent with the basic policy of local autonomy. (at p. 680; Emphasis supplied.)

Clearly then, while a new slant on the subject of local taxation now prevails in the sense that the former doctrine of local government units’ delegated power to tax had been effectively modified with Article X, Section 5 of the 1987 Constitution now in place, .the basic doctrine on local taxation remains essentially the same. For as the Court stressed in Mactan, "the power to tax is [still] primarily vested in the Congress."

This new perspective is best articulated by Fr. Joaquin G. Bernas, S.J., himself a Commissioner of the 1986 Constitutional Commission which crafted the 1987 Constitution, thus:

What is the effect of Section 5 on the fiscal position of municipal corporations? Section 5 does not change the doctrine that municipal corporations do not possess inherent powers of taxation. What it does is to confer municipal corporations a general power to levy taxes and otherwise create sources of revenue. They no longer have to wait for a statutory grant of these powers. The power of the legislative authority relative to the fiscal powers of local governments has been reduced to the authority to impose limitations on municipal powers. Moreover, these limitations must be "consistent with the basic policy of local autonomy." The important legal effect of Section 5 is thus to reverse the principle that doubts are resolved against municipal corporations. Henceforth, in interpreting statutory provisions on municipal fiscal powers, doubts will be resolved in favor of municipal corporations. It is understood, however, that taxes imposed by local government must be for a public purpose, uniform within a locality, must not be confiscatory, and must be within the jurisdiction of the local unit to pass.11(Emphasis supplied).

In net effect, the controversy presently before the Court involves, at bottom, a clash between the inherent taxing power of the legislature, which necessarily includes the power to exempt, and the local government’s delegated power to tax under the aegis of the 1987 Constitution.

Now to go back to the Quezon City Revenue Code which imposed real estate taxes on all real properties within the city’s territory and removed exemptions theretofore "previously granted to, or presently enjoyed by all persons, whether natural or juridical ….,"12 there can really be no dispute that the power of the Quezon City Government to tax is limited by Section 232 of the LGC which expressly provides that "a province or city or municipality within the Metropolitan Manila Area may levy an annual ad valorem tax on real property such as land, building, machinery, and other improvement not hereinafter specifically exempted." Under this law, the Legislature highlighted its power to thereafter exempt certain realties from the taxing power of local government units. An interpretation denying Congress such power to exempt would reduce the phrase "not hereinafter specifically exempted" as a pure jargon, without meaning whatsoever. Needless to state, such absurd situation is unacceptable.

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QC vs BayantelFor sure, in Philippine Long Distance Telephone Company, Inc. (PLDT) vs. City of Davao,13 this Court has upheld the power of Congress to grant exemptions over the power of local government units to impose taxes. There, the Court wrote:

Indeed, the grant of taxing powers to local government units under the Constitution and the LGC does not affect the power of Congress to grant exemptions to certain persons, pursuant to a declared national policy. The legal effect of the constitutional grant to local governments simply means that in interpreting statutory provisions on municipal taxing powers, doubts must be resolved in favor of municipal corporations. (Emphasis supplied.)

As we see it, then, the issue in this case no longer dwells on whether Congress has the power to exempt Bayantel’s properties from realty taxes by its enactment of Rep. Act No. 7633 which amended Bayantel’s original franchise. The more decisive question turns on whether Congress actually did exempt Bayantel’s properties at all by virtue of Section 11 of Rep. Act No. 7633.

Admittedly, Rep. Act No. 7633 was enacted subsequent to the LGC. Perfectly aware that the LGC has already withdrawn Bayantel’s former exemption from realty taxes, Congress opted to pass Rep. Act No. 7633 using, under Section 11 thereof, exactly the same defining phrase "exclusive of this franchise" which was the basis for Bayantel’s exemption from realty taxes prior to the LGC. In plain language, Section 11 of Rep. Act No. 7633 states that "the grantee, its successors or assigns shall be liable to pay the same taxes on their real estate, buildings and personal property, exclusive of this franchise, as other persons or corporations are now or hereafter may be required by law to pay." The Court views this subsequent piece of legislation as an express and real intention on the part of Congress to once again remove from the LGC’s delegated taxing power, all of the franchisee’s (Bayantel’s) properties that are actually, directly and exclusively used in the pursuit of its franchise.

WHEREFORE, the petition is DENIED.

No pronouncement as to costs.

SO ORDERED.

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Tan vs. Perena

EN BANC

[G.R. No. 138810.  September 29, 2004]

BATANGAS CATV, INC., petitioner, vs. THE COURT OF APPEALS, THE BATANGAS CITY SANGGUNIANG PANLUNGSOD and BATANGAS CITY MAYOR, respondents.

D E C I S I O N

SANDOVAL-GUTIERREZ, J.:

In the late 1940s, John Walson, an appliance dealer in Pennsylvania, suffered a decline in the sale of television (tv) sets because of poor reception of signals in his community.  Troubled, he built an antenna on top of a nearby mountain.  Using coaxial cable lines, he distributed the tv signals from the antenna to the homes of his customers.  Walson’s innovative idea improved his sales and at the same time gave birth to a new telecommunication system -- the Community Antenna Television (CATV) or Cable Television.[1]

This technological breakthrough found its way in our shores and, like in its country of origin, it spawned legal controversies, especially in the field of regulation.  The case at bar is just another occasion to clarify a shady area.  Here, we are tasked to resolve the inquiry -- may a local government unit (LGU) regulate the subscriber rates charged by CATV operators within its territorial jurisdiction?

This is a petition for review on certiorari filed by Batangas CATV, Inc. (petitioner herein) against the Sangguniang Panlungsod and the Mayor of Batangas City (respondents herein) assailing the Court of Appeals (1) Decision[2] dated February 12, 1999 and (2) Resolution[3] dated May 26, 1999, in CA-G.R. CV No. 52361.[4] The Appellate Court reversed and set aside the Judgment [5] dated October 29, 1995 of the Regional Trial Court (RTC), Branch 7, Batangas City in Civil Case No. 4254, [6]holding that neither of the respondents has the power to fix the subscriber rates of CATV operators, such being outside the scope of the LGU’s power.

The antecedent facts are as follows:

On July 28, 1986, respondent Sangguniang Panlungsod enacted Resolution No. 210[7] granting petitioner a permit to construct, install, and operate a CATV system in Batangas City.  Section 8 of the Resolution provides that petitioner is authorized to charge its subscribers the maximum rates specified therein, “provided, however, that any increase of rates shall be subject to the approval of the Sangguniang Panlungsod.”[8]

Sometime in November 1993, petitioner increased its subscriber rates from P88.00 to P180.00 per month.  As a result, respondent Mayor wrote petitioner a letter[9]threatening to cancel its permit unless it secures the approval of respondent Sangguniang Panlungsod, pursuant to Resolution No. 210.

Petitioner then filed with the RTC, Branch 7, Batangas City, a petition for injunction docketed as Civil Case No. 4254.  It alleged that respondent Sangguniang Panlungsod has no authority to regulate the subscriber rates charged by CATV operators because under Executive Order No. 205, the National Telecommunications Commission (NTC) has the sole authority to regulate the CATV operation in the Philippines.

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Tan vs. PerenaOn October 29, 1995, the trial court decided in favor of petitioner, thus:

“WHEREFORE, as prayed for, the defendants, their representatives, agents, deputies or other persons acting on their behalf or under their instructions, are hereby enjoined from canceling plaintiff’s permit to operate a Cable Antenna Television (CATV) system in the City of Batangas or its environs or in any manner, from interfering with the authority and power of the National Telecommunications Commission to grant franchises to operate CATV systems to qualified applicants, and the right of plaintiff in fixing its service rates which needs no prior approval of the Sangguniang Panlungsod of Batangas City.

The counterclaim of the plaintiff is hereby dismissed. No pronouncement as to costs.

IT IS SO ORDERED.”[10]

The trial court held that the enactment of Resolution No. 210 by respondent violates the State’s deregulation policy as set forth by then NTC Commissioner Jose Luis A. Alcuaz in his Memorandum dated August 25, 1989.  Also, it pointed out that the sole agency of the government which can regulate CATV operation is the NTC, and that the LGUs cannot exercise regulatory power over it without appropriate legislation.

Unsatisfied, respondents elevated the case to the Court of Appeals, docketed as CA-G.R. CV No. 52361.

On February 12, 1999, the Appellate Court reversed and set aside the trial court’s Decision, ratiocinating as follows:

“Although the Certificate of Authority to operate a Cable Antenna Television (CATV) System is granted by the National Telecommunications Commission pursuant to Executive Order No. 205, this does not preclude the Sangguniang Panlungsod from regulating the operation of the CATV in their locality under the powers vested upon it by Batas Pambansa Bilang 337, otherwise known as the Local Government Code of 1983.  Section 177 (now Section 457 paragraph 3 (ii) of Republic Act 7160) provides:

‘Section 177. Powers and Duties – The Sangguniang Panlungsod shall:

a) Enact such ordinances as may be necessary to carry into effect and discharge the responsibilities conferred upon it by law, and such as shall be necessary and proper to provide for health and safety, comfort and convenience, maintain peace and order, improve the morals, and promote the prosperity and general welfare of the community and the inhabitants thereof, and the protection of property therein;

x x x

d) Regulate, fix the license fee for, and tax any business or profession being carried on and exercised within the territorial jurisdiction of the city, except travel agencies, tourist guides, tourist transports, hotels, resorts, de luxe restaurants, and tourist inns of international standards which shall remain under the licensing and regulatory power of the Ministry of

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Tan vs. PerenaTourism which shall exercise such authority without infringement on the taxing and regulatory powers of the city government;’

Under cover of the General Welfare Clause as provided in this section, Local Government Units can perform just about any power that will benefit their constituencies.  Thus, local government units can exercise powers that are: (1) expressly granted; (2) necessarily implied from the power that is expressly granted; (3) necessary, appropriate or incidental for its efficient and effective governance; and (4) essential to the promotion of the general welfare of their inhabitants. (Pimentel, The Local Government Code of 1991, p. 46)

Verily, the regulation of businesses in the locality is expressly provided in the Local Government Code.  The fixing of service rates is lawful under the General Welfare Clause.

Resolution No. 210 granting appellee a permit to construct, install and operate a community antenna television (CATV) system in Batangas City as quoted earlier in this decision, authorized the grantee to impose charges which cannot be increased except upon approval of the Sangguniang Bayan.  It further provided that in case of violation by the grantee of the terms and conditions/requirements specifically provided therein, the City shall have the right to withdraw the franchise.

Appellee increased the service rates from EIGHTY EIGHT PESOS (P88.00) to ONE HUNDRED EIGHTY PESOS (P180.00) (Records, p. 25) without the approval of appellant.  Such act breached Resolution No. 210 which gives appellant the right to withdraw the permit granted to appellee.”[11]

Petitioner filed a motion for reconsideration but was denied.[12]

Hence, the instant petition for review on certiorari anchored on the following assignments of error:

“I

THE COURT OF APPEALS ERRED IN HOLDING THAT THE GENERAL WELFARE CLAUSE OF THE LOCAL GOVERNMENT CODE AUTHORIZES RESPONDENT SANGGUNIANG PANLUNGSOD TO EXERCISE THE REGULATORY FUNCTION SOLELY LODGED WITH THE NATIONAL TELECOMMUNICATIONS COMMISSION UNDER EXECUTIVE ORDER NO. 205, INCLUDING THE AUTHORITY TO FIX AND/OR APPROVE THE SERVICE RATES OF CATV OPERATORS; AND

II

THE COURT OF APPEALS ERRED IN REVERSING THE DECISION APPEALED FROM AND DISMISSING PETITIONER’S COMPLAINT.”[13]

Petitioner contends that while Republic Act No. 7160, the Local Government Code of 1991, extends to the LGUs the general power to perform any act that will benefit their constituents, nonetheless, it does not authorize them to regulate the CATV operation.  Pursuant to E.O. No. 205, only the NTC has the authority to regulate the CATV operation, including the fixing of subscriber rates.

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Tan vs. PerenaRespondents counter that the Appellate Court did not commit any reversible error in rendering the

assailed Decision.  First, Resolution No. 210 was enacted pursuant to Section 177(c) and (d) of Batas Pambansa Bilang 337, the Local Government Code of 1983, which authorizes LGUs to regulate businesses.  The term “businesses” necessarily includes the CATV industry.  And second, Resolution No. 210 is in the nature of a contract between petitioner and respondents, it being a grant to the former of a franchise to operate a CATV system.  To hold that E.O. No. 205 amended its terms would violate the constitutional prohibition against impairment of contracts.[14]

The petition is impressed with merit.

Earlier, we posed the question -- may a local government unit (LGU) regulate the subscriber rates charged by CATV operators within its territorial jurisdiction?  A review of pertinent laws and jurisprudence yields a negative answer.

President Ferdinand E. Marcos was the first one to place the CATV industry under the regulatory power of the national government. [15] On June 11, 1978, he issuedPresidential Decree (P.D.) No. 1512[16] establishing a monopoly of the industry by granting Sining Makulay, Inc., an exclusive franchise to operate CATV system in any place within the Philippines. Accordingly, it terminated all franchises, permits or certificates for the operation of CATV system previously granted by local governments or by any instrumentality or agency of the national government. [17] Likewise, it prescribed the subscriber rates to be charged by Sining Makulay, Inc.to its customers.[18]

On July 21, 1979, President Marcos issued Letter of Instruction (LOI) No. 894 vesting upon the Chairman of the Board of Communications direct supervision over the operations of Sining Makulay, Inc.  Three days after, he issued E.O. No. 546[19] integrating the Board of Communications[20] and the Telecommunications Control Bureau[21] to form a single entity to be known as the “National Telecommunications Commission.”  Two of its assigned functions are:

“a. Issue Certificate of Public Convenience for the operation of communications utilities and services, radio communications systems, wire or wireless telephone or telegraph systems, radio and television broadcasting system and other similar public utilities;

b. Establish, prescribe and regulate areas of operation of particular operators of public service communications; and determine and prescribe charges or rates pertinent to the operation of such public utility facilities and services except in cases where charges or rates are established by international bodies or associations of which the Philippines is a participating member or by bodies recognized by the Philippine Government as the proper arbiter of such charges or rates;”

Although Sining Makulay Inc.’s exclusive franchise had a life term of 25 years, it was cut short by the advent of the 1986 Revolution.  Upon President Corazon C. Aquino’s assumption of power, she issued E.O. No. 205[22] opening the CATV industry to all citizens of the Philippines.  It mandated the NTC to grant Certificates of Authority to CATV operators and to issue the necessary implementing rules and regulations.

On September 9, 1997, President Fidel V. Ramos issued E.O. No. 436[23] prescribing policy guidelines to govern CATV operation in the Philippines. Cast in more definitive terms, it restated the NTC’s regulatory powers over CATV operations, thus:

“SECTION 2.  The regulation and supervision of the cable television industry in the Philippines shall remain vested solely with the National Telecommunications Commission (NTC).

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Tan vs. PerenaSECTION 3. Only persons, associations, partnerships, corporations or cooperatives, granted a Provisional Authority or Certificate of Authority by the Commission may install, operate and maintain a cable television system or render cable television service within a service area.”

Clearly, it has been more than two decades now since our national government, through the NTC, assumed regulatory power over the CATV industry.  Changes in the political arena did not alter the trend.  Instead, subsequent presidential issuances further reinforced the NTC’s power. Significantly, President Marcos and President Aquino, in the exercise of their legislative power, issued P.D. No. 1512, E.O. No. 546 and E.O. No. 205.  Hence, they have the force and effect of statutes or laws passed by Congress.[24] That the regulatory power stays with the NTC is also clear from President Ramos’ E.O. No. 436 mandating that the regulation and supervision of the CATV industry shall remain vested “solely” in the NTC. Black’s Law Dictionary defines “sole” as “without another or others.” [25] The logical conclusion, therefore, is that in light of the above laws and E.O. No. 436, the NTC exercises regulatory power over CATV operators to the exclusion of other bodies.

But, lest we be misunderstood, nothing herein should be interpreted as to strip LGUs of their general power to prescribe regulations under the general welfare clause of the Local Government Code.  It must be emphasized that when E.O. No. 436 decrees that the “regulatory power” shall be vested “solely” in the NTC, it pertains to the “regulatory power” over those matters which are peculiarly within the NTC’s competence, such as, the: (1) determination of rates, (2) issuance of “certificates of authority, (3)establishment of areas of operation, (4) examination and assessment of the legal, technical and financial qualifications of applicant operators, (5) granting of permits for the use of frequencies, (6) regulation of ownership and operation, (7) adjudication of issues arising from its functions, and (8) other similar matters.[26] Within these areas, the NTC reigns supreme as it possesses the exclusive power to regulate -- a power comprising varied acts, such as “to fix, establish, or control; to adjust by rule, method or established mode; to direct by rule or restriction; or to subject to governing principles or laws.”[27]

Coincidentally, respondents justify their exercise of regulatory power over petitioner’s CATV operation under the general welfare clause of the Local Government Code of 1983.  The Court of Appeals sustained their stance.

There is no dispute that respondent Sangguniang Panlungsod, like other local legislative bodies, has been empowered to enact ordinances and approve resolutions under the general welfare clause of B.P. Blg. 337, the Local Government Code of 1983.  That it continues to posses such power is clear under the new law, R.A. No. 7160 (the Local Government Code of 1991).  Section 16 thereof provides:

“SECTION 16. General Welfare. – Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare.  Within their respective territorial jurisdictions, local government units shall ensure and support, among others, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant, scientific and technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants.”

In addition, Section 458 of the same Code specifically mandates:

Page 28: Municipal Corporations

Tan vs. Perena“SECTION 458.       Powers, Duties, Functions and Compensation. — (a) The Sangguniang Panlungsod, as the legislative body of the city, shall enact ordinances, approve resolutions and appropriate funds for the general welfare of the city and its inhabitants pursuant to Section 16 of this Code and in the proper exercise  of the corporate powers of the city as provided for under Section 22 of this Code, x x x:”

The general welfare clause is the delegation in statutory form of the police power of the State to LGUs.[28] Through this, LGUs may prescribe regulations to protect the lives, health, and property of their constituents and maintain peace and order within their respective territorial jurisdictions.  Accordingly, we have upheld enactments providing, for instance, the regulation of gambling, [29] the occupation of rig drivers,[30] the installation and operation of pinball machines,[31] the maintenance and operation of cockpits,[32] the exhumation and transfer of corpses from public burial grounds,[33] and the operation of hotels, motels, and lodging houses [34] as valid exercises by local legislatures of the police power under the general welfare clause.

Like any other enterprise, CATV operation maybe regulated by LGUs under the general welfare clause.  This is primarily because the CATV system commits the indiscretion of crossing public properties.  (It uses public properties in order to reach subscribers.)  The physical realities of constructing CATV system – the use of public streets, rights of ways, the founding of structures, and the parceling of large regions – allow an LGU a certain degree of regulation over CATV operators.[35] This is the same regulation that it exercises over all private enterprises within its territory.

But, while we recognize the LGUs’ power under the general welfare clause, we cannot sustain Resolution No. 210.  We are convinced that respondents strayed from the well recognized limits of its power.  The flaws in Resolution No. 210 are: (1) it violates the mandate of existing laws and (2) it violates the State’s deregulation policy over the CATV industry.

I.

Resolution No. 210 is an enactment of an LGU acting only as agent of the national legislature. Necessarily, its act must reflect and conform to the will of its principal.  To test its validity, we must apply the particular requisites of a valid ordinance as laid down by the accepted principles governing municipal corporations. [36]

Speaking for the Court in the leading case of United States vs. Abendan,[37] Justice Moreland said: “An ordinance enacted by virtue of the general welfare clause is valid, unless it contravenes the fundamental law of the Philippine Islands, or an Act of the Philippine Legislature, or unless it is against public policy, or is unreasonable, oppressive, partial, discriminating, or in derogation of common right.”  In De la Cruz vs. Paraz,[38] we laid the general rule “that ordinances passed by virtue of the implied power found in the general welfare clause must be reasonable, consonant with the general powers and purposes of the corporation, and not inconsistent with the laws or policy of the State.”

The apparent defect in Resolution No. 210 is that it contravenes E.O. No. 205 and E.O. No. 436 insofar as it permits respondent Sangguniang Panlungsod to usurp a power exclusively vested in the NTC, i.e., the power to fix the subscriber rates charged by CATV operators.  As earlier discussed, the fixing of subscriber rates is definitely one of the matters within the NTC’s exclusive domain.

In this regard, it is appropriate to stress that where the state legislature has made provision for the regulation of conduct, it has manifested its intention that the subject matter shall be fully covered by the statute, and that a municipality, under its general powers, cannot regulate the same conduct. [39] In Keller vs. State,[40] it was held that:“Where there is no express power in the charter of a municipality authorizing it to adopt ordinances regulating certain matters which are specifically covered by a general statute, a municipal ordinance, insofar as it attempts to regulate the subject which is

Page 29: Municipal Corporations

Tan vs. Perenacompletely covered by a general statute of the legislature, may be rendered invalid.  x x x  Where the subject is of statewide concern, and the legislature has appropriated the field and declared the rule, its declaration is binding throughout the State.”  A reason advanced for this view is that such ordinances are in excess of the powers granted to the municipal corporation.[41]

Since E.O. No. 205, a general law, mandates that the regulation of CATV operations shall be exercised by the NTC, an LGU cannot enact an ordinance or approve a resolution in violation of the said law.

It is a fundamental principle that municipal ordinances are inferior in status and subordinate to the laws of the state.  An ordinance in conflict with a state law of general character and statewide application is universally held to be invalid.[42] The principle is frequently expressed in the declaration that municipal authorities, under a general grant of power, cannot adopt ordinances which infringe the spirit of a state law or repugnant to the general policy of the state.[43] In every power to pass ordinances given to a municipality, there is an implied restriction that the ordinances shall be consistent with the general law.[44] In the language of Justice Isagani Cruz (ret.), this Court, inMagtajas vs. Pryce Properties Corp., Inc.,[45] ruled that:

“The rationale of the requirement that the ordinances should not contravene a statute is obvious. Municipal governments are only agents of the national government. Local councils exercise only delegated legislative powers conferred on them by Congress as the national lawmaking body. The delegate cannot be superior to the principal or exercise powers higher than those of the latter. It is a heresy to suggest that the local government units can undo the acts of Congress, from which they have derived their power in the first place, and negate by mere ordinance the mandate of the statute.

‘Municipal corporations owe their origin to, and derive their powers and rights wholly from the legislature. It breathes into them the breath of life, without which they cannot exist. As it creates, so it may destroy. As it may destroy, it may abridge and control. Unless there is some constitutional limitation on the right, the legislature might, by a single act, and if we can suppose it capable of so great a folly and so great a wrong, sweep from existence all of the municipal corporations in the State, and the corporation could not prevent it. We know of no limitation on the right so far as to the corporation themselves are concerned. They are, so to phrase it, the mere tenants at will of the legislature.’

This basic relationship between the national legislature and the local government units has not been enfeebled by the new provisions in the Constitution strengthening the policy of local autonomy. Without meaning to detract from that policy, we here confirm that Congress retains control of the local government units although in significantly reduced degree now than under our previous Constitutions.  The power to create still includes the power to destroy.  The power to grant still includes the power to withhold or recall. True, there are certain notable innovations in the Constitution, like the direct conferment on the local government units of the power to tax, which cannot now be withdrawn by mere statute.  By and large, however, the national legislature is still the principal of the local government units, which cannot defy its will or modify or violate it.”

Respondents have an ingenious retort against the above disquisition.  Their theory is that the regulatory power of the LGUs is granted by R.A. No. 7160  (the Local Government Code of 1991), a handiwork of the national lawmaking authority.  They contend that R.A. No. 7160 repealed E.O. No. 205 (issued by President Aquino).  Respondents’ argument espouses a bad precedent.  To say that LGUs

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Tan vs. Perenaexercise the same regulatory power over matters which are peculiarly within the NTC’s competence is to promote a scenario of LGUs and the NTC locked in constant clash over the appropriate regulatory measure on the same subject matter.  LGUs must recognize that technical matters concerning CATV operation are within the exclusive regulatory power of the NTC.

At any rate, we find no basis to conclude that R.A. No. 7160 repealed E.O. No. 205, either expressly or impliedly.  It is noteworthy that R.A. No. 7160 repealing clause, which painstakingly mentions the specific laws or the parts thereof which are repealed, does not include E.O. No. 205, thus:

“SECTION 534.       Repealing Clause. — (a) Batas Pambansa Blg. 337, otherwise known as the Local Government Code." Executive Order No. 112 (1987), and Executive Order No. 319 (1988) are hereby repealed.

(b)     Presidential Decree Nos. 684, 1191, 1508 and such other decrees, orders, instructions, memoranda and issuances related to or concerning the barangay are hereby repealed.

(c)     The provisions of Sections 2, 3, and 4 of Republic Act No. 1939 regarding hospital fund; Section 3, a (3) and b (2) of Republic Act. No. 5447 regarding the Special Education Fund; Presidential Decree No. 144 as amended by Presidential Decree Nos. 559 and 1741; Presidential Decree No. 231 as amended; Presidential Decree No. 436 as amended by Presidential Decree No. 558; and Presidential Decree Nos. 381, 436, 464, 477, 526, 632, 752, and 1136 are hereby repealed and rendered of no force and effect.

(d)     Presidential Decree No. 1594 is hereby repealed insofar as it governs locally-funded projects.

(e)     The following provisions are hereby repealed or amended insofar as they are inconsistent with the provisions of this Code: Sections 2, 16, and 29 of Presidential Decree No. 704; Section 12 of Presidential Decree No. 87, as amended; Sections 52, 53, 66, 67, 68, 69, 70, 71, 72, 73, and 74 of Presidential Decree No. 463, as amended; and Section 16 of Presidential Decree No. 972, as amended, and

(f)      All general and special laws, acts, city charters, decrees, executive orders, proclamations and administrative regulations, or part or parts thereof which are inconsistent with any of the provisions of this Code are hereby repealed or modified accordingly.”

Neither is there an indication that E.O. No. 205 was impliedly repealed by R.A. No. 7160.  It is a settled rule that implied repeals are not lightly presumed in the absence of a clear and unmistakable showing of such intentions.  In Mecano vs. Commission on Audit,[46] we ruled:

“Repeal by implication proceeds on the premise that where a statute of later date clearly reveals an intention on the part of the legislature to abrogate a prior act on the subject, that intention must be given effect.  Hence, before there can be a repeal, there must be a clear showing on the part of the lawmaker that the intent in enacting the new law was to abrogate the old one. The intention to repeal must be clear and manifest; otherwise, at least, as a general rule, the later act is to be construed as a continuation of, and not a substitute for, the first act and will continue so far as the two acts are the same from the time of the first enactment.”

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Tan vs. PerenaAs previously stated, E.O. No. 436 (issued by President Ramos) vests upon the NTC the power to

regulate the CATV operation in this country. So also Memorandum Circular No. 8-9-95, the Implementing Rules and Regulations of R.A. No. 7925 (the “Public Telecommunications Policy Act of the Philippines”).  This shows that the NTC’s regulatory power over CATV operation is continuously recognized.

It is a canon of legal hermeneutics that instead of pitting one statute against another in an inevitably destructive confrontation, courts must exert every effort to reconcile them, remembering that both laws deserve a becoming respect as the handiwork of coordinate branches of the government. [47] On the assumption of a conflict between E.O. No. 205 and R.A. No. 7160, the proper action is not to uphold one and annul the other but to give effect to both by harmonizing them if possible.  This recourse finds application here.  Thus, we hold that the NTC, under E.O. No. 205, has exclusive jurisdiction over matters affecting CATV operation, including specifically the fixing of subscriber rates, but nothing herein precludes LGUs from exercising its general power, under R.A. No. 7160, to prescribe regulations to promote the health, morals, peace, education, good order or safety and general welfare of their constituents.  In effect, both laws become equally effective and mutually complementary.

The grant of regulatory power to the NTC is easily understandable.  CATV system is not a mere local concern.  The complexities that characterize this new technology demand that it be regulated by a specialized agency.  This is particularly true in the area of rate-fixing.  Rate fixing involves a series of technical operations.[48] Consequently, on the hands of the regulatory body lies the ample discretion in the choice of such rational processes as might be appropriate to the solution of its highly complicated and technical problems.  Considering that the CATV industry is so technical a field, we believe that the NTC, a specialized agency, is in a better position than the LGU, to regulate it.  Notably, in United States vs. Southwestern Cable Co.,[49] the US Supreme Court affirmed the Federal Communications Commission’s (FCC’s) jurisdiction over CATV operation. The Court held that the FCC’s authority over cable systems assures the preservation of the local broadcast service and an equitable distribution of broadcast services among the various regions of the country.

II.

Resolution No. 210 violated the State’s deregulation policy.

Deregulation is the reduction of government regulation of business to permit freer markets and competition.[50] Oftentimes, the State, through its regulatory agencies, carries out a policy of deregulation to attain certain objectives or to address certain problems.  In the field of telecommunications, it is recognized that many areas in the Philippines are still “unserved” or “underserved.”  Thus, to encourage private sectors to venture in this field and be partners of the government in stimulating the growth and development of telecommunications, the State promoted the policy of deregulation.

In the United States, the country where CATV originated, the Congress observed, when it adopted the Telecommunications Act of 1996, that there was a need to provide a pro-competitive, deregulatory national policy framework designed to accelerate rapidly private sector deployment of advanced telecommunications and information technologies and services to all Americans by opening all telecommunications markets to competition.  The FCC has adopted regulations to implement the requirements of the 1996 Act and the intent of the Congress.

Our country follows the same policy.  The fifth Whereas Clause of E.O. No. 436 states:

“WHEREAS, professionalism and self-regulation among existing operators, through a nationally recognized cable television operator’s association, have enhanced the growth of the cable television industry and must therefore be maintained along with minimal reasonable government regulations;”

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Tan vs. PerenaThis policy reaffirms the NTC’s mandate set forth in the Memorandum dated August 25, 1989 of

Commissioner Jose Luis A. Alcuaz, to wit:

“In line with the purpose and objective of MC 4-08-88, Cable Television System or Community Antenna Television (CATV) is made part of the broadcast media to promote the orderly growth of the Cable Television Industry it being in its developing stage.  Being part of the Broadcast Media, the service rates of CATV are likewise considered deregulated in accordance with MC 06-2-81 dated 25 February 1981, the implementing guidelines for the authorization and operation of Radio and Television Broadcasting stations/systems.

Further, the Commission will issue Provisional Authority to existing CATV operators to authorize their operations for a period of ninety (90) days until such time that the Commission can issue the regular Certificate of Authority.”

When the State declared a policy of deregulation, the LGUs are bound to follow.  To rule otherwise is to render the State’s policy ineffective.  Being mere creatures of the State, LGUs cannot defeat national policies through enactments of contrary measures.  Verily, in the case at bar, petitioner may increase its subscriber rates without respondents’ approval.

At this juncture, it bears emphasizing that municipal corporations are bodies politic and corporate, created not only as local units of local self-government, but as governmental agencies of the state. [51] The legislature, by establishing a municipal corporation, does not divest the State of any of its sovereignty; absolve itself from its right and duty to administer the public affairs of the entire state; or divest itself of any power over the inhabitants of the district which it possesses before the charter was granted. [52]

Respondents likewise argue that E.O. No. 205 violates the constitutional prohibition against impairment of contracts, Resolution No. 210 of Batangas CitySangguniang Panlungsod being a grant of franchise to petitioner.

We are not convinced.

There is no law specifically authorizing the LGUs to grant franchises to operate CATV system.  Whatever authority the LGUs had before, the same had been withdrawn when President Marcos issued P.D. No. 1512 “terminating all franchises, permits or certificates for the operation of CATV system previously granted by local governments.” Today, pursuant to Section 3 of E.O. No. 436, “only persons, associations, partnerships, corporations or cooperatives granted a Provisional Authority or Certificate of Authority by the NTC may install, operate and maintain a cable television system or render cable television service within a service area.” It is clear that in the absence of constitutional or legislative authorization, municipalities have no power to grant franchises.[53] Consequently, the protection of the constitutional provision as to impairment of the obligation of a contract does not extend to privileges, franchises and grants given by a municipality in excess of its powers, or ultra vires.[54]

One last word.  The devolution of powers to the LGUs, pursuant to the Constitutional mandate of ensuring their autonomy, has bred jurisdictional tension between said LGUs and the State.  LGUs must be reminded that they merely form part of the whole.  Thus, when the Drafters of the 1987 Constitution enunciated the policy of ensuring the autonomy of local governments, [55] it was never their intention to create an imperium in imperio and install an intra-sovereign political subdivision independent of a single sovereign state.

Page 33: Municipal Corporations

Tan vs. PerenaWHEREFORE, the petition is GRANTED.  The assailed Decision of the Court of Appeals dated

February 12, 1999 as well as its Resolution dated May 26, 1999 in CA-G.R. CV No. 52461, are hereby REVERSED.  The RTC Decision in Civil Case No. 4254 is AFFIRMED.

No pronouncement as to costs.

SO ORDERED.

Bantangas CATV vs. C.A.BATANGAS CATV, INC. vs. THE COURT OF APPEALS, THE BATANGAS CITY SANGGUNIANG PANLUNGSOD and BATANGAS CITY MAYOR [G.R. No. 138810. September 29, 2004]

FACTS: On July 28, 1986, respondent Sangguniang Panlungsod enacted Resolution No. 210 granting petitioner a permit to construct, install, and operate a CATV system in Batangas City. Section 8 of the Resolution provides that petitioner is authorized to charge its subscribers the maximum rates specified therein, “provided, however, that any increase of rates shall be subject to the approval of the Sangguniang Panlungsod.

Sometime in November 1993, petitioner increased its subscriber rates from P88.00 to P180.00 per month. As a result, respondent Mayor wrote petitioner a letter threatening to cancel its permit unless it secures the approval of respondent Sangguniang Panlungsod, pursuant to Resolution No. 210.

Petitioner then filed with the RTC, Branch 7, Batangas City, a petition for injunction alleging that respondent Sangguniang Panlungsod has no authority to regulate the subscriber rates charged by CATV operators because under Executive Order No. 205, the National Telecommunications Commission (NTC) has the sole authority to regulate the CATV operation in the Philippines.

ISSUE : may a local government unit (LGU) regulate the subscriber rates charged by CATV operators within its territorial jurisdiction? 

HELD: No.

x x x

The logical conclusion, therefore, is that in light of the above laws and E.O. No. 436, the NTC exercises regulatory power over CATV operators to the exclusion of other bodies.

x x x

Like any other enterprise, CATV operation maybe regulated by LGUs under the general welfare clause. This is primarily because the CATV system commits the indiscretion of crossing public properties. (It uses public properties in order to reach subscribers.) The physical realities of constructing CATV system – the use of public streets, rights of ways, the founding of structures, and the parceling of large regions – allow an LGU a certain degree of regulation over CATV operators.

x x x

But, while we recognize the LGUs’ power under the general welfare clause, we cannot sustain Resolution No. 210. We are convinced that respondents strayed from the well recognized limits of its power. The flaws in Resolution No. 210 are: (1) it violates the mandate of existing laws and (2) it violates the State’s deregulation policy over the CATV industry.

LGUs must recognize that technical matters concerning CATV operation are within the exclusive regulatory power of the NTC.

Page 34: Municipal Corporations

Tan vs. Perena

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 149743             February 18, 2005

LEONARDO TAN, ROBERT UY and LAMBERTO TE, petitioners, vs.SOCORRO Y. PEREÑA, Respondent.

D E C I S I O N

TINGA, J.:

The resolution of the present petition effectively settles the question of how many cockpits may be allowed to operate in a city or municipality.

There are two competing values of high order that come to fore in this case—the traditional power of the national government to enact police power measures, on one hand, and the vague principle of local autonomy now enshrined in the Constitution on the other. The facts are simple, but may be best appreciated taking into account the legal milieu which frames them.

In 1974, Presidential Decree (P.D.) No. 449, otherwise known as the Cockfighting Law of 1974, was enacted. Section 5(b) of the Decree provided for limits on the number of cockpits that may be established in cities and municipalities in the following manner:

Section 5. Cockpits and Cockfighting in General. –

(b) Establishment of Cockpits. – Only one cockpit shall be allowed in each city or municipality, except that in cities or municipalities with a population of over one hundred thousand, two cockpits may be established, maintained and operated.

With the enactment of the Local Government Code of 1991,1 the municipal sangguniang bayan were empowered, "[a]ny law to the contrary notwithstanding," to "authorize and license the establishment, operation and maintenance of cockpits, and regulate cockfighting and commercial breeding of gamecocks."2

In 1993, the Sangguniang Bayan of the municipality of Daanbantayan,3 Cebu Province, enacted Municipal Ordinance No. 6 (Ordinance No. 6), Series of 1993, which served as the Revised Omnibus Ordinance prescribing and promulgating the rules and regulations governing cockpit operations in Daanbantayan.4 Section 5 thereof, relative to the number of cockpits allowed in the municipality, stated:

Section 5. There shall be allowed to operate in the Municipality of Daanbantayan, Province of Cebu, not more than its equal number of cockpits based upon the population provided for in PD 449, provided however, that this specific section can be amended for purposes of establishing additional cockpits, if the Municipal population so warrants.5

Shortly thereafter, the Sangguniang Bayan passed an amendatory ordinance, Municipal Ordinance No. 7 (Ordinance No. 7), Series of 1993, which amended the aforequoted Section 5 to now read as follows:

Section 5. Establishment of Cockpit. There shall be allowed to operate in the Municipality of Daanbantayan, Province of Cebu, not more than three (3) cockpits.6

Page 35: Municipal Corporations

Tan vs. PerenaOn 8 November 1995, petitioner Leonardo Tan (Tan) applied with the Municipal Gamefowl Commission for the issuance of a permit/license to establish and operate a cockpit in Sitio Combado, Bagay, in Daanbantayan. At the time of his application, there was already another cockpit in operation in Daanbantayan, operated by respondent Socorro Y. Pereña (Pereña), who was the duly franchised and licensed cockpit operator in the municipality since the 1970s. Pereña’s franchise, per records, was valid until 2002.7

The Municipal Gamefowl Commission favorably recommended to the mayor of Daanbantayan, petitioner Lamberto Te (Te), that a permit be issued to Tan. On 20 January 1996, Te issued a mayor’s permit allowing Tan "to establish/operate/conduct" the business of a cockpit in Combado, Bagay, Daanbantayan, Cebu for the period from 20 January 1996 to 31 December 1996.8

This act of the mayor served as cause for Pereña to file a Complaint for damages with a prayer for injunction against Tan, Te, and Roberto Uy, the latter allegedly an agent of Tan.9 Pereña alleged that there was no lawful basis for the establishment of a second cockpit. She claimed that Tan conducted his cockpit fights not in Combado, but in Malingin, at a site less than five kilometers away from her own cockpit. She insisted that the unlawful operation of Tan’s cockpit has caused injury to her own legitimate business, and demanded damages of at least Ten Thousand Pesos (P10,000.00) per month as actual damages, One Hundred Fifty Thousand Pesos (P150,000.00) as moral damages, and Fifty Thousand Pesos (P50,000.00) as exemplary damages. Pereña also prayed that the permit issued by Te in favor of Tan be declared as null and void, and that a permanent writ of injunction be issued against Te and Tan preventing Tan from conducting cockfights within the municipality and Te from issuing any authority for Tan to pursue such activity.10

The case was heard by the Regional Trial Court (RTC),11 Branch 61 of Bogo, Cebu, which initially granted a writ of preliminary injunction.12 During trial, herein petitioners asserted that under the Local Government Code of 1991, the sangguniang bayan of each municipality now had the power and authority to grant franchises and enact ordinances authorizing the establishment, licensing, operation and maintenance of cockpits.13 By virtue of such authority, the Sangguniang Bayan of Daanbantayan promulgated Ordinance Nos. 6 and 7. On the other hand, Pereña claimed that the amendment authorizing the operation of not more than three (3) cockpits in Daanbantayan violated Section 5(b) of the Cockfighting Law of 1974, which allowed for only one cockpit in a municipality with a population as Daanbantayan.14

In a Decision dated 10 March 1997, the RTC dismissed the complaint. The court observed that Section 5 of Ordinance No. 6, prior to its amendment, was by specific provision, an implementation of the Cockfighting Law.15Yet according to the RTC, questions could be raised as to the efficacy of the subsequent amendment under Ordinance No. 7, since under the old Section 5, an amendment allowing additional cockpits could be had only "if the municipal population so warrants."16 While the RTC seemed to doubt whether this condition had actually been fulfilled, it nonetheless declared that since the case was only for damages, "the [RTC] cannot grant more relief than that prayed for."17 It ruled that there was no evidence, testimonial or documentary, to show that plaintiff had actually suffered damages. Neither was there evidence that Te, by issuing the permit to Tan, had acted in bad faith, since such issuance was pursuant to municipal ordinances that nonetheless remained in force.18 Finally, the RTC noted that the assailed permit had expired on 31 December 1996, and there was no showing that it had been renewed.19

Pereña filed a Motion for Reconsideration which was denied in an Order dated 24 February 1998. In this Order, the RTC categorically stated that Ordinance Nos. 6 and 7 were "valid and legal for all intents and purpose[s]."20The RTC also noted that the Sangguniang Bayan had also promulgated Resolution No. 78-96, conferring on Tan a franchise to operate a cockpit for a period of ten (10) years from February 1996 to 2006.21 This Resolution was likewise affirmed as valid by the RTC. The RTC noted that while the ordinances seemed to be in conflict with the Cockfighting Law, any doubt in interpretation should be resolved in favor of the grant of more power to the local government unit, following the principles of devolution under the Local Government Code.22

The Decision and Order of the RTC were assailed by Pereña on an appeal with the Court of Appeals which on 21 May 2001, rendered the Decision now assailed.23 The perspective from which the Court of Appeals viewed the issue was markedly different from that adopted by the RTC. Its analysis of the Local Government Code, particularly Section 447(a)(3)(V), was that the provision vesting unto the sangguniang bayan the power to authorize and license the establishment of cockpits did not do away with the Cockfighting Law, as these two laws are not necessarily inconsistent with each other. What the provision of the Local Government Code did, according to the Court of Appeals, was to transfer to the sangguniang bayan powers that were previously conferred on the Municipal Gamefowl Commission.24

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Tan vs. PerenaGiven these premises, the appellate court declared as follows:

Ordinance No. 7 should [be] held invalid for allowing, in unconditional terms, the operation of "not more than three cockpits in Daan Bantayan" (sic), clearly dispensing with the standard set forth in PD 449. However, this issue appears to have been mooted by the expiration of the Mayor’s Permit granted to the defendant which has not been renewed.25

As to the question of damages, the Court of Appeals agreed with the findings of the RTC that Pereña was not entitled to damages. Thus, it affirmed the previous ruling denying the claim for damages. However, the Court of Appeals modified the RTC’s Decision in that it now ordered that Tan be enjoined from operating a cockpit and conducting any cockfights within Daanbantayan.26

Thus, the present Petition for Review on Certiorari.

Petitioners present two legal questions for determination: whether the Local Government Code has rendered inoperative the Cockfighting Law; and whether the validity of a municipal ordinance may be determined in an action for damages which does not even contain a prayer to declare the ordinance invalid.27 As the denial of the prayer for damages by the lower court is not put in issue before this Court, it shall not be passed upon on review.

The first question raised is particularly interesting, and any definitive resolution on that point would have obvious ramifications not only to Daanbantayan, but all other municipalities and cities. However, we must first determine the proper scope of judicial inquiry that we could engage in, given the nature of the initiatory complaint and the rulings rendered thereupon, the exact point raised in the second question.

Petitioners claim that the Court of Appeals, in declaring Ordinance No. 7 as invalid, embarked on an unwarranted collateral attack on the validity of a municipal ordinance.28 Pereña’s complaint, which was for damages with preliminary injunction, did not pray for the nullity of Ordinance No. 7. The Municipality of Daanbantayan as a local government unit was not made a party to the case, nor did any legal counsel on its behalf enter any appearance. Neither was the Office of the Solicitor General given any notice of the case.29

These concerns are not trivial.30 Yet, we must point out that the Court of Appeals did not expressly nullify Ordinance No. 7, or any ordinance for that matter. What the appellate court did was to say that Ordinance No. 7"should therefore be held invalid" for being in violation of the Cockfighting Law.31 In the next breath though, the Court of Appeals backtracked, saying that "this issue appears to have been mooted by the expiration of the Mayor’s Permit granted" to Tan.32

But our curiosity is aroused by the dispositive portion of the assailed Decision, wherein the Court of Appeals enjoined Tan "from operating a cockpit and conducting any cockfights within" Daanbantayan.33 Absent the invalidity of Ordinance No. 7, there would be no basis for this injunction. After all, any future operation of a cockpit by Tan in Daanbantayan, assuming all other requisites are complied with, would be validly authorized should Ordinance No. 7 subsist.

So it seems, for all intents and purposes, that the Court of Appeals did deem Ordinance No. 7 a nullity. Through such resort, did the appellate court in effect allow a collateral attack on the validity of an ordinance through an action for damages, as the petitioners argue?

The initiatory Complaint filed by Pereña deserves close scrutiny. Immediately, it can be seen that it is not only an action for damages, but also one for injunction. An action for injunction will require judicial determination whether there exists a right in esse which is to be protected, and if there is an act constituting a violation of such right against which injunction is sought. At the same time, the mere fact of injury alone does not give rise to a right to recover damages. To warrant the recovery of damages, there must be both a right of action for a legal wrong inflicted by the defendant, and damage resulting to the plaintiff therefrom. In other words, in order that the law will give redress for an act causing damage, there must be damnum et injuria¾that act must be not only hurtful, but wrongful.34

Indubitably, the determination of whether injunction or damages avail in this case requires the ascertainment of whether a second cockpit may be legally allowed in Daanbantayan. If this is permissible, Pereña would not be entitled either to injunctive relief or damages.

Page 37: Municipal Corporations

Tan vs. PerenaMoreover, an examination of the specific allegations in the Complaint reveals that Pereña therein puts into question the legal basis for allowing Tan to operate another cockpit in Daanbantayan. She asserted that "there is no lawful basis for the establishment of a second cockpit considering the small population of [Daanbantayan],"35 a claim which alludes to Section 5(b) of the Cockfighting Law which prohibits the establishment of a second cockpit in municipalities of less than ten thousand (10,000) in population. Pereña likewise assails the validity of the permit issued to Tan and prays for its annulment, and also seeks that Te be enjoined from issuing any special permit not only to Tan, but also to "any other person outside of a duly licensed cockpit in Daanbantayan, Cebu."36

It would have been preferable had Pereña expressly sought the annulment of Ordinance No. 7. Yet it is apparent from her Complaint that she sufficiently alleges that there is no legal basis for the establishment of a second cockpit. More importantly, the petitioners themselves raised the valid effect of Ordinance No. 7 at the heart of their defense against the complaint, as adverted to in their Answer.37 The averment in the Answer that Ordinance No. 7 is valid can be considered as an affirmative defense, as it is the allegation of a new matter which, while hypothetically admitting the material allegations in the complaint, would nevertheless bar recovery.38 Clearly then, the validity of Ordinance No. 7 became a justiciable matter for the RTC, and indeed Pereña squarely raised the argument during trial that said ordinance violated the Cockfighting Law.39

1awphi1.nét

Moreover, the assailed rulings of the RTC, its Decision and subsequent Order denying Pereña’s Motion for Reconsideration, both discuss the validity of Ordinance No. 7. In the Decision, the RTC evaded making a categorical ruling on the ordinance’s validity because the case was "only for damages, [thus the RTC could] not grant more relief than that prayed for." This reasoning is unjustified, considering that Pereña also prayed for an injunction, as well as for the annulment of Tan’s permit. The resolution of these two questions could very well hinge on the validity of Ordinance No. 7.

Still, in the Order denying Pereña’s Motion for Reconsideration, the RTC felt less inhibited and promptly declared as valid not only Ordinance No. 7, but also Resolution No. 78-96 of the Sangguniang Bayan dated 23 February 1996, which conferred on Tan a franchise to operate a cockpit from 1996 to 2006.40 In the Order, the RTC ruled that while Ordinance No. 7 was in apparent conflict with the Cockfighting Law, the ordinance was justified under Section 447(a)(3)(v) of the Local Government Code.

This express affirmation of the validity of Ordinance No. 7 by the RTC was the first assigned error in Pereña’s appeal to the Court of Appeals.41 In their Appellee’s Brief before the appellate court, the petitioners likewise argued that Ordinance No. 7 was valid and that the Cockfighting Law was repealed by the Local Government Code.42 On the basis of these arguments, the Court of Appeals rendered its assailed Decision, including its ruling that the Section 5(b) of the Cockfighting Law remains in effect notwithstanding the enactment of the Local Government Code.

Indubitably, the question on the validity of Ordinance No. 7 in view of the continuing efficacy of Section 5(b) of the Cockfighting Law is one that has been fully litigated in the courts below. We are comfortable with reviewing that question in the case at bar and make dispositions proceeding from that key legal question. This is militated by the realization that in order to resolve the question whether injunction should be imposed against the petitioners, there must be first a determination whether Tan may be allowed to operate a second cockpit in Daanbantayan. Thus, the conflict between Section 5(b) of the Cockfighting Law and Ordinance No. 7 now ripens for adjudication.

In arguing that Section 5(b) of the Cockfighting Law has been repealed, petitioners cite the following provisions of Section 447(a)(3)(v) of the Local Government Code:

Section 447. Powers, Duties, Functions and Compensation. (a) The sangguniang bayan, as the legislative body of the municipality, shall enact ordinances, approve resolutions and appropriate funds for the general welfare of the municipality and its inhabitants pursuant to Section 16 of this Code and in the proper exercise of the corporate powers of the municipality as provided for under Section 22 of this Code, and shall:

. . . .

(3) Subject to the provisions of Book II of this Code, grant franchises, enact ordinances authorizing the issuance of permits or licenses, or enact ordinances levying taxes, fees and charges upon such conditions and for such purposes

Page 38: Municipal Corporations

Tan vs. Perenaintended to promote the general welfare of the inhabitants of the municipality, and pursuant to this legislative authority shall:

. . . .

(v) Any law to the contrary notwithstanding, authorize and license the establishment, operation, and maintenance of cockpits, and regulate cockfighting and commercial breeding of gamecocks; Provided, that existing rights should not be prejudiced;

For the petitioners, Section 447(a)(3)(v) sufficiently repeals Section 5(b) of the Cockfighting Law, vesting as it does on LGUs the power and authority to issue franchises and regulate the operation and establishment of cockpits in their respective municipalities, any law to the contrary notwithstanding.

However, while the Local Government Code expressly repealed several laws, the Cockfighting Law was not among them. Section 534(f) of the Local Government Code declares that all general and special laws or decrees inconsistent with the Code are hereby repealed or modified accordingly, but such clause is not an express repealing clause because it fails to identify or designate the acts that are intended to be repealed.43 It is a cardinal rule in statutory construction that implied repeals are disfavored and will not be so declared unless the intent of the legislators is manifest.44 As laws are presumed to be passed with deliberation and with knowledge of all existing ones on the subject, it is logical to conclude that in passing a statute it is not intended to interfere with or abrogate a former law relating to the same subject matter, unless the repugnancy between the two is not only irreconcilable but also clear and convincing as a result of the language used, or unless the latter Act fully embraces the subject matter of the earlier.45

Is the one-cockpit-per-municipality rule under the Cockfighting Law clearly and convincingly irreconcilable with Section 447(a)(3)(v) of the Local Government Code? The clear import of Section 447(a)(3)(v) is that it is the sangguniang bayan which is empowered to authorize and license the establishment, operation and maintenance of cockpits, and regulate cockfighting and commercial breeding of gamecocks, notwithstanding any law to the contrary. The necessity of the qualifying phrase "any law to the contrary notwithstanding" can be discerned by examining the history of laws pertaining to the authorization of cockpit operation in this country.

Cockfighting, or sabong in the local parlance, has a long and storied tradition in our culture and was prevalent even during the Spanish occupation. When the newly-arrived Americans proceeded to organize a governmental structure in the Philippines, they recognized cockfighting as an activity that needed to be regulated, and it was deemed that it was the local municipal council that was best suited to oversee such regulation. Hence, under Section 40 of Act No. 82, the general act for the organization of municipal governments promulgated in 1901, the municipal council was empowered "to license, tax or close cockpits". This power of the municipal council to authorize or license cockpits was repeatedly recognized even after the establishment of the present Republic in 1946.46 Such authority granted unto the municipal councils to license the operation of cockpits was generally unqualified by restrictions.47 The Revised Administrative Code did impose restrictions on what days cockfights could be held.48

However, in the 1970s, the desire for stricter licensing requirements of cockpits started to see legislative fruit. The Cockfighting Law of 1974 enacted several of these restrictions. Apart from the one-cockpit-per-municipality rule, other restrictions were imposed, such as the limitation of ownership of cockpits to Filipino citizens.49 More importantly, under Section 6 of the Cockfighting Law, it was the city or municipal mayor who was authorized to issue licenses for the operation and maintenance of cockpits, subject to the approval of the Chief of Constabulary or his authorized representatives.50 Thus, the sole discretion to authorize the operation of cockpits was removed from the local government unit since the approval of the Chief of Constabulary was now required.

P.D. No. 1802 reestablished the Philippine Gamefowl Commission51 and imposed further structure in the regulation of cockfighting. Under Section 4 thereof, city and municipal mayors with the concurrence of their respective sangguniang panglunsod or sangguniang bayan, were given the authority to license and regulate cockfighting, under the supervision of the City Mayor or the Provincial Governor. However, Section 4 of P.D. No. 1802 was subsequently amended, removing the supervision exercised by the mayor or governor and substituting in their stead the Philippine Gamefowl Commission. The amended provision ordained:

Page 39: Municipal Corporations

Tan vs. PerenaSec. 4. City and Municipal Mayors with the concurrence of their respective "Sanggunians" shall have the authority to license and regulate regular cockfighting pursuant to the rules and regulations promulgated by the Commission and subject to its review and supervision.

The Court, on a few occasions prior to the enactment of the Local Government Code in 1991, had opportunity to expound on Section 4 as amended. A discussion of these cases will provide a better understanding of the qualifier "any law to the contrary notwithstanding" provided in Section 447(a)(3)(v).

In Philippine Gamefowl Commission v. Intermediate Appellate Court,52 the Court, through Justice Cruz, asserted that the conferment of the power to license and regulate municipal cockpits in municipal authorities is in line with the policy of local autonomy embodied in the Constitution.53 The Court affirmed the annulment of a resolution of the Philippine Gamefowl Commission which ordered the revocation of a permit issued by a municipal mayor for the operation of a cockpit and the issuance of a new permit to a different applicant. According to the Court, the Philippine Gamefowl Commission did not possess the power to issue cockpit licenses, as this was vested by Section 4 of P.D. No. 1802, as amended, to the municipal mayor with the concurrence of the sanggunian. It emphasized that the Philippine Gamefowl Commission only had review and supervision powers, as distinguished from control, over ordinary cockpits.54 The Court also noted that the regulation of cockpits was vested in municipal officials, subject only to the guidelines laid down by the Philippine Gamefowl Commission.55 The Court conceded that "[if] at all, the power to review includes the power to disapprove; but it does not carry the authority to substitute one’s own preferences for that chosen by the subordinate in the exercise of its sound discretion."

The twin pronouncements that it is the municipal authorities who are empowered to issue cockpit licenses and that the powers of the Philippine Gamefowl Commission were limited to review and supervision were affirmed in Deang v. Intermediate Appellate Court,56 Municipality of Malolos v. Libangang Malolos Inc.57 and Adlawan v. Intermediate Appellate Court.58 But notably in Cootauco v. Court of Appeals,59 the Court especially noted thatPhilippine Gamefowl Commission did indicate that the Commission’s "power of review includes the power to disapprove."60 Interestingly, Justice Cruz, the writer of Philippine Gamefowl Commission, qualified his concurrence in Cootauco "subject to the reservations made in [Philippine Gamefowl Commission] regarding the review powers of the PGC over cockpit licenses issued by city and municipal mayors."61

1awphi1.nét

These cases reiterate what has been the traditional prerogative of municipal officials to control the issuances of licenses for the operation of cockpits. Nevertheless, the newly-introduced role of the Philippine Gamefowl Commission vis-à-vis the operation of cockpits had caused some degree of controversy, as shown by the cases above cited.

Then, the Local Government Code of 1991 was enacted. There is no more forceful authority on this landmark legislation than Senator Aquilino Pimentel, Jr., its principal author. In his annotations to the Local Government Code, he makes the following remarks relating to Section 447(a)(3)(v):

12. Licensing power. In connection with the power to grant licenses lodged with it, the Sangguniang Bayan may now regulate not only businesses but also occupations, professions or callings that do not require government examinations within its jurisdiction. l^vvphi1.net It may also authorize and license the establishment, operation and maintenance of cockpits, regulate cockfighting, and the commercial breeding of gamecocks. Existing rights however, may not be prejudiced. The power to license cockpits and permits for cockfighting has been removed completely from the Gamefowl Commission.

Thus, that part of the ruling of the Supreme Court in the case of Municipality of Malolos v. Libangang Malolos, Inc. et al., which held that "…the regulation of cockpits is vested in the municipal councils guidelines laid down by the Philippine Gamefowl Commission" is no longer controlling. Under [Section 447(a)(3)(v)], the power of the Sanggunian concerned is no longer subject to the supervision of the Gamefowl Commission.62

The above observations may be faulted somewhat in the sense that they fail to acknowledge the Court’s consistent position that the licensing power over cockpits belongs exclusively to the municipal authorities and not the Philippine Gamefowl Commission. Yet these views of Senator Pimentel evince the apparent confusion regarding the role of the Philippine Gamefowl Commission as indicated in the cases previously cited, and accordingly bring the phrase Section 447(a)(3)(v) used in "any law to the contrary notwithstanding" into its proper light. The qualifier serves notice, in case it

Page 40: Municipal Corporations

Tan vs. Perenawas still doubtful, that it is the sanggunian bayan concerned alone which has the power to authorize and license the establishment, operation and maintenance of cockpits, and regulate cockfighting and commercial breeding of gamecocks within its territorial jurisdiction.

Given the historical perspective, it becomes evident why the legislature found the need to use the phrase "any law to the contrary notwithstanding" in Section 447(a)(3)(v). However, does the phrase similarly allow the Sangguniang Bayan to authorize more cockpits than allowed under Section 5(d) of the Cockfighting Law? Certainly, applying the test of implied repeal, these two provisions can stand together. While the sanggunian retains the power to authorize and license the establishment, operation, and maintenance of cockpits, its discretion is limited in that it cannot authorize more than one cockpit per city or municipality, unless such cities or municipalities have a population of over one hundred thousand, in which case two cockpits may be established. Considering that Section 447(a)(3)(v) speaks essentially of the identity of the wielder of the power of control and supervision over cockpit operation, it is not inconsistent with previous enactments that impose restrictions on how such power may be exercised. In short, there is no dichotomy between affirming the power and subjecting it to limitations at the same time.

Perhaps more essential than the fact that the two controverted provisions are not inconsistent when put together, the Court recognizes that Section 5(d) of the Cockfighting Law arises from a valid exercise of police power by the national government. Of course, local governments are similarly empowered under Section 16 of the Local Government Code.l^vvphi1.net The national government ought to be attuned to the sensitivities of devolution and strive to be sparing in usurping the prerogatives of local governments to regulate the general welfare of their constituents.

We do not doubt, however, the ability of the national government to implement police power measures that affect the subjects of municipal government, especially if the subject of regulation is a condition of universal character irrespective of territorial jurisdictions. Cockfighting is one such condition. It is a traditionally regulated activity, due to the attendant gambling involved63 or maybe even the fact that it essentially consists of two birds killing each other for public amusement. Laws have been enacted restricting the days when cockfights could be held,64 and legislation has even been emphatic that cockfights could not be held on holidays celebrating national honor such as Independence Day65 and Rizal Day.66

The Whereas clauses of the Cockfighting Law emphasize that cockfighting "should neither be exploited as an object of commercialism or business enterprise, nor made a tool of uncontrolled gambling, but more as a vehicle for the preservation and perpetuation of native Filipino heritage and thereby enhance our national identity."67 The obvious thrust of our laws designating when cockfights could be held is to limit cockfighting and imposing the one-cockpit-per-municipality rule is in line with that aim. Cockfighting is a valid matter of police power regulation, as it is a form of gambling essentially antagonistic to the aims of enhancing national productivity and self-reliance.68Limitation on the number of cockpits in a given municipality is a reasonably necessary means for the accomplishment of the purpose of controlling cockfighting, for clearly more cockpits equals more cockfights.

If we construe Section 447(a)(3)(v) as vesting an unlimited discretion to the sanggunian to control all aspects of cockpits and cockfighting in their respective jurisdiction, this could lead to the prospect of daily cockfights in municipalities, a certain distraction in the daily routine of life in a municipality. This certainly goes against the grain of the legislation earlier discussed. If the arguments of the petitioners were adopted, the national government would be effectively barred from imposing any future regulatory enactments pertaining to cockpits and cockfighting unless it were to repeal Section 447(a)(3)(v).

A municipal ordinance must not contravene the Constitution or any statute, otherwise it is void.69 Ordinance No. 7 unmistakably contravenes the Cockfighting Law in allowing three cockpits in Daanbantayan. Thus, no rights can be asserted by the petitioners arising from the Ordinance. We find the grant of injunction as ordered by the appellate court to be well-taken.

WHEREFORE, the petition is DENIED. Costs against petitioners.

SO ORDERED.

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Disomangcop vs. Datumanong

EN BANC

[G.R. No. 149848.  November 25, 2004]

ARSADI M. DISOMANGCOP and RAMIR M. DIMALOTANG, petitioners, vs. THE SECRETARY OF THE DEPARTMENT OF PUBLIC WORKS AND HIGHWAYS SIMEON A. DATUMANONG and THE SECRETARY OF BUDGET and MANAGEMENT EMILIA T. BONCODIN, respondents.

D E C I S I O N

TINGA, J.:

At stake in the present case is the fate of regional autonomy for Muslim Mindanao which is the epoch-making, Constitution-based project for achieving national unity in diversity.

Challenged in the instant petition for certiorari, prohibition and mandamus with prayer for  a temporary restraining order and/or writ of preliminary injunction [1] (Petition) are the constitutionality and validity of Republic Act No. 8999 (R.A. 8999), [2] entitled “An Act Establishing An Engineering District in the First District of the Province of Lanao del Sur and Appropriating Funds Therefor,”  and Department of Public Works and Highways (DPWH) Department Order No. 119 (D.O. 119) [3] on the subject, “Creation of Marawi Sub-District Engineering Office.”

The Background

The uncontested legal and factual antecedents of the case follow.

For the first time in its history after three Constitutions, the Philippines ordained the establishment of regional autonomy with the adoption of the 1987 Constitution. Sections 1 [4] and 15, Article X mandate the creation of autonomous regions in Muslim Mindanao and in the Cordilleras. Section 15 specifically 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, 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 Charter devotes a number of provisions under Article X.[5]

Pursuant to the constitutional mandate, Republic Act No. 6734 (R.A. 6734), entitled “An Act Providing for An Organic Act for the Autonomous Region in Muslim Mindanao,”  was enacted and signed into law on 1 August 1989. The law called for the holding of a plebiscite in the provinces of Basilan, Cotabato, Davao del Sur, Lanao del Norte, Lanao del Sur, Maguindanao, Palawan, South Cotabato, Sultan Kudarat, Sulu, Tawi-Tawi, Zamboanga del Norte, and Zamboanga del Sur, and the cities of Cotabato, Dapitan, Dipolog, General Santos, Iligan, Marawi, Pagadian, Puerto Princesa and Zamboanga.[6] In the ensuing plebiscite held on 19 November 1989, only four (4) provinces voted for the creation of an autonomous region, namely: Lanao del Sur, Maguindanao, Sulu and Tawi-Tawi.  These provinces became the Autonomous Region in Muslim Mindanao (ARMM). [7] The law contains elaborate provisions on the powers of the Regional Government and the areas of jurisdiction which are reserved for the National Government.[8]

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Disomangcop vs. DatumanongIn accordance with R.A. 6734, then President Corazon C. Aquino issued on 12 October 1990,

Executive Order No. 426 (E.O. 426), entitled “Placing the Control and Supervision of the Offices of the Department of Public Works and Highways within the Autonomous Region in Muslim Mindanao under the Autonomous Regional Government, and for other purposes.” Sections 1 to 3[9] of the Executive Order are its operative provisions.

ARMM was formally organized on 6 November 1990. President Corazon C. Aquino flew to Cotabato, the seat of the Regional Government, for the inauguration. At that point, she had already signed seven (7) Executive Orders devolving to ARMM the powers of seven (7) cabinet departments, namely: (1) local government; (2) labor and employment; (3) science and technology; (4) public works and highways; (5) social welfare and development; (6) tourism; and (7) environment and national resources. [10]

Nearly nine (9) years later, on 20 May 1999, then Department of Public Works and Highways (DPWH) Secretary Gregorio R. Vigilar issued D.O. 119 which reads, thus:

Subject: Creation of Marawi Sub-District Engineering Office

Pursuant to Sections 6 and 25 of Executive Order No. 124 dated 30 January 1987, there is hereby created a DPWH Marawi Sub-District Engineering Office which shall have jurisdiction over all national infrastructure projects and facilities under the DPWH within Marawi City and the province of Lanao del Sur.  The headquarters of the Marawi Sub-District Engineering Office shall be at the former quarters of the Marawi City Engineering Office.

Personnel of the above-mentioned Sub-District Engineering Office shall be made up of employees of the National Government Section of the former Marawi City Engineering Office who are now assigned with the Iligan City Sub-District Engineering Office as may be determined by the DPWH Region XII Regional Director. (Emphasis supplied)

Almost two (2) years later, on 17 January 2001, then President Joseph E. Estrada approved and signed into law R.A. 8999. The text of the law reads:

AN ACT ESTABLISHING AN ENGINEERING DISTRICT IN THE FIRST DISTRICT OF THE PROVINCE OF LANAO DEL SUR AND APPROPRIATING FUNDS THEREFOR

Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:

SECTION 1. The City of Marawi and the municipalities comprising the First District of the Province of Lanao del Sur are hereby constituted into an engineering district to be known as the First Engineering District of the Province of Lanao del Sur.

SEC. 2.  The office of the engineering district hereby created shall be established in Marawi City, Province of Lanao del Sur.

SEC. 3. The amount necessary to carry out the provisions of this Act shall be included in the General Appropriations Act of the year following its enactment into law. Thereafter, such sums as may be necessary for the maintenance and continued operation of the engineering district office shall be included in the annual General Appropriations Act.

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Disomangcop vs. DatumanongSEC. 4. This Act shall take effect upon its approval. (Emphasis supplied)

Congress later passed Republic Act No. 9054 (R.A. 9054), entitled “An Act to Strengthen and Expand the Organic Act for the Autonomous Region in Muslim Mindanao, Amending for the Purpose Republic Act No. 6734, entitled An Act Providing for the Autonomous Region in Muslim Mindanao, as Amended.” Like its forerunner, R.A. 9054 contains detailed provisions on the powers of the Regional Government and the retained areas of governance of the National Government.[11]

R.A. 9054 lapsed into law[12] on 31 March 2001. It was ratified in a plebiscite held on 14 August 2001. The province of Basilan and the City of Marawi also voted to join ARMM on the same date. R.A. 6734 and R.A. 9054 are collectively referred to as the ARMM Organic Acts.

On 23 July 2001, petitioners Arsadi M. Disomangcop (Disomangcop) and Ramir M. Dimalotang (Dimalotang) addressed a petition to then DPWH Secretary Simeon A. Datumanong, seeking the revocation of D.O. 119 and the non-implementation of R.A. 8999. No action, however, was taken on the petition.[13]

Consequently, petitioners Disomangcop and Dimalotang filed the instant petition, in their capacity as Officer-in-Charge and District Engineer/Engineer II, respectively, of the First Engineering District of the Department of Public Works and Highways, Autonomous Region in Muslim Mindanao (DPWH-ARMM) in Lanao del Sur.

Petitioners seek the following principal reliefs: (1) to annul and set aside D.O. 119; (2) to prohibit respondent DPWH Secretary from implementing D.O. 119 and R.A. 8999 and releasing funds for public works projects intended for Lanao del Sur and Marawi City to the Marawi Sub-District Engineering Office and other administrative regions of DPWH; and (3) to compel the Secretary of the Department of Budget and Management (DBM) to release all funds for public works projects intended for Marawi City and the First District of Lanao del Sur to the DPWH-ARMM First Engineering District in Lanao del Sur only; and to compel respondent DPWH Secretary to let the DPWH-ARMM First  Engineering District in Lanao del Sur implement all public works projects within its jurisdictional area.[14]

The petition includes an urgent application for the issuance of a temporary restraining order (TRO) and, after hearing, a writ of preliminary injunction, to enjoin  respondent DBM Secretary from releasing funds for public works projects in Lanao del Sur to entities other than the DPWH-ARMM First Engineering District in Lanao del Sur, and also to restrain the DPWH Secretary from allowing others besides the DPWH-ARMM First Engineering District in Lanao del Sur to implement public works projects in Lanao del Sur.[15]

To support their petition, petitioners allege that D.O. 119 was issued with grave abuse of discretion and that it violates the constitutional autonomy of the ARMM. They point out that the challenged Department Order has tasked the Marawi Sub-District Engineering Office with functions that have already been devolved to the DPWH-ARMM First Engineering District in Lanao del Sur. [16]

Petitioners also contend that R.A. 8999 is a piece of legislation that was not intelligently and thoroughly studied, and that the explanatory note to House Bill No. 995 (H.B. 995) from which the law originated is questionable. Petitioners assert as well that prior to the sponsorship of the law, no public hearing nor consultation with the DPWH-ARMM was made. The House Committee on Public Works and Highways (Committee) failed to invite a single official from the affected agency. Finally, petitioners argue that the law was skillfully timed for signature by former President Joseph E. Estrada during the pendency of the impeachment proceedings.[17]

In its resolution of 8 October 2001, the Court required respondents to file their comment. [18] In compliance, respondents DPWH Secretary and DBM Secretary, through the Solicitor General, filed on 7 January 2002, their Comment.

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Disomangcop vs. DatumanongIn their Comment,[19] respondents, through the Office of the Solicitor General, maintain the validity of

D.O. 119, arguing that it was issued in accordance with Executive Order No. 124 (E.O. 124). [20] In defense of the constitutionality of R.A. 8999, they submit that the powers of the autonomous regions did not diminish the legislative power of Congress. [21] Respondents also contend that the petitioners have no locus standi or legal standing to assail the constitutionality of the law and the department order. They note that petitioners have no personal stake in the outcome of the controversy.[22]

Asserting their locus standi, petitioners in their Memorandum[23] point out that they will suffer actual injury as a result of the enactments complained of.[24]

Jurisdictional Considerations

First, the jurisdictional predicates.

The 1987 Constitution is explicit in defining the scope of judicial power. It establishes the authority of the courts to determine in an appropriate action the validity of acts of the political departments. It speaks of judicial prerogative in terms of duty.[25]

Jurisprudence has laid down the following requisites for the exercise of judicial power: First, there must be before the Court an actual case calling for the exercise of judicial review. Second, the question before the Court must be ripe for adjudication. Third, the person challenging the validity of the act must have standing to challenge. Fourth, the question of constitutionality must have been raised at the earliest opportunity. Fifth, the issue of constitutionality must be the very lis mota of the case.[26]

In seeking to nullify acts of the legislature and the executive department on the ground that they contravene the Constitution, the petition no doubt raises a justiciable controversy. As held in Tañada v. Angara,[27] “where an action of the legislative branch is seriously alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute.” But in deciding to take jurisdiction over this petition questioning acts of the political departments of government, the Court will not review the wisdom, merits, or propriety thereof, but will strike them down only on either of two grounds: (1) unconstitutionality or illegality and (2) grave abuse of discretion.[28]

For an abuse to be grave, the power must be exercised in an arbitrary or despotic manner by reason of passion or personal hostility. The abuse of discretion must be patent and gross as to amount to an evasion of a positive duty, or a virtual refusal to perform the duty enjoined or to act in contemplation of law. There is grave abuse of discretion when respondent acts in a capricious or whimsical manner in the exercise of its judgment as to be equivalent to lack of jurisdiction.[29]

The challenge to the legal standing of petitioners cannot succeed. Legal standing or locus standi is defined as a personal and substantial interest in the case such that the party has sustained or will sustain direct injury as a result of the governmental act that is being challenged. The term “interest” means a material interest, an interest in issue affected by the decree, as distinguished from a mere interest in the question involved, or a mere incidental interest.[30]

A party challenging the constitutionality of a law, act, or statute must show “not only that the law is invalid, but also that he has sustained or is in immediate, or imminent danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers thereby in some indefinite way.” He must show that he has been, or is about to be, denied some right or privilege to which he is lawfully entitled, or that he is about to be subjected to some burdens or penalties by reason of the statute complained of.[31]

But following the new trend, this Court is inclined to take cognizance of a suit although it does not satisfy the requirement of legal standing when paramount interests are involved. In several cases, the Court has adopted a liberal stance on the locus standi of a petitioner where the petitioner is able to craft an issue of transcendental significance to the people.[32]

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Disomangcop vs. DatumanongIn the instant case, petitioner Disomangcop holds the position of Engineer IV. When he filed this

petition, he was the Officer-in-Charge, Office of the District Engineer of the First Engineering District of DPWH-ARMM, Lanao del Sur. On the other hand, petitioner Dimalotang is an Engineer II and President of the rank and file employees also of the First Engineering District of DPWH-ARMM in Lanao del Sur. Both are charged with the duty and responsibility of supervising and implementing all public works projects to be undertaken and being undertaken in Lanao del Sur which is the area of their jurisdiction. [33]

It is thus not far-fetched that the creation of the Marawi Sub-District Engineering Office under D.O. 119 and the creation of and appropriation of funds to the First Engineering District of Lanao del Sur as directed under R.A. 8999 will affect the powers, functions and responsibilities of the petitioners and the DPWH-ARMM.  As the two offices have apparently been endowed with functions almost identical to those of DPWH-ARMM First Engineering District in Lanao del Sur, it is likely that petitioners are in imminent danger of being eased out of their duties and, not remotely, even their jobs. Their material and substantial interests will definitely be prejudiced by the enforcement of D.O. 119 and R.A. 8999. Such injury is direct and immediate. Thus, they can legitimately challenge the validity of the enactments subject of the instant case.

Points of Contention

In the petition before us, petitioners contend that R.A. 8999 and D.O. 119 are unconstitutional and were issued with grave abuse of discretion.

We agree in part.

Republic Act No.  8999

At the outset, let it be made clear that it is not necessary to declare R.A. No. 8999 unconstitutional for the adjudication of this case. The accepted rule is that the Court will not resolve a constitutional question unless it is the lis mota of the case, or if the case can be disposed of or settled on other grounds.[34]

The plain truth is the challenged law never became operative and was superseded or repealed by a subsequent enactment.

The ARMM Organic Acts are deemed a part of the regional autonomy scheme.  While they are classified as statutes, the Organic Acts are more than ordinary statutes because they enjoy affirmation by a plebiscite.[35] Hence, the provisions thereof cannot be amended by an ordinary statute, such as R.A. 8999 in this case. The   amendatory law has to be submitted to a plebiscite.

We quote excerpts of the deliberations of the Constitutional Commission:

FR. BERNAS. Yes, that is the reason I am bringing this up. This thing involves some rather far-reaching consequences also in relation to the issue raised by Commissioner Romulo with respect to federalism. Are we, in effect, creating new categories of laws? Generally, we have statutes and constitutional provisions. Is this organic act equivalent to a constitutional provision? If it is going to be equivalent to a constitutional provision, it would seem to me that the formulation of the provisions of the organic act will have to be done by the legislature, acting as a constituent assembly, and therefore, subject to the provisions of the Article on Amendments. That is the point that I am trying to bring up. In effect, if we opt for federalism, it would really involve an act of the National Assembly or Congress acting as a constituent assembly and present amendments to this Constitution, and the end product itself would be a constitutional provision which would only be amendable according to the processes indicated in the Constitution.

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Disomangcop vs. DatumanongMR. OPLE. Madam President, may I express my personal opinion in this respect.

I think to require Congress to act as a constituent body before enacting an organic act would be to raise an autonomous region to the same level as the sovereign people of the whole country. And I think the powers of the Congress should be quite sufficient in enacting a law, even if it is now exalted to the level of an organic act for the purpose of providing a basic law for an autonomous region without having to transform itself into a constituent assembly. We are dealing still with one subordinate subdivision of the State even if it is now vested with certain autonomous powers on which its own legislature can pass laws.

FR. BERNAS. So the questions I have raised so far with respect to this organic act are: What segment of the population will participate in the plebiscite? In what capacity would the legislature be acting when it passes this? Will it be a constituent assembly or merely a legislative body?  What is the nature, therefore, of this organic act in relation to ordinary statutes and the Constitution? Finally, if we are going to amend this organic act, what process will be followed?

MR. NOLLEDO. May I answer that, please, in the light of what is now appearing in our report.

First, only the people who are residing in the units composing the regions should be allowed to participate in the plebiscite. Second, the organic act has the character of a charter passed by the Congress, not as a constituent assembly, but as an ordinary legislature and, therefore, the organic act will still be subject to amendments in the ordinary legislative process as now constituted, unless the Gentlemen has another purpose.

FR. BERNAS. But with plebiscite again.

MR. NOLLEDO. Those who will participate in the plebiscite are those who are directly affected, the inhabitants of the units constitutive of the region. (Emphasis supplied)[36]

Although R.A. 9054 was enacted later, it reaffirmed the imperativeness of the plebiscite requirement.[37] In fact, R.A. 9054 itself, being the second or later ARMM Organic Act, was subjected to and ratified in a plebiscite.

The first ARMM Organic Act, R.A. 6074, as implemented by E.O. 426, devolved the functions of the DPWH in the ARMM which includes Lanao del Sur (minus Marawi City at the time) [38] to the Regional Government. By creating an office with previously devolved functions, R.A. 8999, in essence, sought to amend R.A. 6074.  The amendatory law should therefore first obtain the approval of the people of the ARMM before it could validly take effect. Absent compliance with this requirement, R.A. 8999 has not even become operative.

From another perspective, R.A. 8999 was repealed and superseded by R.A. 9054.  Where a statute of later date clearly reveals an intention on the part of the legislature to abrogate a prior act on the subject, that intention must be given effect.

Of course, the intention to repeal must be clear and manifest. [39] Implied repeal by irreconcilable inconsistency takes place when the two statutes cover the same subject matter; they are clearly inconsistent and incompatible with each other that they cannot be reconciled or harmonized; and both cannot be given effect, that is, that one law cannot be enforced without nullifying the other. [40]

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Disomangcop vs. DatumanongThe Court has also held that statutes should be construed in light of the objective to be achieved

and the evil or mischief to be suppressed, and they should be given such construction as will advance the object, suppress the mischief and secure the benefits intended.[41]

R.A. 9054 is anchored on the 1987 Constitution.  It advances the constitutional grant of autonomy by detailing the powers of the ARG covering, among others, Lanao del Sur and Marawi City, one of which is its jurisdiction over regional urban and rural planning. R.A. 8999, however, ventures to reestablish the National Government’s jurisdiction over infrastructure programs in Lanao del Sur. R.A. 8999 is patently inconsistent with R.A. 9054, and it destroys the latter law’s objective.

Clearly, R.A. 8999 is antagonistic to and cannot be reconciled with both ARMM Organic Acts, R.A. 6734 and R.A. 9054. The kernel of the antagonism and disharmony lies in the regional autonomy which the ARMM Organic Acts ordain pursuant to the Constitution.  On the other hand, R.A. 8999 contravenes true decentralization which is the essence of regional autonomy.

Regional Autonomy UnderR.A. 6734 and R.A. 9054

The 1987 Constitution mandates regional autonomy to give a bold and unequivocal answer to the cry for a meaningful, effective and forceful autonomy. [42] According to Commissioner Jose Nolledo, Chairman of the Committee which drafted the provisions, it “is an indictment   against  the  status quo of  a  unitary system that, to my mind, has ineluctably tied the hands of progress in our country . . . our varying regional characteristics are factors to capitalize on to attain national strength through decentralization.”[43]

The idea behind the Constitutional provisions for autonomous regions is to allow the separate development of peoples with distinctive cultures and traditions. [44] These cultures, as a matter of right, must be allowed to flourish.[45]

Autonomy, as a national policy, recognizes the wholeness of the Philippine society in its ethnolinguistic, cultural, and even religious diversities. It strives to free Philippine society of the strain and wastage caused by the assimilationist approach. [46] Policies emanating from the legislature are invariably assimilationist in character despite channels being open for minority representation. As a result, democracy becomes an irony to the minority group.[47]

Several commissioners echoed the pervasive sentiment in the plenary sessions in their own inimitable way.  Thus, Commissioner Blas Ople referred to the recognition that the Muslim Mindanao and the Cordilleras “do not belong to the dominant national community” as the justification for conferring on them a “measure of legal self-sufficiency, meaning self-government, so that they will flourish politically, economically and culturally,” with the hope that after achieving parity with the rest of the country they would “give up their own autonomous region in favor of joining the national mainstream.”[48] For his part, the Muslim delegate, Commissioner Ahmad Alonto, spoke of the diversity of cultures as the framework for nation-building. [49] Finally, excerpts of the poignant plea of Commissioner Ponciano Bennagen deserve to be quoted verbatim:

. . . They see regional autonomy as the answer to their centuries of struggle against oppression and exploitation. For so long, their names and identities have been debased. Their ancestral lands have been ransacked for their treasures, for their wealth. Their cultures have been defiled, their very lives threatened, and worse, extinguished, all in the name of national development; all in the name of public interest; all in the name of common good; all in the name of the right to property; all in the name of Regalian Doctrine; all in the name of national security. These phrases have meant nothing to our indigenous communities, except for the violation of their human rights.

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Disomangcop vs. Datumanong. . .

Honorable Commissioners, we wish to impress upon you the gravity of the decision to be made by every single one of us in this Commission. We have the overwhelming support of the Bangsa Moro and the Cordillera Constitution. By this we mean meaningful and authentic regional autonomy. We propose that we have a separate Article on the autonomous regions for the Bangsa Moro and Cordillera people clearly spelled out in this Constitution, instead of prolonging the agony of their vigil and their struggle. This, too is a plea for national peace. Let us not pass the buck to the Congress to decide on this. Let us not wash our hands of our responsibility to attain national unity and peace and to settle this problem and rectify past injustices, once and for all.[50]

The need for regional autonomy is more pressing in the case of the Filipino Muslims and the Cordillera people who have been fighting for it. Their political struggle highlights their unique cultures and the unresponsiveness of the unitary system to their aspirations. [51] The Moros’ struggle for self-determination dates as far back as the Spanish conquest in the Philippines. Even at present, the struggle goes on.[52]

Perforce, regional autonomy is also a means towards solving existing serious peace and order problems and secessionist movements. Parenthetically, autonomy, decentralization and regionalization, in international law, have become politically acceptable answers to intractable problems of nationalism, separatism, ethnic conflict and threat of secession.[53]

However, the creation of autonomous regions does not signify the establishment of a sovereignty distinct from that of the Republic, as it can be installed only “within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines.” [54]

Regional autonomy is the degree of self-determination exercised by the local government unit vis-à-vis the central government.

In international law, the right to self-determination need not be understood as a right to political separation, but rather as a complex net of legal-political relations between a certain people and the state authorities. It ensures the right of peoples to the necessary level of autonomy that would guarantee the support of their own cultural identity, the establishment of priorities by the community’s internal decision-making processes and the management of collective matters by themselves.[55]

If self-determination is viewed as an end in itself reflecting a preference for homogeneous, independent nation-states, it is incapable of universal application without massive disruption. However, if self-determination is viewed as a means to an end—that end being a democratic, participatory political and economic system in which the rights of individuals and the identity of minority communities are protected—its continuing validity is more easily perceived.[56]

Regional autonomy refers to the granting of basic internal government powers to the people of a particular area or region with least control and supervision from the central government.[57]

The objective of the autonomy system is to permit determined groups, with a common tradition and shared social-cultural characteristics, to develop freely their ways of life and heritage, exercise their rights, and be in charge of their own business. This is achieved through the establishment of a special governance regime for certain member communities who choose their own authorities from within the community and exercise the jurisdictional authority legally accorded to them to decide internal community affairs.[58]

In the Philippine setting, regional autonomy implies the cultivation of more positive means for national integration. It would remove the wariness among the Muslims, increase their trust in the

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Disomangcop vs. Datumanonggovernment and pave the way for the unhampered implementation of the development programs in the region.[59] Again, even a glimpse of the deliberations of the Constitutional Commission could lend a sense of the urgency and the inexorable appeal of true decentralization:

MR. OPLE. . . . We are writing a Constitution, of course, for generations to come, not only for the present but for our posterity. There is no harm in recognizing certain vital pragmatic needs for national peace and solidarity, and the writing of this Constitution just happens at a time when it is possible for this Commission to help the cause of peace and reconciliation in Mindanao and the Cordilleras, by taking advantage of a heaven-sent opportunity.  . . . [60]

. . .

MR. ABUBAKAR. . . . So in order to foreclose and convince the rest of the of the Philippines that Mindanao autonomy will be granted to them as soon as possible, more or less, to dissuade these armed men from going outside while Mindanao will be under the control of the national government, let us establish an autonomous Mindanao within our effort and capacity to do so within the shortest possible time. This will be an answer to the Misuari clamor, not only for autonomy but for independence.[61]

. . .

MR. OPLE. . . .  The reason for this abbreviation of the period for the consideration of the Congress of the organic acts and their passage is that we live in abnormal times. In the case of Muslim Mindanao and the Cordilleras, we know that we deal with questions of war and peace. These are momentous issues in which the territorial integrity and the solidarity of this country are being put at stake, in a manner of speaking.

We are writing a peace Constitution. We hope that the Article on Social Justice can contribute to a climate of peace so that any civil strife in the countryside can be more quickly and more justly resolved. We are providing for autonomous regions so that we give constitutional permanence to the just demands and grievances of our own fellow countrymen in the Cordilleras and in Mindanao. One hundred thousand lives were lost in that struggle in Mindanao, and to this day, the Cordilleras is being shaken by an armed struggle as well as a peaceful and militant struggle.

. . .

Rather than give opportunity to foreign bodies, no matter how sympathetic to the Philippines, to contribute to the settlement of this issue, I think the Constitutional Commission ought not to forego the opportunity to put the stamp of this Commission through definitive action on the settlement of the problems that have nagged us and our forefathers for so long.[62]

A necessary prerequisite of autonomy is decentralization.[63]

Decentralization is a decision by the central government authorizing its subordinates, whether geographically or functionally defined, to exercise authority in certain areas. It involves decision-making by subnational units.  It is typically a delegated power, wherein a larger government chooses to delegate certain authority to more local governments. Federalism implies some measure of decentralization, but unitary systems may also decentralize. Decentralization differs intrinsically from federalism in that the

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Disomangcop vs. Datumanongsub-units that have been authorized to act (by delegation) do not possess any claim of right against the central government.[64]

Decentralization comes in two forms—deconcentration and devolution. Deconcentration is administrative in nature; it involves the transfer of functions or the delegation of authority and responsibility from the national office to the regional and local offices.  This mode of decentralization is also referred to as administrative decentralization.[65]

 Devolution, on the other hand, connotes political decentralization, or the transfer of powers, responsibilities, and resources for the performance of certain functions from the central government to local government units.[66]  This is a more liberal form of decentralization since there is an actual transfer of powers and responsibilities.[67] It aims to grant greater autonomy to local government units in cognizance of their right to self-government, to make them self-reliant, and to improve their administrative and technical capabilities.[68]

This Court elucidated the concept of autonomy in Limbona v. Mangelin,[69] thus:

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,” and “ensure their fullest development as self-reliant communities and make them more effective partners in the pursuit of national development and social progress.” 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” over them, but only to “ensure that local affairs are administered according to law.” He has no control over their acts in the sense that he can substitute their judgments with his own.

Decentralization of power, on the other hand, involves an abdication of political power in the favor of local government 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.

In the case, the Court reviewed the expulsion of a member from the Sangguniang Pampook, Autonomous Region. It held that the Court may assume jurisdiction as the local government unit, organized before 1987, enjoys autonomy of the former category. It refused, though, to resolve whether the grant of autonomy to Muslim Mindanao under the 1987 Constitution involves, truly, an effort to decentralize power rather than mere administration.[70]

A year later, in Cordillera Broad Coalition v. Commission on Audit,[71] the Court, with the same composition, ruled without any dissent that the creation of autonomous regions contemplates the grant of political autonomy—an autonomy which is greater than the administrative autonomy granted to local government units. It held that “the constitutional guarantee of local autonomy in the Constitution (Art. X, Sec. 2) refers to administrative autonomy of local government units or, cast in more technical language, the decentralization of government authority…. 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.”[72]

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Disomangcop vs. DatumanongAnd by regional autonomy, the framers intended it to mean “meaningful and authentic regional

autonomy.”[73] As articulated by a Muslim author, substantial and meaningful autonomy is “the kind of local self-government which allows the people of the region or area the power to determine what is best for their growth and development without undue interference or dictation from the central government.” [74]

To this end, Section 16, Article X[75] limits the power of the President over autonomous regions.[76] In essence, the provision also curtails the power of Congress over autonomous regions. [77] Consequently, Congress will have to re-examine national laws and make sure that they reflect the Constitution’s adherence to local autonomy. And in case of conflicts, the underlying spirit which should guide its resolution is the Constitution’s desire for genuine local autonomy.[78]

The diminution of Congress’ powers over autonomous regions was confirmed in Ganzon v. Court of Appeals,[79] wherein this Court held that “the omission (of “as may be provided by law”) signifies nothing more than to underscore local governments’ autonomy from Congress and to break Congress’  ‘control’ over local government affairs.”

This is true to subjects over which autonomous regions have powers, as specified in Sections 18 and 20, Article X of the 1987 Constitution. Expressly not included therein are powers over certain areas.  Worthy of note is that the area of public works is not excluded and neither is it reserved for the National Government.The key provisions read, thus:

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 the 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 provinces, cities, and geographic areas voting favorably in such plebiscite shall be included in the autonomous region.

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;

Page 52: Municipal Corporations

Disomangcop vs. Datumanong(8) Preservation and development of the cultural  heritage; and

(9) Such other matters as may be authorized by law for the promotion of general welfare of the people of the region. (Emphasis supplied)

E.O. 426 officially devolved the powers and functions of the DPWH in ARMM to the Autonomous Regional Government (ARG). Sections 1 and 2 of E.O. 426 provide:

SECTION 1.  Transfer of Control and Supervision.  The offices of the Department of Public Works and Highways (DPWH) within the Autonomous Region in Muslim Mindanao (ARMM) including their functions, powers and responsibilities, personnel, equipment, properties, budgets and liabilities are hereby placed under the control and supervision of the Autonomous Regional Government.

In particular, these offices are identified as the four (4) District Engineering Offices (DEO) in each of the four provinces respectively and the three (3) Area Equipment Services (AES) located in Tawi-Tawi, Sulu and Maguindanao (Municipality of  Sultan Kudarat).

SEC. 2. Functions Transferred.  The Autonomous Regional Government shall be responsible for highways, flood control and water resource development systems, and other public works within the ARMM and shall exercise the following functions:

1.       Undertake and evaluate the planning, design, construction and works supervision for the infrastructure projects whose location and impact are confined within the ARMM;

2.       Undertake the maintenance of infrastructure facilities within the ARMM and supervise the maintenance of such local roads and other infrastructure facilities receiving financial assistance from the National Government;

3.       Ensure the implementation of laws, policies, programs, rules and regulations regarding infrastructure projects as well as all public and private physical structures within the ARMM;

4.       Provide technical assistance related to their functions to other agencies within the ARMM, especially the local government units;

5.       Coordinate with other national and regional government departments, agencies, institutions and organizations, especially the local government units within the ARMM in the planning and implementation of infrastructure projects;

6.       Conduct continuing consultations with the local communities, take appropriate measures to make the services of the Autonomous Regional Government responsive to the needs of the general public and recommend such appropriate actions as may be necessary; and

Page 53: Municipal Corporations

Disomangcop vs. Datumanong7.       Perform such other related duties and responsibilities within the ARMM as may be assigned or delegated by the Regional Governor or as may be provided by law. (Emphasis supplied)

More importantly, Congress itself through R.A. 9054 transferred and devolved the administrative and fiscal management of public works and funds for public works to the ARG. Section 20, Article VI of R.A. 9054 provides:

ARTICLE VI

THE LEGISLATIVE DEPARTMENT

SEC. 20. Annual Budget and Infrastructure Funds. – The annual budget of the Regional Government shall be enacted by Regional Assembly. Funds for infrastructure in the autonomous region allocated by the central government or national government shall be appropriated through a Regional Assembly Public Works Act.

Unless approved by the Regional Assembly, no public works funds allocated by the central government or national government for the Regional Government or allocated by the Regional Government from its own revenues may be disbursed, distributed, realigned, or used in any manner.

The aim of the Constitution is to extend to the autonomous peoples, the people of Muslim Mindanao in this case, the right to self-determination—a right to choose their own path of development; the right to determine the political, cultural and economic content of their development path within the framework of the sovereignty and territorial integrity of the Philippine Republic. [80] Self-determination refers to the need for a political structure that will respect the autonomous peoples’ uniqueness and grant them sufficient room for self-expression and self-construction.[81]

In treading their chosen path of development, the Muslims in Mindanao are to be given freedom and independence with minimum interference from the National Government. This necessarily includes the freedom to decide on, build, supervise and maintain the public works and infrastructure projects within the autonomous region. The devolution of the powers and functions of the DPWH in the ARMM and transfer of the administrative and fiscal management of public works and funds to the ARG are meant to be true, meaningful and unfettered. This unassailable conclusion is grounded on a clear consensus, reached at the Constitutional Commission and ratified by the entire Filipino electorate, on the centrality of decentralization of power as the appropriate vessel of deliverance for Muslim Filipinos and the ultimate unity of Muslims and Christians in this country.

With R.A. 8999, however, this freedom is taken away, and the National Government takes control again. The hands, once more, of the autonomous peoples are reined in and tied up.

The challenged law creates an office with functions and powers which, by virtue of E.O. 426, have been previously devolved to the DPWH-ARMM, First Engineering District in Lanao del Sur.

E.O. 426 clearly ordains the transfer of the control and supervision of the offices of the DPWH within the ARMM, including their functions, powers and responsibilities, personnel, equipment, properties, and budgets to the ARG. Among its other functions, the DPWH-ARMM, under the control of the Regional Government shall be responsible for highways, flood control and water resource development systems,

Page 54: Municipal Corporations

Disomangcop vs. Datumanongand other public works within the ARMM. Its scope of power includes the planning, design, construction and supervision of public works.  According to R.A. 9054, the reach of the Regional Government enables it to appropriate, manage and disburse all public work funds allocated for the region by the central government.

The use of the word “powers” in E.O. 426 manifests an unmistakable case of devolution.

In this regard, it is not amiss to cite Opinion No. 120, S. 1991 [82] of the Secretary of Justice on whether the national departments or their counterpart departments in the ARG are responsible for implementation of roads, rural water supply, health, education, women in development, agricultural extension and watershed management. Referring to Section 2, Article V of R.A. 6734 which enumerates the powers of the ARG, he states:

It is clear from the foregoing provision of law that except for the areas of executive power mentioned therein, all other such areas shall be exercised by the Autonomous Regional Government (“ARG”) of the Autonomous Region in Muslim Mindanao. It is noted that programs relative to infrastructure facilities, health, education, women in development, agricultural extension and watershed management do not fall under any of the exempted areas listed in the abovequoted provision of law. Thus, the inevitable conclusion is that all these spheres of executive responsibility have been transferred to the ARG.

Reinforcing the aboveview (sic) are the various executive orders issued by the President providing for the devolution of the powers and functions of specified executive departments of the National Government to the ARG. These are E.O. Nos. 425 (Department of Labor and Employment, Local Government, Tourism, Environment and Natural Resources, Social Welfare and Development and Science and Technology), 426 (Department of Public Works and Highways), 459 (Department of Education, Culture and Sports) and 460 (Department of Agriculture).  The execution of projects on infrastructure, education, women, agricultural extension and watershed management within the Autonomous Region of Muslim Mindanao normally fall within the responsibility of one of the aforementioned executive departments of the National Government, but by virtue of the aforestated EOs, such responsibility has been transferred to the ARG.

E.O. 426 was issued to implement the provisions of the first ARMM Organic Act, R.A. 6734—the validity of which this Court upheld in the case of Abbas v. Commission on Elections.[83] In Section 4, Article XVIII of said Act, “central government or national government offices and agencies in the autonomous region which are not excluded under Section 3, Article IV [84] of this Organic Act, shall be placed under the control and supervision of the Regional Government pursuant to a schedule prescribed by the oversight committee.”

Evidently, the intention is to cede some, if not most, of the powers of the national government to the autonomous government in order to effectuate a veritable autonomy. The continued enforcement of R.A. 8999, therefore, runs afoul of the ARMM Organic Acts and results in the recall of powers which have previously been handed over. This should not be sanctioned, elsewise the Organic Acts’ desire for greater autonomy for the ARMM in accordance with the Constitution would be quelled. It bears stressing that national laws are subject to the Constitution one of whose state policies is to ensure the autonomy of autonomous regions. Section 25, Article II of the 1987 Constitution states:

Sec. 25.  The State shall ensure the autonomy of local governments.

Page 55: Municipal Corporations

Disomangcop vs. DatumanongR.A. 8999 has made the DPWH-ARMM effete and rendered regional autonomy illusory with respect

to infrastructure projects. The Congressional Record shows, on the other hand, that the “lack of an implementing and monitoring body within the area” has hindered the speedy implementation, of infrastructure projects.[85] Apparently, in the legislature’s estimation, the existing DPWH-ARMM engineering districts failed to measure up to the task. But if it was indeed the case, the problem could not be solved through the simple legislative creation of an incongruous engineering district for the central government in the ARMM.  As it was, House Bill No. 995 which ultimately became R.A. 8999 was passed in record time on second reading (not more than 10 minutes), absolutely without the usual sponsorship speech and debates.[86] The precipitate speed which characterized the passage of R.A. 8999 is difficult to comprehend since R.A. 8999 could have resulted in the amendment of the first ARMM Organic Act and, therefore, could not take effect without first being ratified in a plebiscite.  What is more baffling is that in March 2001, or barely two (2) months after it enacted R.A. 8999 in January 2001, Congress passed R.A. 9054, the second ARMM Organic Act, where it reaffirmed the devolution of the DPWH in ARMM, including Lanao del Sur and Marawi City, to the Regional Government and effectively repealed R.A. 8999.

DPWH Department Order No. 119

Now, the question directly related to D.O. 119.

D.O. 119 creating the Marawi Sub-District Engineering Office which has jurisdiction over infrastructure projects within Marawi City and Lanao del Sur is violative of the provisions of E.O. 426.   The Executive Order was issued pursuant to R.A. 6734—which initiated the creation of the constitutionally-mandated autonomous region[87] and which defined the basic structure of the autonomous government.[88] E.O. 426 sought to implement the transfer of the control and supervision of the DPWH within the ARMM to the Autonomous Regional Government. In particular, it identified four (4) District Engineering Offices in each of the four (4) provinces, namely: Lanao del Sur, Maguindanao, Sulu and Tawi-Tawi.[89] Accordingly, the First Engineering District of the DPWH-ARMM in Lanao del Sur has jurisdiction over the public works within the province.

The office created under D.O. 119, having essentially the same powers, is a duplication of the DPWH-ARMM First Engineering District in Lanao del Sur formed under the aegis of E.O. 426.  The department order, in effect, takes back powers which have been previously devolved under the said executive order. D.O. 119 runs counter to the provisions of E.O. 426.  The DPWH’s order, like spring water, cannot rise higher than its source of power—the Executive.

The fact that the department order was issued pursuant to E.O. 124—signed and approved by President Aquino in her residual legislative powers—is of no moment.  It is a finely-imbedded principle in statutory construction that a special provision or law prevails over a general one. [90] Lex specialis derogant generali.  As this Court expressed in the case of Leveriza v. Intermediate Appellate Court,[91] “another basic principle of statutory construction mandates that general legislation must give way to special legislation on the same subject, and generally be so interpreted as to embrace only cases in which the special provisions are not applicable, that specific statute prevails over a general statute and that where two statutes are of equal theoretical application to a particular case, the one designed therefor specially should prevail.”

E.O. No. 124, upon which D.O. 119 is based, is a general law reorganizing the Ministry of Public Works and Highways while E.O. 426 is a special law transferring the control and supervision of the DPWH offices within ARMM to the Autonomous Regional Government. The latter statute specifically applies to DPWH-ARMM offices. E.O. 124 should therefore give way to E.O. 426 in the instant case.

In any event, the ARMM Organic Acts and their ratification in a plebiscite in effect superseded E.O. 124. In case of an irreconcilable conflict between two laws of different vintages, the later enactment prevails because it is the later legislative will.[92]

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Disomangcop vs. DatumanongFurther, in its repealing clause, R.A. 9054 states that “all laws, decrees, orders, rules and

regulations, and other issuances or parts thereof, which are inconsistent with this Organic Act, are hereby repealed or modified accordingly.”[93] With the repeal of E.O. 124 which is the basis of D.O. 119, it necessarily follows that D.O. 119 was also rendered functus officio by the ARMM Organic Acts.

Grave abuse of discretion

Without doubt, respondents committed grave abuse of discretion. They implemented R.A. 8999 despite its inoperativeness and repeal.  They also put in place and maintained the DPWH Marawi Sub-District Engineering Office in accordance with D.O. 119 which has been rendered functus officio by the ARMM Organic Acts.

Still, on the issue of grave abuse of discretion, this Court, however, cannot uphold petitioners’ argument that R.A. 8999 was signed into law under suspicious circumstances to support the assertion that there was a capricious and whimsical exercise of legislative authority. Once more, this Court cannot inquire into the wisdom, merits, propriety or expediency of the acts of the legislative branch.

Likewise, the alleged lack of consultation or public hearing with the affected agency during the inception of the law does not render the law infirm.  This Court holds that the Congress did not transgress the Constitution nor any statute or House Rule in failing to invite a resource person from the DPWH-ARMM during the Committee meeting. Section 27, Rule VII of the Rules of the House [94] only requires that a written notice be given to all the members of a Committee seven (7) calendar days before a regularly scheduled meeting, specifying the subject matter of the meeting and the names of the invited resource persons. And it must be emphasized that the questions of who to invite and whether there is a need to invite resource persons during Committee meetings should be addressed solely to Congress in its plenary legislative powers.[95]

Conclusion

The repeal of R.A. 8999 and the functus officio state of D.O. 119 provide the necessary basis for the grant of the writs of certiorari and prohibition sought by the petitioners. However, there is no similar basis for the issuance of a writ of mandamus to compel respondent DBM Secretary to release funds appropriated for public works projects in Marawi City and Lanao del Sur to the DPWH-ARMM First Engineering District in Lanao del Sur and  to  compel respondent DPWH Secretary to allow the DPWH-ARMM, First Engineering District in Lanao del Sur to implement all public works projects within its jurisdictional area. Section 20, Article VI of R.A. 9054 clearly provides that “(f)unds for infrastructure in the autonomous region allocated by the central government or national government shall only be appropriated through a Regional Assembly Public Works Act” passed by the Regional Assembly.  There is no showing that such Regional Assembly Public Works Act has been enacted.

WHEREFORE, considering that Republic Act No. 9054 repealed Republic Act No. 8999 and rendered DPWH Department Order No. 119 functus officio, the petitioninsofar as it seeks the writs of certiorari and prohibition is GRANTED.  Accordingly, let a writ of prohibition ISSUE commanding respondents to desist from implementing R.A. 8999 and D.O. 119, and maintaining the DPWH Marawi Sub-District Engineering Office and the First Engineering District of the Province of Lanao del Sur comprising the City of Marawi and the municipalities within the First District of Lanao del Sur. However, the petition insofar as it seeks a writ of mandamus against respondents is DENIED.

No costs.

SO ORDERED.

Page 57: Municipal Corporations

Province of Rizal vs. Executive Secretary

EN BANC       

PROVINCE OF RIZAL, MUNICIPALITY OF SAN MATEO, PINTONG BOCAUE MULTIPURPOSE COOPERATIVE, CONCERNED CITIZENS OF RIZAL, INC., ROLANDO E. VILLACORTE, BERNARDO HIDALGO, ANANIAS EBUENGA, VILMA T. MONTAJES, FEDERICO MUNAR, JR., ROLANDO BEÑAS, SR., ET AL., and KILOSBAYAN, INC.,

P e t i t i o n e r s,

- versus -

EXECUTIVE SECRETARY, SECRETARY OF ENVIRONMENT & NATURAL RESOURCES, LAGUNA LAKE DEVELOPMENT AUTHORITY, SECRETARY OF PUBLIC WORKS & HIGHWAYS, SECRETARY OF BUDGET & MANAGEMENT, METRO MANILA DEVELOPMENT AUTHORITY and THE HONORABLE COURT OF APPEALS,

          R e s p o n d e n t s.

  G.R. No. 129546  Present:

DAVIDE, JR., C. J.,

PUNO,

PANGANIBAN,

QUISUMBING,

YNARES-SANTIAGO,

SANDOVAL-GUTIERREZ,

CARPIO,

MARTINEZ,

CORONA,

CARPIO MORALES,

CALLEJO, SR.,

AZCUNA,

TINGA,

CHICO-NAZARIO, and

GARCIA, JJ.

Page 58: Municipal Corporations

Province of Rizal vs. Executive Secretary

Promulgated:

December 13, 2005

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

D E C I S I O N

CHICO-NAZARIO, J.:

The earth belongs in usufruct to the living.[1]

At the height of the garbage crisis plaguing Metro Manila and its environs, parts of the

Marikina Watershed Reservation were set aside by the Office of the President, through

Proclamation No. 635 dated 28 August 1995, for use as a sanitary landfill and similar waste

disposal applications. In fact, this site, extending to more or less 18 hectares, had already been in

operation since 19 February 1990[2] for the solid wastes of Quezon City, Marikina, San Juan,

Mandaluyong, Pateros, Pasig, and Taguig.[3]

Page 59: Municipal Corporations

Province of Rizal vs. Executive Secretary

This is a petition filed by the Province of Rizal, the municipality of San Mateo, and various

concerned citizens for review on certiorari of the Decision of the Court of Appeals in CA-G.R. SP

No. 41330, denying, for lack of cause of action, the petition for certiorari, prohibition

and mandamus with application for a temporary restraining order/writ of preliminary injunction

assailing the legality and constitutionality of Proclamation No. 635.

The facts are documented in painstaking detail.

On 17 November 1988, the respondent Secretaries of the Department of Public Works and

Highways (DPWH) and the Department of Environment and Natural Resources (DENR) and the

Governor of the Metropolitan Manila Commission (MMC) entered into a Memorandum of

Agreement (MOA),[4] which provides in part:

1. The DENR agrees to immediately allow the utilization by the Metropolitan Manila Commission of its land property located at Pintong Bocaue in San Mateo, Rizal as a sanitary landfill site, subject to whatever restrictions that the government impact assessment might require.

2. Upon signing of this Agreement, the DPWH shall commence the construction/development of said dumpsite.

3. The MMC shall: a) take charge of the relocation of the families within and around the site; b) oversee the development of the areas as a sanitary landfill; c) coordinate/monitor the construction of infrastructure facilities by the DPWH in the said site; and d) ensure that the necessary civil works are properly undertaken to safeguard against any negative environmental impact in the area.

Page 60: Municipal Corporations

Province of Rizal vs. Executive Secretary

On 7, 8 and 10 February 1989, the Sangguniang Bayan of San Mateo wrote Gov. Elfren

Cruz of the MMC, Sec. Fiorello Estuar of the DPWH, the Presidential Task Force on Solid Waste

Management, Executive Secretary Catalino Macaraig, and Sec. Fulgencio Factoran, Jr., pointing

out that it had recently passed a Resolution banning the creation of dumpsites for Metro Manila

garbage within its jurisdiction, asking that their side be heard, and that the addressees “suspend

and temporarily hold in abeyance all and any part of your operations with respect to the San

Mateo Landfill Dumpsite.” No action was taken on these letters.

It turns out that the land subject of the MOA of 17 November 1988 and owned by the

DENR was part of the Marikina Watershed Reservation Area. Thus, on 31 May 1989, forest

officers of the Forest Engineering and Infrastructure Unit of the Community Environment and

Natural Resource Office, (CENRO) DENR-IV, Rizal Province, submitted a Memorandum[5] on the

“On-going Dumping Site Operation of the MMC inside (the) Upper Portion of Marikina

Watershed Reservation, located at Barangay Pintong Bocaue, San Mateo, Rizal, and nearby

localities.” Said Memorandum reads in part:

Observations:

3.1 The subject area is arable and agricultural in nature;

3.2 Soil type and its topography are favorable for agricultural and forestry productions;

. . .

3.5 Said Dumping Site is observed to be confined within the said Watershed Reservation, bearing in the northeastern part of Lungsod Silangan Townsite Reservation. Such   illegal  Dumping  Site  operation   inside   (the)  Watershed Reservation  is   in  violation of  P.D.  705,  otherwise  known as   the Revised Forestry Code, as amended. . .

Page 61: Municipal Corporations

Province of Rizal vs. Executive Secretary

Recommendations:

5.1 The MMC Dumping Site Inside Marikina Watershed Reservation, particularly at Brgy. Pintong Bocaue, San Mateo, Rizal and at Bo. Pinugay, Baras/Antipolo, Rizal which are the present garbage zones must   totally   be   stopped   and discouraged without any political intervention and delay in order to save our healthy ecosystems found therein, to avoid much destruction, useless efforts and lost (sic) of millions of public funds over the land in question; (Emphasis ours)

On 19 June 1989, the CENRO submitted another Investigation Report [6] to the Regional

Executive Director which states in part that:

1. About two (2) hectares had been excavated by bulldozers and garbage dumping operations are going on.

2. The dumping site is without the concurrence of the Provincial Governor, Rizal Province and without any permit from DENR who has functional jurisdiction over the Watershed Reservation; and

3. About 1,192 families residing and cultivating areas covered by four (4) Barangays surrounding the dumping site will adversely be affected by the dumping operations of MMC including their sources of domestic water supply. x x x x

Page 62: Municipal Corporations

Province of Rizal vs. Executive Secretary

On 22 January 1990, the CENRO submitted still another Investigation Report [7] to the

Regional Executive Director which states that:

Findings show that the areas used as Dumping Site of the MMC are found to be within the Marikina Watershed which are part of the Integrated Social Forestry Project (ISF) as per recorded inventory of Forest Occupancy of this office.

It also appears that as per record, there was no permit issued to the MMC to utilize these portions of land for dumping purposes.

It is further observed that the use of the areas as dumping site greatly affects the ecological balance and environmental factors in this community.

On 19 February 1990, the DENR Environmental Management Bureau, through

Undersecretary for Environment and Research Celso R. Roque, granted the Metro Manila

Authority (MMA [formerly MMC]) an Environmental Compliance Certificate (ECC) for the

operation of a two-and-a-half-hectare garbage dumpsite.

The ECC was sought and granted to comply with the requirement of Presidential Decree

No. 1586 “Establishing an Environmental Impact Statement System,” Section 4 of which states in

part that, “No persons, partnership or corporation shall undertake or operate any such declared

environmentally critical project or area without first securing an Environmental Compliance

Certificate.” Proclamation No. 2146, passed on 14 December 1981, designates “all areas

declared by law as national parks, watershed reserves, wildlife preserves, and sanctuaries” as

“Environmentally Critical Areas.”

Page 63: Municipal Corporations

Province of Rizal vs. Executive Secretary

On 09 March 1990, respondent Laguna Lake Development Authority (LLDA), through its

Acting General Manager, sent a letter[8] to the MMA, which reads in part:

Through this letter we would like to convey our reservation on the choice of the sites for solid waste disposal inside the watershed of Laguna Lake. As you may already know, the Metropolitan Waterworks and Sewerage System (MWSS) has scheduled the abstraction of water from the lake to serve the needs of about 1.2 million residents of Muntinlupa, Paranaque, Las Pinas and Bacoor, Cavite by 1992. Accordingly, the Laguna Lake Development Authority (LLDA) is accelerating its environmental   management program to upgrade the water quality of the lake in order to make it suitable as a source of domestic water supply the whole year round. The said program regards dumpsites as incompatible within the watershed because of the heavy pollution, including the risk of diseases, generated by such activities which would negate the government’s efforts to upgrade the water quality of the lake.  Consequently, please consider our objection to the proposed location of the dumpsites within the watershed. (Emphasis supplied by petitioners)

On 31 July 1990, less than six months after the issuance of the ECC, Undersecretary Roque

suspended the ECC in a letter[9] addressed to the respondent Secretary of DPWH, stating in part

that:

Upon site investigation conducted by Environmental Management Bureau staff on development activities at the San Mateo Landfill Site, it  was  ascertained   that   ground slumping and erosion have resulted from improper development of the site. We believe that this will adversely affect the environmental quality in the area if the proper remedial measures are not instituted in the design of the landfill site. This is therefore contradictory to statements made in the Environmental Impact Statement (EIS) submitted that above occurrences will be properly mitigated.

In view of this, we are forced to suspend the Environmental Compliance Certificate (ECC) issued until appropriate modified plans are submitted and approved by this Office for implementation. (Emphasis ours)

Page 64: Municipal Corporations

Province of Rizal vs. Executive Secretary

On 21 June 1993, the Acting Mayor of San Mateo, Enrique Rodriguez, Jr., Barangay Captain

Dominador Vergara, and petitioner Rolando E. Villacorte, Chairman of the Pintong Bocaue

Multipurpose Cooperative (PBMC) wrote[10] then President Fidel V. Ramos expressing their

objections to the continued operation of the MMA dumpsite for causing “unabated pollution and

degradation of the Marikina Watershed Reservation.”

On 14 July 1993, another Investigation Report[11] submitted by the Regional Technical

Director to the DENR Undersecretary for Environment and Research contained the following

findings and recommendations:

Remarks and Findings:

. . . .

5. Interview with Mr. Dayrit, whose lot is now being endangered because soil erosion have (sic) caused severe siltation and sedimentation of the Dayrit Creek which water is greatly polluted by the dumping of soil bulldozed to the creek;

6. Also interview with Mrs. Vilma Montajes, the multi-grade teacher of Pintong Bocaue Primary School which is located only about 100 meters from the landfill site. She disclosed that bad odor have (sic) greatly affected the pupils who are sometimes sick with respiratory illnesses. These odors show that MMA have (sic) not instituted/sprayed any disinfectant chemicals to prevent air pollution in the area. Besides large flies (Bangaw) are swarming all over the playground of the school. The teacher also informed the undersigned that plastic debris are being blown whenever the wind blows in their direction.

Page 65: Municipal Corporations

Province of Rizal vs. Executive Secretary 7. As per investigation report … there are now 15 hectares being used as landfill

disposal sites by the MMA. The MMA is intending to expand its operation within the 50 hectares.

8. Lots occupied within 50 hectares are fully planted with fruit bearing trees like Mangoes, Santol, Jackfruit, Kasoy, Guyabano, Kalamansi and Citrus which are now bearing fruits and being harvested and marketed to nearby San Mateo Market and Masinag Market in Antipolo.

. . . .

Recommendations:

1. As previously recommended, the undersigned also strongly recommend(s) that the MMA be made to relocate the landfill site because the area is within the Marikina Watershed Reservation and Lungsod Silangan. The leachate treatment plant ha(s) been eroded twice already and contaminated the nearby creeks which is the source of potable water of the residents. The contaminated water also flows to Wawa Dam and Boso-boso River which also flows to Laguna de Bay.

2. The proposed Integrated Social Forestry Project be pushed through or be approved. ISF project will not only uplift the socio-economic conditions of the participants but will enhance the rehabilitation of the Watershed considering that fruit bearing trees are vigorously growing in the area. Some timber producing species are also planted like Mahogany and Gmelina Arboiea. There are also portions where dipterocarp residuals abound in the area.

3. The sanitary landfill should be relocated to some other area, in order to avoid any conflict with the local government of San Mateo and the nearby affected residents who have been in the area for almost 10-20 years.

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On 16 November 1993, DENR Secretary Angel C. Alcala sent MMA Chairman Ismael A.

Mathay, Jr. a letter[12] stating that “after a series of investigations by field officials” of the DENR,

the agency realized that the MOA entered into on 17 November 1988 “is a very costly error

because the area agreed to be a garbage dumpsite is inside the Marikina Watershed

Reservation.” He then strongly recommended that all facilities and infrastructure in the garbage

dumpsite in Pintong Bocaue be dismantled, and the garbage disposal operations be transferred

to another area outside the Marikina Watershed Reservation to protect “the health and general

welfare of the residents of San Mateo in particular and the residents of Metro Manila in general.”

On 06 June 1995, petitioner Villacorte, Chairman of the PBMC, wrote [13] President Ramos,

through the Executive Secretary, informing the President of the issues involved, that the

dumpsite is located near three public elementary schools, the closest of which is only fifty meters

away, and that its location “violates the municipal zoning ordinance of San Mateo and, in truth,

the Housing and Land Use Regulatory Board had denied the then MMA chairman’s application for

a locational clearance on this ground.”

On 21 August 1995, the Sangguniang Bayan of San Mateo issued a

Resolution[14] “expressing a strong objection to the planned expansion of the landfill operation in

Pintong Bocaue and requesting President Ramos to disapprove the draft Presidential

Proclamation segregating 71.6 Hectares from Marikina Watershed Reservation for the landfill site

in Pintong Bocaue, San Mateo, Rizal.”

Despite the various objections and recommendations raised by the government agencies

aforementioned, the Office of the President, through Executive Secretary Ruben Torres, signed

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and issued Proclamation No. 635 on 28 August 1995, “Excluding from the Marikina Watershed

Reservation Certain Parcels of Land Embraced Therein for Use as Sanitary Landfill Sites and

Similar Waste Disposal Under the Administration of the Metropolitan Manila Development

Authority.” The pertinent portions thereof state:

WHEREAS, to cope with the requirements of the growing population in Metro Manila and the adjoining provinces and municipalities, certain developed and open portions of the Marikina Watershed Reservation, upon the recommendation of the Secretary of the Department of Environment and Natural Resources should now be excluded form the scope of the reservation;

WHEREAS, while the areas delineated as part of the Watershed Reservations are intended primarily for use in projects and/or activities designed to contain and preserve the underground water supply, other peripheral areas had been included within the scope of the reservation to provide for such space as may be needed for the construction of the necessary structures, other related facilities, as well as other priority projects of government as may be eventually determined;

WHEREAS, there is now an urgent need to provide for, and develop, the necessary facilities for the disposal of the waste generated by the population of Metro Manila and the adjoining provinces and municipalities, to ensure their sanitary and /or hygienic disposal;

WHEREAS, to cope with the requirements for the development of the waste disposal facilities that may be used, portions of the peripheral areas of the Marikina Watershed Reservation, after due consideration and study, have now been identified as suitable sites that may be used for the purpose;

WHEREAS, the Secretary of the Department of Environment and Natural Resources has recommended the exclusion of these areas that have been so identified from the Marikina Watershed Reservation so that they may then be developed for the purpose;

Page 68: Municipal Corporations

Province of Rizal vs. Executive Secretary NOW, THEREFORE, for and in consideration of the aforecited premises, I, Fidel V.

Ramos, President of the Philippines, by virtue of the powers vested in me by law, do hereby ordain:

Section 1. General – That certain parcels of land, embraced by the Marikina Watershed Reservation, were found needed for use in the solid waste disposal program of the government in Metropolitan Manila, are hereby excluded from that which is held in reserve and are now made available for use as sanitary landfill and such other related waste disposal applications.

Section 2. Purpose – The areas being excluded from the Marikina Watershed Reservation are hereby placed under the administration of the Metropolitan Manila Development Authority, for development as Sanitary Landfill, and/or for use in the development of such other related waste disposal facilities that may be used by the cities and municipalities of Metro Manila and the adjoining province of Rizal and its municipalities.

Section 3. Technical Description – Specifically, the areas being hereby excluded from the Marikina Watershed Reservation consist of two (2) parcels, with an aggregate area of approximately ONE MILLION SIXTY THOUSAND FIVE HUNDRED TWENTY NINE (1,060,529) square meters more or less, as follows: x x x x

Section 4. Reservations – The development, construction, use and/or operation of any facility that may be established within the parcel of land herein excluded from the Marikina Watershed Reservation shall be governed by existing laws, rules and regulations pertaining to environmental control and management. When no longer needed for sanitary landfill purposes or the related waste disposal activities, the parcels of land subject of this proclamation shall revert back as part of the Marikina Watershed Reservation, unless otherwise authorized.

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On 06 September 1995, Director Wilfrido S. Pollisco of the Protected Areas and Wildlife

Bureau wrote the DENR Secretary to express the bureau’s stand against the dumpsite at Pintong

Bocaue, and that “it is our view . . . that the mere presence of a garbage dumpsite inside a

watershed reservation is definitely not compatible with the very purpose and objectives for

which the reservation was established.”

On 24 November 1995, the petitioners Municipality of San Mateo and the residents of

Pintong Bocaue, represented by former Senator Jovito Salonga, sent a letter to President Ramos

requesting him to reconsider Proclamation No. 635. Receiving no reply, they sent another letter

on 02 January 1996 reiterating their previous request.

On 04 March 1996, then chairman of the Metro Manila Development Authority (MMDA

[formerly MMA]) Prospero I. Oreta addressed a letter to Senator Salonga, stating in part that:

….

2. Considering the circumstances under which we are pursuing the project, we are certain you will agree that, unless we are prepared with a better alternative, the project simply has to be pursued in the best interest of the greater majority of the population, particularly their health and welfare.”

2.1 The San Mateo Sanitary Landfill services, at least, 38% of the waste disposal site requirements of Metro Manila where an estimated 9 million population reside.

2.2 Metro Manila is presently estimated to be generating, at least, 15,700 cubic meters of household or municipal waste, a 1.57 hectare of land area will be filled in a month’s time with a pile 31 meters high of garbage, or in a year, the accumulated volume will require 18.2 hectares.

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. . . .

4. The sanitary landfill projects are now on their fifth year of implementation. The amount of effort and money already invested in the project by the government cannot easily be disregarded, much more set aside in favor of the few settlers/squatters who chose to ignore the earlier notice given to them that the area would be used precisely for the development of waste disposal sites, and are now attempting to arouse opposition to the project.

4.2 There is no place within the jurisdiction of Metro Manila, with an area big enough to accommodate at least 3 to 5 years of waste disposal requirements. x x x x

4.21 The present site at San Mateo was selected because, at the time consideration was being made, and up to the present, it is found to have the attributes that positively respond to the criteria established:

4.21.1 The site was a government property and would not require any outlay for it to be acquired.

4.21.2 It is far from any sizeable community/settlements that could be affected by the development that would be introduced and yet, was within economic hauling distance from the areas they are designed to serve.

4.21.21 At the time it was originally decided to locate the landfills at the present site, there were not more that fifteen (15) settlers in the area and they had hardly established themselves. The community settlements were located far from the site.

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Province of Rizal vs. Executive Secretary 4.21.22 The area was hardly accessible, especially to any public transport.

The area was being served by a public utility jeep that usually made only two (2) trips daily. During the rainy season, it could only be reached by equipping the vehicle with tire chains to traverse the slippery muddy trail roads.

4.21.3 There was, at least, seventy-three (73) hectares available at the site.

4.3 While the site was within the Marikina Watershed Reservation under the administration of the DENR, the site was located at the lower periphery of the buffer zone; was evaluated to be least likely to affect the underground water supply; and could, in fact, be excluded from the reservation.

4.31 It was determined to be far from the main water containment area for it to pose any immediate danger of contaminating the underground water, in case of a failure in any of the mitigating measures that would be installed.

4.32 It was likewise too far from the nearest body of water, the Laguna Lake, and the distance, plus the increasing accumulation of water from other tributaries toward the lake, would serve to dilute and mitigate any contamination it may emit, in case one happened.

4.33 To resolve the recurring issue regarding its being located within the Marikina Watershed Reservation, the site had been recommended by the DENR, and approved by the President, to already be excluded from the Marikina Watershed reservation and placed under the administration of MMDA, since the site was deemed to form part of the land resource reserve then commonly referred to as buffer zone.

5. Contrary to the impression that you had been given, relocating the site at this point and time would not be easy, if not impracticable, because aside from the investments that had been made in locating the present site, further investments have been incurred in:

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5.1 The conduct of the technical studies for the development being implemented. Through a grant-in-aid from the World Bank, US$600,000 was initially spent for the conduct of the necessary studies on the area and the design of the landfill. This was augmented by, at least, another P1.5 million from the government for the studies to be completed, or a total cost at the time (1990) of approximately P20 million.

5.2. Additionally, the government has spent approximately P33 million in improving on the roadway to make the site accessible from the main road/highway.

5.3 To achieve the necessary economies in the development of the site, the utilities had been planned so that their use could be maximized. These include the access roads, the drainage system, the leacheate collection system, the gas collection system, and the waste water treatment system. Their construction are designed so that instead of having to construct independent units for each area, the use of existing facilities can be maximized through a system of interconnection. On the average, the government is spending P14.8 million to develop a hectare of sanitary landfill area.

6. Despite the preparations and the investments that are now being made on the project, it is estimated that the total available area, at an accelerated rate of disposal, assuming that all open dump sites were to be closed, will only last for 39 months.

6.1 We are still hard pressed to achieve advanced development on the sites to assure against any possible crisis in garbage from again being experienced in Metro Manila, aside from having to look for the additional sites that may be used after the capacities shall have been exhausted.

6.2 Faced with the prospects of having the 15,700 cubic meters of garbage generated daily strewn all over Metro Manila, we are certain you will agree that it would be futile to even as much as consider a suspension of the waste disposal operations at the sanitary landfills.

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Province of Rizal vs. Executive Secretary

On 22 July 1996, the petitioners filed before the Court of Appeals a civil action

for certiorari, prohibition and mandamus with application for a temporary restraining order/writ

of preliminary injunction. The hearing on the prayer for preliminary injunction was held on 14

August 1996.

On 13 June 1997, the court a quo rendered a Decision,[15] the dispositive part of which

reads:

WHEREFORE, the petition for certiorari, prohibition and mandamus with application for a temporary restraining order/writ of preliminary injunction for lack of cause of action, is hereby DENIED.[16]

Hence, this petition for review on certiorari of the above decision on the following

grounds:

I

THE COURT OF APPEALS ERRED AND ABUSED ITS DISCRETION IN DELIBERATELY IGNORING THE SIGNIFICANT FACT THAT PRESIDENTIAL PROCLAMATION NO. 635 WAS BASED ON A BRAZEN FORGERY – IT WAS SUPPOSEDLY ISSUED, AS STATED IN THE PROCLAMATION ITSELF AND REPEATEDLY ASSERTED BY RESPONDENTS IN THEIR COMMENT, ON THE BASIS OF THE ALLEGED RECOMMENDATION OF THE DENR SECRETARY DATED JUNE 26, 1995 BUT WHICH ASSERTION WAS DENOUNCED BY THE THEN SECRETARY ANGEL C. ALCALA HIMSELF – IN A SWORN STATEMENT DATED SEPTEMBER 18, 1996 AND AGAIN DURING THE SPECIAL HEARING OF THE CASE IN THE COURT OF APPEALS ON NOVEMBER 13, 1996 – AS A

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Province of Rizal vs. Executive Secretary FORGERY SINCE HIS SIGNATURE ON THE ALLEGED RECOMMENDATION HAD BEEN FALSIFIED, AS NOW ADMITTED BY RESPONDENTS THEMSELVES IN THEIR COMMENT FILED WITH THE COURT OF APPEALS, THROUGH THE OFFICE OF THE SOLICITOR GENERAL.

II

THE COURT OF APPEALS ERRED AND ABUSED ITS DISCRETION IN COMPLETELY IGNORING THE SIGNIFICANT FACT THAT THE RESPONDENTS ARE OPERATING THE LANDFILL BASED ON A SPURIOUS ENVIRONMENTAL COMPLIANCE CERTIFICATE.

III

THE COURT OF APPEALS ERRED IN RULING THAT THE RESPONDENTS DID NOT VIOLATE R.A. 7586 WHEN THEY ISSUED AND IMPLEMENTED PROCLAMATION NO. 635 CONSIDERING THAT THE WITHDRAWAL OR DISESTABLISHMENT OF A PROTECTED AREA OR THE MODIFICATION OF THE MARIKINA WATERSHED CAN ONLY BE DONE BY AN ACT OF CONGRESS.

IV

THE COURT OF APPEALS ERRED AND ABUSED ITS DISCRETION WHEN IT DELIBERATELY AND WILLFULLY BRUSHED ASIDE THE UNANIMOUS FINDINGS AND ADVERSE RECOMMENDATIONS OF RESPONSIBLE GOVERNMENT AGENCIES AND NON-PARTISAN OFFICIALS CONCERNED WITH ENVIRONMENTAL PROTECTION IN FAVOR OF THE SELF-SERVING, GRATUITOUS ASSERTIONS FOUND IN THE UNSOLICITED, PARTISAN LETTER OF FORMER MALABON MAYOR, NOW CHAIRMAN PROSPERO ORETA OF THE MMDA WHO IS AN INTERESTED PARTY IN THIS CASE.

V

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THE COURT OF APPEALS ERRED WHEN IT READILY SWALLOWED RESPONDENTS’ ASSERTION THAT THE SAN MATEO DUMPSITE “IS LOCATED IN THE ‘BUFFER ZONE’ OF THE RESERVATION” AND IS THEREFORE OUTSIDE OF ITS BOUNDARIES, AND EVEN DECLARED IN ITS DECISION THAT IT TOOK “SERIOUS NOTE” OF THIS PARTICULAR ARGUMENT.

VI

THE COURT OF APPEALS ERRED AND ABUSED ITS DISCRETION WHEN IT ENCROACHED ON THE FUNCTION OF CONGRESS BY EXPRESSING ITS UNJUSTIFIED FEAR OF MINI-SMOKEY MOUNTAINS PROLIFERATING IN METRO MANILA AND JUSTIFYING ITS DECISION IN FAVOR OF “AN INTEGRATED SYSTEM OF SOLID WASTE MANAGEMENT LIKE THE SAN MATEO LANDFILL.

On 05 January 1998, while the appeal was pending, the petitioners filed a Motion for

Temporary Restraining Order,[17] pointing out that the effects of the El Niño phenomenon would

be aggravated by the relentless destruction of the Marikina Watershed Reservation. They noted

that respondent MMDA had, in the meantime, continued to expand the area of the dumpsite

inside the Marikina Watershed Reservation, cutting down thousands of mature fruit trees and

forest trees, and leveling hills and mountains to clear the dumping area. Garbage disposal

operations were also being conducted on a 24-hour basis, with hundreds of metric tons of wastes

being dumped daily, including toxic and infectious hospital wastes, intensifying the air, ground

and water pollution.[18]

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The petitioners reiterated their prayer that respondent MMDA be temporarily enjoined

from further dumping waste into the site and from encroaching into the area beyond its existing

perimeter fence so as not to render the case moot and academic.

On 28 January 1999, the petitioners filed a Motion for Early Resolution,[19] calling attention

to the continued expansion of the dumpsite by the MMDA that caused the people of Antipolo to

stage a rally and barricade the Marcos Highway to stop the dump trucks from reaching the site

for five successive days from 16 January 1999. On the second day of the barricade, all the

municipal mayors of the province of Rizal openly declared their full support for the rally, and

notified the MMDA that they would oppose any further attempt to dump garbage in their

province.[20]

As a result, MMDA officials, headed by then Chairman Jejomar Binay, agreed to abandon

the dumpsite after six months. Thus, the municipal mayors of Rizal, particularly the mayors of

Antipolo and San Mateo, agreed to the use of the dumpsite until that period, which would end

on 20 July 1999.[21]

On 13 July 1999, the petitioners filed an Urgent Second Motion for Early Resolution [22] in

anticipation of violence between the conflicting parties as the date of the scheduled closure of

the dumpsite neared.

On 19 July 1999, then President Joseph E. Estrada, taking cognizance of the gravity of the

problems in the affected areas and the likelihood that violence would erupt among the parties

involved, issued a Memorandum ordering the closure of the dumpsite on 31 December 2000. [23]

Accordingly, on 20 July 1999, the Presidential Committee on Flagship Programs and Projects and

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the MMDA entered into a MOA with the Provincial Government of Rizal, the Municipality of San

Mateo, and the City of Antipolo, wherein the latter agreed to further extend the use of the

dumpsite until its permanent closure on 31 December 2000.[24]

On 11 January 2001, President Estrada directed Department of Interior and Local

Government Secretary Alfredo Lim and MMDA Chairman Binay to reopen the San Mateo

dumpsite “in view of the emergency situation of uncollected garbage in Metro Manila, resulting

in a critical and imminent health and sanitation epidemic.”[25]

Claiming the above events constituted a “clear and present danger of violence erupting in

the affected areas,” the petitioners filed an Urgent Petition for Restraining Order [26] on 19 January

2001.

On 24 January 2001, this Court issued the Temporary Restraining Order prayed for,

“effective immediately and until further orders.”[27]

Meanwhile, on 26 January 2001, Republic Act No. 9003, otherwise known as “The

Ecological Solid Waste Management Act of 2000,” was signed into law by President Estrada.

Thus, the petitioners raised only two issues in their Memorandum[28] of 08 February 2005:

1) whether or not respondent MMDA agreed to the permanent closure of the San Mateo Landfill

as of December 2000, and 2) whether or not the permanent closure of the San Mateo landfill is

mandated by Rep. Act No. 9003.

We hold that the San Mateo Landfill will remain permanently closed.

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Although the petitioners may be deemed to have waived or abandoned the issues raised in

their previous pleadings but not included in the memorandum,[29] certain events we shall relate

below have inclined us to address some of the more pertinent issues raised in the petition for the

guidance of the herein respondents, and pursuant to our symbolic function to educate the bench

and bar.[30]

The law and the facts indicate that a mere MOA does not guarantee the dumpsite’s

permanent closure.

The rally and barricade staged by the people of Antipolo on 28 January 1999, with the full

support of all the mayors of Rizal Province caused the MMDA to agree that it would abandon the

dumpsite after six months. In return, the municipal mayors allowed the use of the dumpsite until

20 July 1999.

On 20 July 1999, with much fanfare and rhetoric, the Presidential Committee on Flagship

Programs and Projects and the MMDA entered into a MOA with the Provincial Government of

Rizal, the Municipality of San Mateo, and the City of Antipolo, whereby the latter agreed to an

extension for the use of the dumpsite until 31 December 2000, at which time it would be

permanently closed.

Despite this agreement, President Estrada directed Department of Interior and Local

Government Secretary Alfredo Lim and MMDA Chairman Binay toreopen the San Mateo

dumpsite on 11 January 2001, “in view of the emergency situation of uncollected garbage in

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Metro Manila, resulting in a critical and imminent health and sanitation epidemic;” our issuance

of a TRO on 24 January 2001 prevented the dumpsite’s reopening.

Were it not for the TRO, then President Estrada’s instructions would have been lawfully

carried out, for as we observed in Oposa v. Factoran, the freedom of contract is not absolute.

Thus:

….. In Abe vs. Foster Wheeler Corp., this Court stated: "The freedom of contract, under our system of government, is not meant to be absolute. The same is understood to be subject to reasonable legislative regulation aimed at the promotion of public health, moral, safety and welfare. In other words, the constitutional guaranty of non-impairment of obligations of contract is limited by the exercise of the police power of the State, in the interest of public health, safety, moral and general welfare." The reason for this is emphatically set forth in Nebia vs. New York, quoted in Philippine American Life Insurance Co. vs. Auditor General, to wit: "'Under our form of government the use of property and the making of contracts are normally matters of private and not of public concern. The general rule is that both shall be free of governmental interference. But neither property rights nor contract rights are absolute; for government cannot exist if the citizen may at will use his property to the detriment of his fellows, or exercise his freedom of contract to work them harm. Equally fundamental with the private right is that of the public to regulate it in the common interest.'" In short, the non-impairment clause must yield to the police power of the state. (Citations omitted, emphasis supplied)

We thus feel there is also the added need to reassure the residents of the Province of Rizal

that this is indeed a final resolution of this controversy, for a brief review of the records of this

case indicates two self-evident facts. First, the   San  Mateo   site   has   adversely   affected   its 

environs, and second, sources of water should always be protected.

As to the first point, the adverse effects of the site were reported as early as 19 June 1989,

when the Investigation Report of the Community Environment and Natural Resources Officer of

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DENR-IV-1 stated that the sources of domestic water supply of over one thousand families would

be adversely affected by the dumping operations.[31] The succeeding report included the

observation that the use of the areas as dumping site greatly affected the ecological balance and

environmental factors of the community.[32] Respondent LLDA in fact informed the MMA that the

heavy pollution and risk of disease generated by dumpsites rendered the location of a dumpsite

within the Marikina Watershed Reservation incompatible with its program of upgrading the

water quality of the Laguna Lake. [33]

The DENR suspended the site’s ECC after investigations revealed ground slumping and

erosion had resulted from improper development of the site. [34] Another Investigation

Report[35] submitted by the Regional Technical Director to the DENR reported respiratory illnesses

among pupils of a primary school located approximately 100 meters from the site, as well as the

constant presence of large flies and windblown debris all over the school’s playground. It further

reiterated reports that the leachate treatment plant had been eroded twice already,

contaminating the nearby creeks that were sources of potable water for the residents. The

contaminated water was also found to flow to the Wawa Dam and Boso-boso River, which in

turn empties into Laguna de Bay.

This brings us to the second self-evident point. Water is life, and must be saved at all

costs. In Collado v. Court of Appeals,[36] we had occasion to reaffirm our previous discussion

in Sta. Rosa Realty Development Corporation v. Court of Appeals,[37] on the primordial importance

of watershed areas, thus: “The most important product of a watershed is water, which is one of

the most important human necessities. The protection of watersheds ensures an adequate

supply of water for future generations and the control of flashfloods that not only damage

property but also cause loss of lives. Protection of watersheds is an “intergenerational”

responsibility that needs to be answered now.[38]

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Three short months before Proclamation No. 635 was passed to avert the garbage crisis,

Congress had enacted the National Water Crisis Act[39] to “adopt urgent and effective measures to

address the nationwide water crisis which adversely affects the health and well-being of the

population, food production, and industrialization process. One of the issues the law sought to

address was the “protection and conservation of watersheds.”[40]

          In other words, while respondents were blandly declaring that “the reason for the creation of

the Marikina Watershed Reservation, i.e., to protect Marikina River as the source of water supply

of the City of Manila, no longer exists,” the rest of the country was gripped by a shortage of

potable water so serious, it necessitated its own legislation.

Respondents’ actions in the face of such grave environmental consequences defy all logic. 

The petitioners rightly noted that instead of providing solutions, they have, with unmitigated

callousness, worsened the problem.  It is this readiness to wreak irrevocable damage on our natural

heritage in pursuit of what is expedient that has compelled us to rule at length on this issue.   We

ignore the unrelenting depletion of our natural heritage at our peril.

 I.

THE REORGANIZATION ACT OF THE DENR DEFINES ANDLIMITS ITS POWERS OVER THE COUNTRY’S NATURAL RESOURCES

The respondents next point out that the Marikina Watershed Reservation, and thus the San

Mateo Site, is located in the public domain.  They allege that as such, neither the Province of Rizal

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nor the municipality of San Mateo has the power to control or regulate its use since properties of

this nature belong to the national, and not to the local governments. 

 

It is ironic that the respondents should pursue this line of reasoning. 

 

In Cruz v. Secretary of Environment and Natural Resources,[41] we had occasion to observe

that “(o)ne of the fixed and dominating objectives of the 1935 Constitutional Convention was the

nationalization and conservation of the natural resources of the country.  There was an

overwhelming sentiment in the convention in favor of the principle of state ownership of natural

resources and the adoption of the Regalian doctrine.  State ownership of natural resources was

seen as a necessary starting point to secure recognition of the state’s power to control their

disposition, exploitation, development, or utilization.”[42]

 

The Regalian doctrine was embodied in the 1935 Constitution, in Section 1 of Article XIII

on “Conservation and Utilization of Natural Resources.”  This was reiterated in the 1973

Constitution under Article XIV on the “National Economy and the Patrimony of the Nation,” and

reaffirmed in the 1987 Constitution in Section 2 of Article XII on “National Economy and

Patrimony,” to wit:Sec. 2. All lands of the public domain, waters, minerals, coal,

petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State.  With the exception of agricultural lands, all other natural resources shall not be alienated.  The exploration, development and utilization of natural resources shall be under the full control and supervision of the State.  The State may directly undertake such activities or it may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned by such citizens.  Such agreements may be for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and under such

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Province of Rizal vs. Executive Secretary terms and conditions as may be provided by law.  In cases of water rights for irrigation, water supply, fisheries, or industrial uses other than the development of water power, beneficial use may be the measure and limit of the grant.[43]

   

Clearly, the state is, and always has been, zealous in preserving as much of our natural and

national heritage as it can, enshrining as it did the obligation to preserve and protect the same

within the text of our fundamental law. 

 

It was with this objective in mind that the respondent DENR was mandated by then

President Corazon C. Aquino, under Section 4 of Executive Order No. 192,  [44] otherwise known as

“The Reorganization Act of the Department of Environment and Natural Resources,” to be “the

primary government agency responsible for the conservation, management, development and

proper use of the country’s environment and natural resources, specifically forest and grazing

lands, mineral resources, including those in reservation and watershed areas, and lands of the

public domain.  It is also responsible for the licensing and regulation of all natural resources as

may be provided for by law in order to ensure equitable sharing of the benefits derived

therefrom   for the welfare of the present and future generations of Filipinos .”

 

We expounded on this matter in the landmark case of Oposa v. Factoran,[45]  where we held

that the right to a balanced and healthful ecology is a fundamental legal right that carries with it

the correlative duty to refrain from impairing the environment.  This right implies, among other

things, the judicious management and conservation of the country’s resources, which duty is

reposed in the DENR under the aforequoted Section 4 of Executive Order No. 192.  Moreover:Section 3 (of E. O. No. 192) makes the following statement of policy:

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Province of Rizal vs. Executive Secretary SEC. 3. Declaration of Policy. - It is hereby declared the policy of the

State to ensure the sustainable use, development, management, renewal, and conservation of the country's forest, mineral, land, off-shore areas and other natural resources, including the protection and enhancement of the quality of the environment, and equitable access of the different segments of the population to the development and use of the country's natural resources, not only for the present generation but for future generations as well. It is also the policy of the state to recognize and apply a true value system including social and environmental cost implications relative to their utilization; development and conservation of our natural resources. (Emphasis ours)

This policy declaration is substantially re-stated in Title XIV, Book IV of the Administrative Code of 1987, specifically in Section 1 thereof which reads:

SEC. 1. Declaration of Policy. - (1) The State shall ensure, for the benefit of the Filipino people, the full exploration and development as well as the judicious disposition, utilization, management, renewal and conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural resources, consistent with the necessity of maintaining a sound ecological balance and protecting and enhancing the quality of the environment and the objective of making the exploration, development and utilization of such natural resources equitably accessible to the different segments of the present as well as future generations.

(2) The State shall likewise recognize and apply a true value system that takes into account social and environmental cost implications relative to the utilization, development and conservation of our natural resources.

The above provision stresses “the necessity of maintaining a sound ecological balance and protecting and enhancing the quality of the environment.”[46](Emphasis ours.)

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Province of Rizal vs. Executive Secretary

In sum, the Administrative Code of 1987 and Executive Order No. 192 entrust the DENR

with the guardianship and safekeeping of the Marikina Watershed Reservation and our other

natural treasures.  However, although the DENR, an agency of the government, owns the Marikina

Reserve and has jurisdiction over the same, this power is not absolute, but is defined by the

declared policies of the state, and is subject to the law and higher authority.   Section 2, Title XIV,

Book IV of the Administrative Code of 1987, while specifically referring to the mandate of the

DENR, makes particular reference to the agency’s being subject to law and higher authority, thus:

SEC. 2. Mandate. - (1) The Department of Environment and Natural Resources shall be primarily responsible for the implementation of the foregoing policy.

(2) It shall, subject to law and higher authority, be in charge of carrying out the State's constitutional mandate to control and supervise the exploration, development, utilization, and conservation of the country's natural resources.

With great power comes great responsibility. It is the height of irony that the public

respondents have vigorously arrogated to themselves the power to control the San Mateo site,

but have deftly ignored their corresponding responsibility as guardians and protectors of this

tormented piece of land.

 

II.

 

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Province of Rizal vs. Executive Secretary THE LOCAL GOVERNMENT CODE GIVES TO LOCAL GOVERNMENT UNITS ALL THE NECESSARY POWERS TO

PROMOTE THE GENERAL WELFARE OF THEIR INHABITANTS

The circumstances under which Proclamation No. 635 was passed also violates Rep. Act

No. 7160, or the Local Government Code. 

 

Contrary to the averment of the respondents, Proclamation No. 635, which was passed on 28

August 1995, is subject to the provisions of the Local Government Code, which was approved four

years earlier, on 10 October 1991. 

 

Section 2(c) of the said law declares that it is the policy of the state “to require all

national agencies and offices to conduct periodic consultations with appropriate local

government units, non-governmental and people's organizations, and other concerned sectors

of the community before any project or program is implemented in their respective

jurisdictions.”  Likewise, Section 27 requires prior consultations before a program shall be

implemented by government authorities and the prior approval of the sanggunian is obtained.

 

During the oral arguments at the hearing for the temporary restraining order, Director

Uranza of the MMDA Solid Waste Management Task Force declared before the Court of Appeals

that they had conducted the required consultations.  However, he added that “(t)his is the

problem, sir, the officials we may have been talking with at the time this was established

may no longer be incumbent and this is our difficulty now.  That is what we are trying to do

now, a continuing dialogue.”[47]

 

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Province of Rizal vs. Executive Secretary

The ambivalent reply of Director Uranza was brought to the fore when, at the height of

the protest rally and barricade along Marcos Highway to stop dump trucks from reaching the

site, all the municipal mayors of the province of Rizal openly declared their full support

for the rally and notified the MMDA that they would oppose any further attempt to dump

garbage in their province.[48]

 

The municipal mayors acted within the scope of their powers,

and were in fact fulfilling their mandate, when they did this. 

Section 16 allows every local government unit to “exercise the

powers expressly granted, those necessarily implied therefrom, as

well as powers necessary, appropriate, or incidental for its

efficient and effective governance, and those which are essential

to the promotion of the general welfare,” which involve, among

other things, “promot(ing) health and safety, enhance(ing) the

right of the people to a balanced ecology, and preserv(ing) the

comfort and convenience of their inhabitants.”

 

In Lina , Jr. v. Paño,[49] we held that Section 2 (c), requiring consultations with the

appropriate local government units, should apply to national government projects affecting the

environmental or ecological balance of the particular community implementing the project. 

Rejecting the petitioners’ contention that Sections 2(c) and 27 of the Local Government Code

applied mandatorily in the setting up of lotto outlets around the country, we held that:From a careful reading of said provisions, we find that these apply only to national

programs and/or projects which are to be implemented in a particular local community. Lotto is neither a program nor a project of the national government, but of a charitable institution, the PCSO. Though sanctioned by the national government, it is far fetched to say that lotto falls within the contemplation of Sections 2 (c) and 27 of the Local Government Code.

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Province of Rizal vs. Executive Secretary Section 27 of the Code should be read in conjunction with Section 26 thereof. Section 26 reads:

SECTION 26. Duty of National Government Agencies in the Maintenance of Ecological Balance. It shall be the duty of every national agency or government-owned or controlled corporation authorizing or involved in the planning and implementation of any project or program that may cause pollution, climatic change, depletion of non-renewable resources, loss of crop land, range-land, or forest cover, and extinction of animal or plant species, to consult with the local government units, nongovernmental organizations, and other sectors concerned and explain the goals and objectives of the project or program, its impact upon the people and the community in terms of environmental or ecological balance, and the measures that will be undertaken to prevent or minimize the adverse effects thereof.

Thus, the projects and programs mentioned in Section 27 should be interpreted to mean projects and programs whose effects are among those enumerated in Section 26 and 27, to wit, those that: (1) may cause pollution; (2) may bring about climatic change; (3) may cause the depletion of non-renewable resources; (4) may result in loss of crop land, range-land, or forest cover; (5) may eradicate certain animal or plant species from the face of the planet; and (6) other projects or programs that may call for the eviction of a particular group of people residing in the locality where these will be implemented. Obviously, none of these effects will be produced by the introduction of lotto in the province of Laguna. (emphasis supplied)

 

We reiterated this doctrine in the recent case of Bangus Fry Fisherfolk v. Lanzanas,[50] where we held that there was no statutory requirement for thesangguniang bayan of Puerto

Galera to approve the construction of a mooring facility, as Sections 26 and 27 are inapplicable to

projects which are not environmentally critical.

 

Moreover, Section 447, which enumerates the powers, duties

and functions of the municipality, grants the sangguniang bayan the

power to, among other things, “enact ordinances, approve

resolutions and appropriate funds for the general welfare of the

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Province of Rizal vs. Executive Secretary

municipality and its inhabitants pursuant to Section 16 of th(e)

Code.”  These include:(1)        Approving ordinances and passing resolutions

to protect the environment and impose appropriate penalties for acts which endanger the environment, such as dynamite fishing and other forms of destructive fishing, illegal logging and smuggling of logs, smuggling of natural resources products and of endangered species of flora and fauna, slash and burn farming, and such other activities which result in pollution, acceleration of eutrophication of rivers and lakes, or of ecological imbalance; [Section 447 (1)(vi)]

(2)       Prescribing reasonable limits and restraints on the use of property within the jurisdiction of the municipality, adopting a comprehensive land use plan for the municipality, reclassifying land within the jurisdiction of the city, subject to the pertinent provisions of this Code, enacting integrated zoning ordinances in consonance with the approved comprehensive land use plan, subject to existing laws, rules and regulations; establishing fire limits or zones, particularly in populous centers; and regulating the construction, repair or modification of buildings within said fire limits or zones in accordance with the provisions of this Code; [Section 447 (2)(vi-ix)]

 (3)       Approving ordinances which shall ensure the

efficient and effective delivery of the basic services and facilities as provided for under Section 17 of this Code, and in addition to said services and facilities, …providing for the establishment, maintenance, protection, and conservation of communal forests and watersheds, tree parks, greenbelts, mangroves, and other similar forest development projects ….and, subject to existing laws, establishing and providing for the maintenance, repair and operation of an efficient waterworks system to supply water for the inhabitants and purifying the source of the water supply; regulating the construction, maintenance, repair and use of hydrants, pumps, cisterns and reservoirs; protecting the purity and quantity of the water supply of the municipality and, for this purpose, extending the coverage of appropriate ordinances over all territory within the drainage area of said water supply and within one hundred (100) meters of the reservoir, conduit, canal, aqueduct, pumping station, or

Page 90: Municipal Corporations

Province of Rizal vs. Executive Secretary watershed used in connection with the water service; and regulating the consumption, use or wastage of water.” [Section 447 (5)(i) & (vii)]

   

Under the Local Government Code, therefore, two requisites must be met before a national

project that affects the environmental and ecological balance of local communities can be

implemented: prior consultation with the affected local communities, and prior approval of the

project by the appropriatesanggunian.  Absent either of these mandatory requirements, the

project’s implementation is illegal.

 III.

WASTE DISPOSAL IS REGULATED BY THE ECOLOGICALSOLID WASTE MANAGEMENT ACT OF 2000

The respondents would have us overlook all the abovecited laws because the San Mateo site

is a very expensive - and necessary - fait accompli.  The respondents cite the millions of pesos and

hundreds of thousands of dollars the government has already expended in its development and

construction, and the lack of any viable alternative sites. 

 

The Court of Appeals agreed, thus:During the hearing on the injunction, questions were also asked.  “What will happen

if the San Mateo Sanitary Landfill is closed?  Where will the daily collections of garbage be disposed of and dumped?”  Atty. Mendoza, one of the lawyers of the petitioners, answered that each city/municipality ‘must take care of its own.’  Reflecting on that answer, we are troubled:  will not the proliferation of separate open dumpsites be a more serious health hazard (which ha(s) to be addressed) to the residents of the community?  What with the galloping population growth and the constricting available land area in Metro Manila? 

Page 91: Municipal Corporations

Province of Rizal vs. Executive Secretary There could be a ‘mini-Smokey Mountain’ in each of the ten cities…comprising Metro Manila, placing in danger the health and safety of more people.  Damage to the environment could be aggravated by the increase in number of open dumpsites.  An integrated system of solid waste management, like the San Mateo Sanitary Landfill, appears advisable to a populous metropolis like the Greater Metro Manila Area absent access to better technology.[51]

  

We acknowledge that these are valid concerns.  Nevertheless, the lower court should have

been mindful of the legal truism that it is the legislature, by its very nature, which is the primary

judge of the necessity, adequacy, wisdom, reasonableness and expediency of any law.[52] 

 

Moreover, these concerns are addressed by Rep. Act No. 9003.  Approved on 26 January

2001, “The Ecological Solid Waste Management Act of 2000” was enacted pursuant to the

declared policy of the state “to adopt a systematic, comprehensive and ecological solid waste

management system which shall ensure the protection of public health and environment, and

utilize environmentally sound methods that maximize the utilization of valuable resources and

encourage resource conservation and recovery.”[53]  It requires the adherence to a Local

Government Solid Waste Management Plan with regard to the collection and transfer, processing,

source reduction, recycling, composting and final disposal of solid wastes, the handling and

disposal of special wastes, education and public information, and the funding of solid waste

management projects.

 

The said law mandates the formulation of a National Solid Waste Management Framework,

which should include, among other things, the method and procedure for the phaseout and the

eventual closure within eighteen months from effectivity of the Act in case of existing open dumps

and/or sanitary landfills located within an aquifer, groundwater reservoir or watershed area .

[54]  Any landfills subsequently developed must comply with the minimum requirements laid down

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Province of Rizal vs. Executive Secretary

in Section 40, specifically that the site selected must be consistent with the overall land use plan

of the local government unit, and that the site must be located in an area where the landfill’s

operation will not detrimentally affect environmentally sensitive resources such as aquifers,

groundwater reservoirs or watershed areas.[55]

 

This writes finis to any remaining aspirations respondents may have of reopening the San

Mateo Site.  Having declared Proclamation No. 635 illegal, we see no compelling need to tackle

the remaining issues raised in the petition and the parties’ respective memoranda.

 

A final word. Laws pertaining to the protection of the environment were not drafted in a

vacuum. Congress passed these laws fully aware of the perilous state of both our economic and

natural wealth. It was precisely to minimize the adverse impact humanity’s actions on all aspects

of the natural world, at the same time maintaining and ensuring an environment under which

man and nature can thrive in productive and enjoyable harmony with each other, that these legal

safeguards were put in place. They should thus not be so lightly cast aside in the face of what is

easy and expedient.

WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals in CA-G.R. SP

No. 41330, dated 13 June 1997, is REVERSED and SET ASIDE. The temporary restraining order

issued by the Court on 24 January 2001 is hereby made permanent.

SO ORDERED.

Page 93: Municipal Corporations

LCP vs. COMELEC

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 176951             November 18, 2008

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, vs.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.

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

G.R. No. 177499             November 18, 2008

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, vs.COMMISSION ON ELECTIONS; 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; and MUNICIPALITY OF GUIHULNGAN, PROVINCE OF NEGROS ORIENTAL, 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

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LCP vs. COMELECOF 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.

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

G.R. No. 178056             November 18, 2008

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 vs.COMMISSION ON ELECTIONS; MUNICIPALITY OF CABADBARAN, PROVINCE OF AGUSAN DEL NORTE; MUNICIPALITY OF CARCAR, PROVINCE OF CEBU; and MUNICIPALITY OF EL SALVADOR, MISAMIS ORIENTAL, 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.

D E C I S I O N

CARPIO, J.:

The Case

These are consolidated petitions for prohibition1 with prayer for the issuance of a writ of preliminary injunction or temporary restraining order filed by the League of Cities of the Philippines, City of Iloilo, City of Calbayog, and Jerry P. Treñas2 assailing the constitutionality of the subject Cityhood Laws and enjoining the Commission on Elections (COMELEC) and respondent municipalities from conducting plebiscites pursuant to the Cityhood Laws.

The Facts

During the 11th Congress,3 Congress enacted into law 33 bills converting 33 municipalities into cities. However, Congress did not act on bills converting 24 other municipalities into cities.

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LCP vs. COMELECDuring the 12th Congress,4 Congress enacted into law Republic Act No. 9009 (RA 9009),5 which took effect on 30 June 2001. RA 9009 amended Section 450 of the Local Government Code by increasing the annual income requirement for conversion of a municipality into a city from P20 million to P100 million. The rationale for the amendment was to restrain, in the words of Senator Aquilino Pimentel, "the mad rush" of municipalities to convert into cities solely to secure a larger share in the Internal Revenue Allotment despite the fact that they are incapable of fiscal independence.6

After the effectivity of RA 9009, the House of Representatives of the 12th Congress7 adopted Joint Resolution No. 29,8 which sought to exempt from the P100 million income requirement in RA 9009 the 24 municipalities whose cityhood bills were not approved in the 11th Congress. However, the 12th Congress ended without the Senate approving Joint Resolution No. 29.

During the 13th Congress,9 the House of Representatives re-adopted Joint Resolution No. 29 as Joint Resolution No. 1 and forwarded it to the Senate for approval. However, the Senate again failed to approve the Joint Resolution. Following the advice of Senator Aquilino Pimentel, 16 municipalities filed, through their respective sponsors, individual cityhood bills. The 16 cityhood bills contained a common provision exempting all the 16 municipalities from the P100 million income requirement in RA 9009.

On 22 December 2006, the House of Representatives approved the cityhood bills. The Senate also approved the cityhood bills in February 2007, except that of Naga, Cebu which was passed on 7 June 2007. The cityhood bills lapsed into law (Cityhood Laws10) on various dates from March to July 2007 without the President's signature.11

The Cityhood Laws direct the COMELEC to hold plebiscites to determine whether the voters in each respondent municipality approve of the conversion of their municipality into a city.

Petitioners filed the present petitions to declare the Cityhood Laws unconstitutional for violation of Section 10, Article X of the Constitution, as well as for violation of the equal protection clause.12Petitioners also lament that the wholesale conversion of municipalities into cities will reduce the share of existing cities in the Internal Revenue Allotment because more cities will share the same amount of internal revenue set aside for all cities under Section 285 of the Local Government Code.13

The Issues

The petitions raise the following fundamental issues:

1. Whether the Cityhood Laws violate Section 10, Article X of the Constitution; and

2. Whether the Cityhood Laws violate the equal protection clause.

The Ruling of the Court

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LCP vs. COMELECWe grant the petitions.

The Cityhood Laws violate Sections 6 and 10, Article X of the Constitution, and are thus unconstitutional.

First, applying the P100 million income requirement in RA 9009 to the present case is a prospective, not a retroactive application, because RA 9009 took effect in 2001 while the cityhood bills became law more than five years later.

Second, the Constitution requires that Congress shall prescribe all the criteria for the creation of a city in the Local Government Code and not in any other law, including the Cityhood Laws.

Third, the Cityhood Laws violate Section 6, Article X of the Constitution because they prevent a fair and just distribution of the national taxes to local government units.

Fourth, the criteria prescribed in Section 450 of the Local Government Code, as amended by RA 9009, for converting a municipality into a city are clear, plain and unambiguous, needing no resort to any statutory construction.

Fifth, the intent of members of the 11th Congress to exempt certain municipalities from the coverage of RA 9009 remained an intent and was never written into Section 450 of the Local Government Code.

Sixth, the deliberations of the 11th or 12th Congress on unapproved bills or resolutions are not extrinsic aids in interpreting a law passed in the 13th Congress.

Seventh, even if the exemption in the Cityhood Laws were written in Section 450 of the Local Government Code, the exemption would still be unconstitutional for violation of the equal protection clause.

Preliminary Matters

Prohibition is the proper action for testing the constitutionality of laws administered by the COMELEC,14like the Cityhood Laws, which direct the COMELEC to hold plebiscites in implementation of the Cityhood Laws. Petitioner League of Cities of the Philippines has legal standing because Section 499 of the Local Government Code tasks the League with the "primary purpose of ventilating, articulating and crystallizing issues affecting city government administration and securing, through proper and legal means, solutions thereto."15 Petitioners-in-intervention,16 which are existing cities, have legal standing because their Internal Revenue Allotment will be reduced if the Cityhood Laws are declared constitutional. Mayor Jerry P. Treñas has legal standing because as Mayor of Iloilo City and as a taxpayer he has sufficient interest to prevent the unlawful expenditure of public funds, like the release of more Internal Revenue Allotment to political units than what the law allows.

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LCP vs. COMELECApplying RA 9009 is a Prospective Application of the Law

RA 9009 became effective on 30 June 2001 during the 11th Congress. This law specifically amended Section 450 of the Local Government Code, which now provides:

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:

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

(ii) 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. (Emphasis supplied)

Thus, RA 9009 increased the income requirement for conversion of a municipality into a city from P20 million to P100 million. Section 450 of the Local Government Code, as amended by RA 9009, does not provide any exemption from the increased income requirement.

Prior to the enactment of RA 9009, a total of 57 municipalities had cityhood bills pending in Congress. Thirty-three cityhood bills became law before the enactment of RA 9009. Congress did not act on 24 cityhood bills during the 11th Congress.

During the 12th Congress, the House of Representatives adopted Joint Resolution No. 29, exempting from the income requirement of P100 million in RA 9009 the 24 municipalities whose cityhood bills were not acted upon during the 11th Congress. This Resolution reached the Senate. However, the 12thCongress adjourned without the Senate approving Joint Resolution No. 29.

During the 13th Congress, 16 of the 24 municipalities mentioned in the unapproved Joint Resolution No. 29 filed between November and December of 2006, through their respective sponsors in Congress, individual cityhood bills containing a common provision, as follows:

Page 98: Municipal Corporations

LCP vs. COMELECExemption from Republic Act No. 9009. - The City of x x x shall be exempted from the income requirement prescribed under Republic Act No. 9009.

This common provision exempted each of the 16 municipalities from the income requirement ofP100 million prescribed in Section 450 of the Local Government Code, as amended by RA 9009. These cityhood bills lapsed into law on various dates from March to July 2007 after President Gloria Macapagal-Arroyo failed to sign them.

Indisputably, Congress passed the Cityhood Laws long after the effectivity of RA 9009. RA 9009 became effective on 30 June 2001 or during the 11th Congress. The 13th Congress passed in December 2006 the cityhood bills which became law only in 2007. Thus, respondent municipalities cannot invoke the principle of non-retroactivity of laws.17 This basic rule has no application because RA 9009, an earlier law to the Cityhood Laws, is not being applied retroactively but prospectively.

Congress Must Prescribe in the Local Government Code All Criteria

Section 10, Article X of the 1987 Constitution provides:

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)

The Constitution is clear. The creation of local government units must follow the criteria established in the Local Government Code and not in any other law. There is only one Local Government Code.18The Constitution requires Congress to stipulate in the Local Government Code all the criteria necessary for the creation of a city, including the conversion of a municipality into a city. Congress cannot write such criteria in any other law, like the Cityhood Laws.

The criteria prescribed in the Local Government Code govern exclusively the creation of a city. No other law, not even the charter of the city, can govern such creation. The clear intent of the Constitution is to insure that the creation of cities and other political units must follow the same uniform, non-discriminatory criteria found solely in the Local Government Code. Any derogation or deviation from the criteria prescribed in the Local Government Code violates Section 10, Article X of the Constitution.

RA 9009 amended Section 450 of the Local Government Code to increase the income requirement fromP20 million to P100 million for the creation of a city. This took effect on 30 June 2001. Hence, from that moment the Local Government Code required that any municipality desiring to become a city must satisfy the P100 million income requirement. Section 450 of the Local Government Code, as amended by RA 9009, does not contain any exemption from this income requirement.

Page 99: Municipal Corporations

LCP vs. COMELECIn enacting RA 9009, Congress did not grant any exemption to respondent municipalities, even though their cityhood bills were pending in Congress when Congress passed RA 9009. The Cityhood Laws, all enacted after the effectivity of RA 9009, explicitly exempt respondent municipalities from the increased income requirement in Section 450 of the Local Government Code, as amended by RA 9009. Such exemption clearly violates Section 10, Article X of the Constitution and is thus patently unconstitutional. To be valid, such exemption must be written in the Local Government Code and not in any other law, including the Cityhood Laws.

Cityhood Laws Violate Section 6, Article X of the Constitution

Uniform and non-discriminatory criteria as prescribed in the Local Government Code are essential to implement a fair and equitable distribution of national taxes to all local government units. Section 6, Article X of the Constitution provides:

Local government units shall have a just share, as determined by law, in the national taxes which shall be automatically released to them. (Emphasis supplied)

If the criteria in creating local government units are not uniform and discriminatory, there can be no fair and just distribution of the national taxes to local government units.

A city with an annual income of only P20 million, all other criteria being equal, should not receive the same share in national taxes as a city with an annual income of P100 million or more. The criteria of land area, population and income, as prescribed in Section 450 of the Local Government Code, must be strictly followed because such criteria, prescribed by law, are material in determining the "just share" of local government units in national taxes. Since the Cityhood Laws do not follow the income criterion in Section 450 of the Local Government Code, they prevent the fair and just distribution of the Internal Revenue Allotment in violation of Section 6, Article X of the Constitution.

Section 450 of the Local Government Code is Clear, Plain and Unambiguous

There can be no resort to extrinsic aids – like deliberations of Congress – if the language of the law is plain, clear and unambiguous. Courts determine the intent of the law from the literal language of the law, within the law's four corners.19 If the language of the law is plain, clear and unambiguous, courts simply apply the law according to its express terms. If a literal application of the law results in absurdity, impossibility or injustice, then courts may resort to extrinsic aids of statutory construction like the legislative history of the law.20

Congress, in enacting RA 9009 to amend Section 450 of the Local Government Code, did not provide any exemption from the increased income requirement, not even to respondent municipalities whose cityhood bills were then pending when Congress passed RA 9009. Section 450 of the Local Government Code, as amended by RA 9009, contains no exemption whatsoever. Since the law is clear, plain and unambiguous that any municipality

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LCP vs. COMELECdesiring to convert into a city must meet the increased income requirement, there is no reason to go beyond the letter of the law in applying Section 450 of the Local Government Code, as amended by RA 9009.

The 11th Congress' Intent was not Written into the Local Government Code

True, members of Congress discussed exempting respondent municipalities from RA 9009, as shown by the various deliberations on the matter during the 11th Congress. However, Congress did not write this intended exemption into law. Congress could have easily included such exemption in RA 9009 but Congress did not. This is fatal to the cause of respondent municipalities because such exemption must appear in RA 9009 as an amendment to Section 450 of the Local Government Code. The Constitution requires that the criteria for the conversion of a municipality into a city, including any exemption from such criteria, must all be written in the Local Government Code. Congress cannot prescribe such criteria or exemption from such criteria in any other law. In short, Congress cannot create a city through a law that does not comply with the criteria or exemption found in the Local Government Code.

Section 10 of Article X is similar to Section 16, Article XII of the Constitution prohibiting Congress from creating private corporations except by a general law. Section 16 of Article XII provides:

The Congress shall not, except by general law, provide for the formation, organization, or regulation of private corporations. Government-owned or controlled corporations may be created or established by special charters in the interest of the common good and subject to the test of economic viability. (Emphasis supplied)

Thus, Congress must prescribe all the criteria for the "formation, organization, or regulation" of private corporations in a general law applicable to all without discrimination.21 Congress cannot create a private corporation through a special law or charter.

Deliberations of the 11th Congress on Unapproved Bills Inapplicable

Congress is not a continuing body.22 The unapproved cityhood bills filed during the 11th Congress became mere scraps of paper upon the adjournment of the 11th Congress. All the hearings and deliberations conducted during the 11th Congress on unapproved bills also became worthless upon the adjournment of the 11th Congress. These hearings and deliberations cannot be used to interpret bills enacted into law in the 13th or subsequent Congresses.

The members and officers of each Congress are different. All unapproved bills filed in one Congress become functus officio upon adjournment of that Congress and must be re-filed anew in order to be taken up in the next Congress. When their respective authors re-filed the

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LCP vs. COMELECcityhood bills in 2006 during the 13th Congress, the bills had to start from square one again, going through the legislative mill just like bills taken up for the first time, from the filing to the approval. Section 123, Rule XLIV of the Rules of the Senate, on Unfinished Business, provides:

Sec. 123. x x x

All pending matters and proceedings shall terminate upon the expiration of one (1) Congress, but may be taken by the succeeding Congress as if presented for the first time. (Emphasis supplied)

Similarly, Section 78 of the Rules of the House of Representatives, on Unfinished Business, states:

Section 78. Calendar of Business. The Calendar of Business shall consist of the following:

a. Unfinished Business. This is business being considered by the House at the time of its last adjournment. Its consideration shall be resumed until it is disposed of. The Unfinished Business at the end of a session shall be resumed at the commencement of the next session as if no adjournment has taken place. At the end of the term of a Congress, all Unfinished Business are deemed terminated. (Emphasis supplied)

Thus, the deliberations during the 11th Congress on the unapproved cityhood bills, as well as the deliberations during the 12th and 13th Congresses on the unapproved resolution exempting from RA 9009 certain municipalities, have no legal significance. They do not qualify as extrinsic aids in construing laws passed by subsequent Congresses.

Applicability of Equal Protection Clause

If Section 450 of the Local Government Code, as amended by RA 9009, contained an exemption to theP100 million annual income requirement, the criteria for such exemption could be scrutinized for possible violation of the equal protection clause. Thus, the criteria for the exemption, if found in the Local Government Code, could be assailed on the ground of absence of a valid classification. However, Section 450 of the Local Government Code, as amended by RA 9009, does not contain any exemption. The exemption is contained in the Cityhood Laws, which are unconstitutional because such exemption must be prescribed in the Local Government Code as mandated in Section 10, Article X of the Constitution.

Even if the exemption provision in the Cityhood Laws were written in Section 450 of the Local Government Code, as amended by RA 9009, such exemption would still be unconstitutional for violation of the equal protection clause. The exemption provision merely states, "Exemption from Republic Act No. 9009 ─ The City of x x x shall be exempted from the income requirement prescribed under Republic Act No. 9009." This one

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LCP vs. COMELECsentence exemption provision contains no classification standards or guidelines differentiating the exempted municipalities from those that are not exempted.

Even if we take into account the deliberations in the 11th Congress that municipalities with pending cityhood bills should be exempt from the P100 million income requirement, there is still no valid classification to satisfy the equal protection clause. The exemption will be based solely on the fact that the 16 municipalities had cityhood bills pending in the 11th Congress when RA 9009 was enacted. This is not a valid classification between those entitled and those not entitled to exemption from the P100 million income requirement.

To be valid, the classification in the present case must be based on substantial distinctions, rationally related to a legitimate government objective which is the purpose of the law,23 not limited to existing conditions only, and applicable to all similarly situated. Thus, this Court has ruled:

The equal protection clause of the 1987 Constitution permits a valid classification under the following conditions:

1. The classification must rest on substantial distinctions;

2. The classification must be germane to the purpose of the law;

3. The classification must not be limited to existing conditions only; and

4. The classification must apply equally to all members of the same class.24

There is no substantial distinction between municipalities with pending cityhood bills in the 11thCongress and municipalities that did not have pending bills. The mere pendency of a cityhood bill in the 11th Congress is not a material difference to distinguish one municipality from another for the purpose of the income requirement. The pendency of a cityhood bill in the 11th Congress does not affect or determine the level of income of a municipality. Municipalities with pending cityhood bills in the 11thCongress might even have lower annual income than municipalities that did not have pending cityhood bills. In short, the classification criterion − mere pendency of a cityhood bill in the 11th Congress − is not rationally related to the purpose of the law which is to prevent fiscally non-viable municipalities from converting into cities.

Municipalities that did not have pending cityhood bills were not informed that a pending cityhood bill in the 11th Congress would be a condition for exemption from the increased P100 million income requirement. Had they been informed, many municipalities would have caused the filing of their own cityhood bills. These municipalities, even if they have bigger annual income than the 16 respondent municipalities, cannot now convert into cities if their income is less than P100 million.

The fact of pendency of a cityhood bill in the 11th Congress limits the exemption to a specific condition existing at the time of passage of RA 9009. That specific condition will never

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LCP vs. COMELEChappen again. This violates the requirement that a valid classification must not be limited to existing conditions only. This requirement is illustrated in Mayflower Farms, Inc. v. Ten Eyck,25 where the challenged law allowed milk dealers engaged in business prior to a fixed date to sell at a price lower than that allowed to newcomers in the same business. In Mayflower, the U.S. Supreme Court held:

We are referred to a host of decisions to the effect that a regulatory law may be prospective in operation and may except from its sweep those presently engaged in the calling or activity to which it is directed. Examples are statutes licensing physicians and dentists, which apply only to those entering the profession subsequent to the passage of the act and exempt those then in practice, or zoning laws which exempt existing buildings, or laws forbidding slaughterhouses within certain areas, but excepting existing establishments. The challenged provision is unlike such laws, since, on its face, it is not a regulation of a business or an activity in the interest of, or for the protection of, the public, but an attempt to give an economic advantage to those engaged in a given business at an arbitrary date as against all those who enter the industry after that date. The appellees do not intimate that the classification bears any relation to the public health or welfare generally; that the provision will discourage monopoly; or that it was aimed at any abuse, cognizable by law, in the milk business. In the absence of any such showing, we have no right to conjure up possible situations which might justify the discrimination. The classification is arbitrary and unreasonable and denies the appellant the equal protection of the law. (Emphasis supplied)

In the same vein, the exemption provision in the Cityhood Laws gives the 16 municipalities a unique advantage based on an arbitrary date − the filing of their cityhood bills before the end of the 11thCongress - as against all other municipalities that want to convert into cities after the effectivity of RA 9009.

Furthermore, limiting the exemption only to the 16 municipalities violates the requirement that the classification must apply to all similarly situated. Municipalities with the same income as the 16 respondent municipalities cannot convert into cities, while the 16 respondent municipalities can. Clearly, as worded the exemption provision found in the Cityhood Laws, even if it were written in Section 450 of the Local Government Code, would still be unconstitutional for violation of the equal protection clause.

WHEREFORE, we GRANT the petitions and declare UNCONSTITUTIONAL the Cityhood Laws, namely: Republic Act Nos. 9389, 9390, 9391, 9392, 9393, 9394, 9398, 9404, 9405, 9407, 9408, 9409, 9434, 9435, 9436, and 9491.

SO ORDERED.

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LCP vs. COMELEC

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 176951               December 21, 2009

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, vs.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.

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

G.R. No. 177499               December 21, 2009

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, vs.COMMISSION ON ELECTIONS; 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; and MUNICIPALITY OF GUIHULNGAN, PROVINCE OF NEGROS ORIENTAL, 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.

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

G.R. No. 178056               December 21, 2009

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, vs.PROVINCE OF AGUSAN DEL NORTE; MUNICIPALITY OF CARCAR, PROVINCE OF CEBU; and MUNICIPALITY OF EL SALVADOR, MISAMIS ORIENTAL, COMMISSION ON ELECTIONS; MUNICIPALITY OF CABADBARAN,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

Page 105: Municipal Corporations

LCP vs. COMELECZAMBOANGA, 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.

D E C I S I O N

VELASCO, JR. J.:

Ratio legis est anima. The spirit rather than the letter of the law. A statute must be read according to its spirit or intent,1 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.2 Put a bit differently, that which is within the intent of the lawmaker is as much within the statute as if within the letter; and that which is within the letter of the statute is not within the statute unless within the intent of the lawmakers.3 Withal, courts ought not to interpret and should not accept an interpretation that would defeat the intent of the law and its legislators.4

So as it is exhorted to pass on a challenge against the validity of an act of Congress, a co-equal branch of government, it behooves the Court to have at once one principle in mind: the presumption of constitutionality of statutes.5 This presumption finds its roots in the tri-partite system of government and the corollary separation of powers, which enjoins the three great departments of the government to accord a becoming courtesy for each other’s acts, and not to interfere inordinately with the exercise by one of its official functions. Towards this end, courts ought to reject assaults against the validity of statutes, barring of course their clear unconstitutionality. To doubt is to sustain, the theory in context being that the law is the product of earnest studies by Congress to ensure that no constitutional prescription or concept is infringed.6 Consequently, before a law duly challenged is nullified, an unequivocal breach of, or a clear conflict with, the Constitution, not merely a doubtful or argumentative one, must be demonstrated in such a manner as to leave no doubt in the mind of the Court.7

BACKGROUND

The consolidated petitions for prohibition commenced by the League of Cities of the Philippines (LCP), City of Iloilo, City of Calbayog, and Jerry P. Treñas8 assail the constitutionality of the sixteen (16) laws,9 each converting the municipality covered thereby into a city (cityhood laws, hereinafter) and seek to enjoin the Commission on Elections (COMELEC) from conducting plebiscites pursuant to subject laws.

By Decision10 dated November 18, 2008, the Court en banc, by a 6-5 vote, granted the petitions and nullified the sixteen (16) cityhood laws for being violative of the Constitution, specifically its Section 10, Article X and the equal protection clause.

Subsequently, respondent local government units (LGUs) moved for reconsideration, raising, as one of the issues, the validity of the factual premises not contained in the pleadings of the parties, let alone established, which became the bases of the Decision subject of reconsideration.11 By Resolution of March 31, 2009, a divided Court denied the motion for reconsideration.

A second motion for reconsideration followed in which respondent LGUs prayed as follows:

WHEREFORE, respondents respectfully pray that the Honorable Court reconsider its "Resolution" dated March 31, 2009, in so far as it denies for "lack of merit" respondents’ "Motion for Reconsideration" dated December 9, 2008 and in lieu thereof, considering that new and meritorious arguments are raised by respondents’ "Motion for Reconsideration" dated December 9, 2008 to grant afore-mentioned "Motion for Reconsideration" dated December 9, 2008 and dismiss the "Petitions For Prohibition" in the instant case.

Per Resolution dated April 28, 2009, the Court, voting 6-6, disposed of the motion as follows:

By a vote of 6-6, the Motion for Reconsideration of the Resolution of 31 March 2009 is DENIED for lack of merit. The motion is denied since there is no majority that voted to overturn the Resolution of 31 March 2009.

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LCP vs. COMELECThe Second Motion for Reconsideration of the Decision of 18 November 2008 is DENIED for being a prohibited pleading, and the Motion for Leave to Admit Attached Petition in Intervention x x x filed by counsel for Ludivina T. Mas, et al. are also DENIED. No further pleadings shall be entertained. Let entry of judgment be made in due course. x x x

On May 14, 2009, respondent LGUs filed a 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."

Per its Resolution of June 2, 2009, the Court declared the May 14, 2009 motion adverted to as expunged in light of the entry of judgment made on May 21, 2009. Justice Leonardo-De Castro, however, taking common cause with Justice Bersamin to grant the motion for reconsideration of the April 28, 2009 Resolution and to recall the entry of judgment, stated the observation, and with reason, that the entry was effected "before the Court could act on the aforesaid motion which was filed within the 15-day period counted from receipt of the April 28, 2009 Resolution."12

Forthwith, respondent LGUs filed a Motion for Reconsideration of the Resolution of June 2, 2009 to which some of the petitioners and petitioners-in-intervention filed their respective comments. The Court will now rule on this incident. But first, we set and underscore some basic premises:

(1) The initial motion to reconsider the November 18, 2008 Decision, as Justice Leonardo-De Castro noted, indeed raised new and substantial issues, inclusive of the matter of the correctness of the factual premises upon which the said decision was predicated. The 6-6 vote on the motion for reconsideration per the Resolution of March 31, 2009, which denied the motion on the sole ground that "the basic issues have already been passed upon" reflected a divided Court on the issue of whether or not the underlying Decision of November 18, 2008 had indeed passed upon the basic issues raised in the motion for reconsideration of the said decision;

(2) The aforesaid May 14, 2009 Motion to Amend Resolution of April 28, 2009 was precipitated by the tie vote which served as basis for the issuance of said resolution. This May 14, 2009 motion––which mainly argued that a tie vote is inadequate to declare a law unconstitutional–– remains unresolved; and

(3) Pursuant to Sec. 4(2), Art. VIII of the Constitution, all cases involving the constitutionality of a law shall be heard by the Court en banc and decided with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon.

The basic issue tendered in this motion for reconsideration of the June 2, 2009 Resolution boils down to whether or not the required vote set forth in the aforesaid Sec. 4(2), Art. VIII is limited only to the initial vote on the petition or also to the subsequent voting on the motion for reconsideration where the Court is called upon and actually votes on the constitutionality of a law or like issuances. Or, as applied to this case, would a minute resolution dismissing, on a tie vote, a motion for reconsideration on the sole stated ground––that the "basic issues have already been passed"–– suffice to hurdle the voting requirement required for a declaration of the unconstitutionality of the cityhood laws in question?

The 6-6 vote on the motion to reconsider the Resolution of March 31, 2009, which denied the initial motion on the sole ground that "the basic issues had already been passed upon" betrayed an evenly divided Court on the issue of whether or not the underlying Decision of November 18, 2008 had indeed passed upon the issues raised in the motion for reconsideration of the said decision. But at the end of the day, the single issue that matters and the vote that really counts really turn on the constitutionality of the cityhood laws. And be it remembered that the inconclusive 6-6 tie vote reflected in the April 28, 2009 Resolution was the last vote on the issue of whether or not the cityhood laws infringe the Constitution. Accordingly, the motions of the respondent LGUs, in light of the 6-6 vote, should be deliberated anew until the required concurrence on the issue of the validity or invalidity of the laws in question is, on the merits, secured.

It ought to be clear that a deadlocked vote does not reflect the "majority of the Members" contemplated in Sec. 4 (2) of Art. VIII of the Constitution, which requires that:

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LCP vs. COMELECAll cases involving the constitutionality of a treaty, international or executive agreement, or law shall be heard by the Supreme Court en banc, x x x shall be decided with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon. (Emphasis added.)

Webster defines "majority" as "a number greater than half of a total."13 In plain language, this means 50% plus one. In Lambino v. Commission on Elections, Justice, now Chief Justice, Puno, in a separate opinion, expressed the view that "a deadlocked vote of six (6) is not a majority and a non-majority cannot write a rule with precedential value."14

As may be noted, the aforequoted Sec. 4 of Art. VIII, as couched, exacts a majority vote in the determination of a case involving the constitutionality of a statute, without distinguishing whether such determination is made on the main petition or thereafter on a motion for reconsideration. This is as it should be, for, to borrow from the late Justice Ricardo J. Francisco: "x x x [E]ven assuming x x x that the constitutional requirement on the concurrence of the ‘majority’ was initially reached in the x x x ponencia, the same is inconclusive as it was still open for review by way of a motion for reconsideration."15

To be sure, the Court has taken stock of the rule on a tie-vote situation, i.e., Sec. 7, Rule 56 and the complementary A.M. No. 99-1-09- SC, respectively, providing that:

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.

A.M. No. 99-1-09-SC – x x x A motion for reconsideration 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 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.

But since the instant cases fall under Sec. 4 (2), Art. VIII of the Constitution, the aforequoted provisions 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." To repeat, the last vote on the issue of the constitutionality of the cityhood bills is that reflected in the April 28, 2009 Resolution––a 6-6 deadlock.

On the postulate then that first, the finality of the November 18, 2008 Decision has yet to set in, the issuance of the precipitate16 entry of judgment notwithstanding, and second, the deadlocked vote on the second motion for reconsideration did not definitely settle the constitutionality of the cityhood laws, the Court is inclined to take another hard look at the underlying decision. Without belaboring in their smallest details the arguments for and against the procedural dimension of this disposition, it bears to stress that the Court has the power to suspend its own rules when the ends of justice would be served thereby.17 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 must be eschewed, if they result in technicalities that tend to frustrate rather than promote substantial justice. 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.18 Time and again, this Court has suspended its own rules or excepted a particular case from their operation whenever the higher interests of justice so require.19

While perhaps not on all fours with the case, because it involved a purely business transaction, what the Court said in Chuidian v. Sandiganbayan20 is most apropos:

To reiterate what the Court has said in Ginete vs. Court of Appeals and other cases, the rules of procedure should be viewed as mere instruments designed to facilitate the attainment of justice. They are not to be applied with severity and rigidity when such application would clearly defeat the very rationale for their conception and existence. Even the Rules of Court reflects this principle. The power to suspend or even disregard rules, inclusive of the one-motion rule, can be

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LCP vs. COMELECso pervasive and compelling as to alter even that which this Court has already declared to be final. The peculiarities of this case impel us to do so now.

The Court, by a vote of 6-4, grants the respondent LGUs’ motion for reconsideration of the Resolution of June 2, 2009, as well as their May 14, 2009 motion to consider the second motion for reconsideration of the November 18, 2008 Decision unresolved, and also grants said second motion for reconsideration.

This brings us to the substantive aspect of the case.

The Undisputed Factual Antecedents in Brief

During the 11th Congress,21 fifty-seven (57) cityhood bills were filed before the House of Representatives.22 Of the fifty-seven (57), thirty-three (33) eventually became laws. The twenty-four (24) other bills were not acted upon.

Later developments saw the introduction in the Senate of Senate Bill (S. Bill) No. 215723 to amend Sec. 450 of Republic Act No. (RA) 7160, otherwise known as the Local Government Code (LGC) of 1991. The proposed amendment sought to increase the income requirement to qualify for conversion into a city from PhP 20 million average annual income to PhP 100 million locally generated income.

In March 2001, S. Bill No. 2157 was signed into law as RA 9009 to take effect on June 30, 2001. As thus amended by RA 9009, Sec. 450 of the LGC of 1991 now provides that "[a] municipality x x x may be converted into a component city if it has a [certified] locally generated average annual income x x x of at least [PhP 100 million] for the last two (2) consecutive years based on 2000 constant prices."

After the effectivity of RA 9009, the Lower House of the 12th Congress adopted in July 2001 House (H.) Joint Resolution No. 2924 which, as its title indicated, sought to exempt from the income requirement prescribed in RA 9009 the 24 municipalities whose conversions into cities were not acted upon during the previous Congress. The 12th Congress ended without the Senate approving H. Joint Resolution No. 29.

Then came the 13th Congress (July 2004 to June 2007), which saw the House of Representatives re-adopting H. Joint Resolution No. 29 as H. Joint Resolution No. 1 and forwarding it to the Senate for approval.

The Senate, however, again failed to approve the joint resolution. During the Senate session held on November 6, 2006, Senator Aquilino Pimentel, Jr. asserted that passing H. Resolution No. 1 would, in net effect, allow a wholesale exemption from the income requirement imposed under RA 9009 on the municipalities. For this reason, he suggested the filing by the House of Representatives of individual bills to pave the way for the municipalities to become cities and then forwarding them to the Senate for proper action.25

Heeding the advice, sixteen (16) municipalities filed, through their respective sponsors, individual cityhood bills. Common to all 16 measures was a provision exempting the municipality covered from the PhP 100 million income requirement.

As of June 7, 2007, both Houses of Congress had approved the individual cityhood bills, all of which eventually lapsed into law on various dates. Each cityhood law directs the COMELEC, within thirty (30) days from its approval, to hold a plebiscite to determine whether the voters approve of the conversion.

As earlier stated, the instant petitions seek to declare the cityhood laws unconstitutional for violation of Sec. 10, Art. X of the Constitution, as well as for violation of the equal-protection clause. The wholesale conversion of municipalities into cities, the petitioners bemoan, will reduce the share of existing cities in the Internal Revenue Allotment (IRA), since more cities will partake of the internal revenue set aside for all cities under Sec. 285 of the LGC of 1991.26

Petitioners-in-intervention, LPC members themselves, would later seek leave and be allowed to intervene.

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LCP vs. COMELECAside from their basic plea to strike down as unconstitutional the cityhood laws in question, petitioners and petitioners-in-intervention collectively pray that an order issue enjoining the COMELEC from conducting plebiscites in the affected areas. An alternative prayer would urge the Court to restrain the poll body from proclaiming the plebiscite results.

On July 24, 2007, the Court en banc resolved to consolidate the petitions and the petitions-in-intervention. On March 11, 2008, it heard the parties in oral arguments.

The Issues

In the main, the issues to which all others must yield pivot on whether or not the cityhood laws violate (1) Sec. 10. Art. X of the Constitution and (2) the equal protection clause.

In the November 18, 2008 Decision granting the petitions, Justice Antonio T. Carpio, for the Court, resolved the twin posers in the affirmative and accordingly declared the cityhood laws unconstitutional, deviating as they do from the uniform and non-discriminatory income criterion prescribed by the LGC of 1991. In so doing, the ponencia veritably agreed with the petitioners that the Constitution, in clear and unambiguous language, requires that all the criteria for the creation of a city shall be embodied and written in the LGC, and not in any other law.

After a circumspect reflection, the Court is disposed to reconsider.

Petitioners’ threshold posture, characterized by a strained interpretation of the Constitution, if accorded cogency, would veritably curtail and cripple Congress’ valid exercise of its authority to create political subdivisions.

By constitutional design27 and as a matter of long-established principle, the power to create political subdivisions or LGUs is essentially legislative in character.28 But even without any constitutional grant, Congress can, by law, create, divide, merge, or altogether abolish or alter the boundaries of a province, city, or municipality. We said as much in the fairly recent case, Sema v. CIMELEC.29 The 1987 Constitution, under its Art. X, Sec. 10, nonetheless provides for the creation of LGUs, thus:

Section 10. 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.)

As may be noted, the afore-quoted provision specifically provides for the creation of political subdivisions "in accordance with the criteria established in the local government code," subject to the approval of the voters in the unit concerned. The criteria referred to are the verifiable indicators of viability, i.e., area, population, and income, now set forth in Sec. 450 of the LGC of 1991, as amended by RA 9009. The petitioners would parlay the thesis that these indicators or criteria must be written only in the LGC and not in any other statute. Doubtless, the code they are referring to is the LGC of 1991. Pushing their point, they conclude that the cityhood laws that exempted the respondent LGUs from the income standard spelled out in the amendatory RA 9009 offend the Constitution.

Petitioners’ posture does not persuade.

The supposedly infringed Art. X, Sec. 10 is not a new constitutional provision. Save for the use of the term "barrio" in lieu of "barangay," "may be" instead of "shall," the change of the phrase "unit or units" to "political unit" and the addition of the modifier "directly" to the word "affected," the aforesaid provision is a substantial reproduction of Art. XI, Sec. 3 of the 1973 Constitution, which reads:

Section 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 approval by a majority of the votes cast in a plebiscite in the unit or units affected. (Emphasis supplied.)

It bears notice, however, that the "code" similarly referred to in the 1973 and 1987 Constitutions is clearly but a law Congress enacted. This is consistent with the aforementioned plenary power of Congress to create political units. Necessarily, since Congress wields the vast poser of creating political subdivisions, surely it can exercise the lesser

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LCP vs. COMELECauthority of requiring a set of criteria, standards, or ascertainable indicators of viability for their creation. Thus, the only conceivable reason why the Constitution employs the clause "in accordance with the criteria established in the local government code" is to lay stress that it is Congress alone, and no other, which can impose the criteria. The eminent constitutionalist, Fr. Joaquin G. Bernas, S.J., in his treatise on Constitutional Law, specifically on the subject provision, explains:

Prior to 1965, there was a certain lack of clarity with regard to the power to create, divide, merge, dissolve, or change the boundaries of municipal corporations. The extent to which the executive may share in this power was obscured by Cardona v. Municipality of Binangonan.30 Pelaez v. Auditor General subsequently clarified the Cardona case when the Supreme Court said that "the authority to create municipal corporations is essentially legislative in nature."31 Pelaez, however, conceded that "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."32 Pelaez was silent about division, merger, and dissolution of municipal corporations. But since division in effect creates a new municipality, and both dissolution and merger in effect abolish a legal creation, it may fairly be inferred that these acts are also legislative in nature.

Section 10 [Art. X of the 1987 Constitution], which is a legacy from the 1973 Constitution, goes further than the doctrine in the Pelaez case. It not only makes creation, division, merger, abolition or substantial alteration of boundaries of provinces, cities, municipalities x x x subject to "criteria established in the local government code,"thereby declaring these actions properly legislative, but it also makes creation, division, merger, abolition or substantial alteration of boundaries "subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected."33 x x x (Emphasis added.)

It remains to be observed at this juncture that when the 1987 Constitution speaks of the LGC, the reference cannot be to any specific statute or codification of laws, let alone the LGC of 1991.34 Be it noted that at the time of the adoption of the 1987 Constitution, Batas Pambansa Blg. (BP) 337, the then LGC, was still in effect. Accordingly, had the framers of the 1987 Constitution intended to isolate the embodiment of the criteria only in the LGC, then they would have actually referred to BP 337. Also, they would then not have provided for the enactment by Congress of a new LGC, as they did in Art. X, Sec. 335 of the Constitution.

Consistent with its plenary legislative power on the matter, Congress can, via either a consolidated set of laws or a much simpler, single-subject enactment, impose the said verifiable criteria of viability. These criteria need not be embodied in the local government code, albeit this code is the ideal repository to ensure, as much as possible, the element of uniformity. Congress can even, after making a codification, enact an amendatory law, adding to the existing layers of indicators earlier codified, just as efficaciously as it may reduce the same. In this case, the amendatory RA 9009 upped the already codified income requirement from PhP 20 million to PhP 100 million. At the end of the day, the passage of amendatory laws is no different from the enactment of laws, i.e., the cityhood laws specifically exempting a particular political subdivision from the criteria earlier mentioned. Congress, in enacting the exempting law/s, effectively decreased the already codified indicators.

Petitioners’ theory that Congress must provide the criteria solely in the LGC and not in any other law strikes the Court as illogical. For if we pursue their contention to its logical conclusion, then RA 9009 embodying the new and increased income criterion would, in a way, also suffer the vice of unconstitutionality. It is startling, however, that petitioners do not question the constitutionality of RA 9009, as they in fact use said law as an argument for the alleged unconstitutionality of the cityhood laws.

As it were, Congress, through the medium of the cityhood laws, validly decreased the income criterion vis-à-vis the respondent LGUs, but without necessarily being unreasonably discriminatory, as shall be discussed shortly, by reverting to the PhP 20 million threshold what it earlier raised to PhP 100 million. The legislative intent not to subject respondent LGUs to the more stringent requirements of RA 9009 finds expression in the following uniform provision of the cityhood laws:

Exemption from Republic Act No. 9009. – The City of x x x shall be exempted from the income requirement prescribed under Republic Act No. 9009.

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LCP vs. COMELECIn any event, petitioners’ constitutional objection would still be untenable even if we were to assume purely ex hypothesi the correctness of their underlying thesis, viz: that the conversion of a municipality to a city shall be in accordance with, among other things, the income criterion set forth in the LGC of 1991, and in no other; otherwise, the conversion is invalid. We shall explain.

Looking at the circumstances behind the enactment of the laws subject of contention, the Court finds that the LGC-amending RA 9009, no less, intended the LGUs covered by the cityhood laws to be exempt from the PhP 100 million income criterion. In other words, the cityhood laws, which merely carried out the intent of RA 9009, adhered, in the final analysis, to the "criteria established in the Local Government Code," pursuant to Sec. 10, Art. X of the 1987 Constitution. We shall now proceed to discuss this exemption angle.36

Among the criteria established in the LGC pursuant to Sec.10, Art. X of the 1987 Constitution are those detailed in Sec. 450 of the LGC of 1991 under the heading "Requisites for Creation." The section sets the minimum income qualifying bar before a municipality or a cluster of barangays may be considered for cityhood. Originally, Sec. 164 of BP 337 imposed an average regular annual income "of at least ten million pesos for the last three consecutive years" as a minimum income standard for a municipal-to-city conversion. The LGC that BP 337 established was superseded by the LGC of 1991 whose then Sec. 450 provided that "[a] municipality or cluster of barangays may be converted into a component city if it has an average annual income, x x x 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." RA 9009 in turn amended said Sec. 450 by further increasing the income requirement to PhP 100 million, 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:

x x x x

(c) The average annual income shall include the income accruing to the general fund, exclusive of special funds, transfers, and non-recurring income. (Emphasis supplied.)

The legislative intent is not at all times accurately reflected in the manner in which the resulting law is couched. Thus, applying a verba legis37 or strictly literal interpretation of a statute may render it meaningless and lead to inconvenience, an absurd situation or injustice.38 To obviate this aberration, and bearing in mind the principle that the intent or the spirit of the law is the law itself,39 resort should be to the rule that the spirit of the law controls its letter.40

It is in this respect that the history of the passage of RA 9009 and the logical inferences derivable therefrom assume relevancy in discovering legislative intent.41

The rationale behind the enactment of RA 9009 to amend Sec. 450 of the LGC of 1991 can reasonably be deduced from Senator Pimentel’s sponsorship speech on S. Bill No. 2157. Of particular significance is his statement regarding the basis for the proposed increase from PhP 20 million to PhP 100 million in the income requirement for municipalities wanting to be converted into cities, 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 [LGC]. However, it is a fact that there is a mad rush of municipalities wanting to be converted into cities. Whereas in 1991, when the [LGC] was approved, there were only 60 cities, today the number has increased to 85 cities, with 41 more municipalities applying for conversion x x x. 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 [LGC], 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.

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LCP vs. COMELECCongress to be sure knew, when RA 9009 was being deliberated upon, of the pendency of several bills on cityhood, wherein the applying municipalities were qualified under the then obtaining PhP 20 million-income threshold. These included respondent LGUs. Thus, equally noteworthy is the ensuing excerpts from the floor exchange between then Senate President Franklin Drilon and Senator Pimentel, the latter stopping short of saying that the income threshold of PhP 100 million under S. Bill No. 2157 would not apply to municipalities that have pending cityhood bills, thus:

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

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 x x x [if] 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 x x x that it will apply to those bills which are already approved by the House under the old version of the [LGC] 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.42 (Emphasis and underscoring supplied.)

What the foregoing Pimental-Drilon exchange eloquently indicates are the following complementary legislative intentions: (1) the then pending cityhood bills would be outside the pale of the minimum income requirement of PhP 100 million that S. Bill No. 2159 proposes; and (2) RA 9009 would not have any retroactive effect insofar as the cityhood bills are concerned.

Given the foregoing perspective, it is not amiss to state that the basis for the inclusion of the exemption clause of the cityhood laws is the clear-cut intent of Congress of not according retroactive effect to RA 9009. Not only do the congressional records bear the legislative intent of exempting the cityhood laws from the income requirement of PhP 100 million. Congress has now made its intention to exempt express in the challenged cityhood laws.

Legislative intent is part and parcel of the law, the controlling factor in interpreting a statute. In construing a statute, the proper course is to start out and follow the true intent of the Legislature and to adopt the sense that best harmonizes with the context and promotes in the fullest manner the policy and objects of the legislature.43 In fact, any interpretation that runs counter to the legislative intent is unacceptable and invalid.44 Torres v. Limjapcould not have been more precise:

The intent of a Statute is the Law. – If a statute is valid, it is to have effect according to the purpose and intent of the lawmaker. The intent is x x x the essence of the law and the primary rule of construction is to ascertain and give effect to that intent. The intention of the legislature in enacting a law is the law itself, and must be enforced when ascertained, although it may not be consistent with the strict letter of the statute. Courts will not follow the letter of a statute when it leads away from the true intent and purpose of the legislature and to conclusions inconsistent with the general purpose of the act. Intent is the spirit which gives life to a legislative enactment. In construing statutes the proper course is to start out and follow the true intent of the legislature x x x.45 (Emphasis supplied.)

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LCP vs. COMELECAs emphasized at the outset, behind every law lies the presumption of constitutionality.46 Consequently, to him who would assert the unconstitutionality of a statute belongs the burden of proving otherwise. Laws will only be declared invalid if a conflict with the Constitution is beyond reasonable doubt.47 Unfortunately for petitioners and petitioners-in-intervention, they failed to discharge their heavy burden.

It is contended that the deliberations on the cityhood bills and the covering joint resolution were undertaken in the 11th and/or the 12th Congress. Accordingly, so the argument goes, such deliberations, more particularly those on the unapproved resolution exempting from RA 9009 certain municipalities, are without significance and would not qualify as extrinsic aids in construing the cityhood laws that were passed during the 13th Congress, Congress not being a continuing body.

The argument is specious and glosses over the reality that the cityhood bills––which were already being deliberated upon even perhaps before the conception of RA 9009––were again being considered during the 13th Congress after being tossed around in the two previous Congresses. And specific reference to the cityhood bills was also made during the deliberations on RA 9009. At the end of the day, it is really immaterial if Congress is not a continuing legislative body. What is important is that the debates, deliberations, and proceedings of Congress and the steps taken in the enactment of the law, in this case the cityhood laws in relation to RA 9009 or vice versa, were part of its legislative history and may be consulted, if appropriate, as aids in the interpretation of the law.48And of course the earlier cited Drilon-Pimentel exchange on whether or not the 16 municipalities in question would be covered by RA 9009 is another vital link to the historical chain of the cityhood bills. This and other proceedings on the bills are spread in the Congressional journals, which cannot be conveniently reduced to pure rhetoric without meaning whatsoever, on the simplistic and non-sequitur pretext that Congress is not a continuing body and that unfinished business in either chamber is deemed terminated at the end of the term of Congress.

This brings us to the challenge to the constitutionality of cityhood laws on equal protection grounds.

To the petitioners, the cityhood laws, by granting special treatment to respondent municipalities/LGUs by way of exemption from the standard PhP 100 million minimum income requirement, violate Sec.1, Art. III of the Constitution, which in part provides that no person shall "be denied the equal protection of the laws."

Petitioners’ challenge is not well taken. At its most basic, the equal protection clause proscribes undue favor as well as hostile discrimination. Hence, a law need not operate with equal force on all persons or things to be conformable with Sec. 1, Art. III of the Constitution.

The equal protection guarantee is embraced in the broader and elastic concept of due process, every unfair discrimination being an offense against the requirements of justice and fair play. It has nonetheless come as a separate clause in Sec. 1, Art. III of the Constitution to provide for a more specific protection against any undue discrimination or antagonism from government. Arbitrariness in general may be assailed on the basis of the due process clause. But if a particular challenged act partakes of an unwarranted partiality or prejudice, the sharper weapon to cut it down is the equal protection clause.49 This constitutional protection extends to all persons, natural or artificial, within the territorial jurisdiction. Artificial persons, as the respondent LGUs herein, are, however, entitled to protection only insofar as their property is concerned.50

In the proceedings at bar, petitioner LCP and the intervenors cannot plausibly invoke the equal protection clause, precisely because no deprivation of property results by virtue of the enactment of the cityhood laws. The LCP’s claim that the IRA of its member-cities will be substantially reduced on account of the conversion into cities of the respondent LGUs would not suffice to bring it within the ambit of the constitutional guarantee. Indeed, it is presumptuous on the part of the LCP member-cities to already stake a claim on the IRA, as if it were their property, as the IRA is yet to be allocated. For the same reason, the municipalities that are not covered by the uniform exemption clause in the cityhood laws cannot validly invoke constitutional protection. For, at this point, the conversion of a municipality into a city will only affect its status as a political unit, but not its property as such.

As a matter of settled legal principle, the fundamental right of equal protection does not require absolute equality. It is enough that all persons or things similarly situated should be treated alike, both as to rights or privileges conferred and responsibilities or obligations imposed. The equal protection clause does not preclude the state from recognizing and acting upon factual differences between individuals and classes. It recognizes that inherent in the right to legislate is the

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LCP vs. COMELECright to classify,51 necessarily implying that the equality guaranteed is not violated by a legislation based on reasonable classification. Classification, to be reasonable, must (1) rest on substantial distinctions; (2) be germane to the purpose of the law; (3) not be limited to existing conditions only; and (4) apply equally to all members of the same class.52 The Court finds that all these requisites have been met by the laws challenged as arbitrary and discriminatory under the equal protection clause.

As things stand, the favorable treatment accorded the sixteen (16) municipalities by the cityhood laws rests on substantial distinction. Indeed, respondent LGUs, which are subjected only to the erstwhile PhP 20 million income criterion instead of the stringent income requirement prescribed in RA 9009, are substantially different from other municipalities desirous to be cities. Looking back, we note that respondent LGUs had pending cityhood bills before the passage of RA 9009. There lies part of the tipping difference. And years before the enactment of the amendatory RA 9009, respondents LGUs had already met the income criterion exacted for cityhood under the LGC of 1991. Due to extraneous circumstances, however, the bills for their conversion remained unacted upon by Congress. As aptly observed by then Senator, now Manila Mayor, Alfredo Lim in his speech sponsoring H. Joint Resolution No. 1, or the cityhood bills, respondent LGUs saw themselves confronted with the "changing of the rules in the middle of the game." Some excerpts of Senator Lim’s sponsorship speech:

x x x [D]uring the Eleventh Congress, fifty-seven (57) municipalities applied for city status, confident that each has met the requisites for conversion under Section 450 of the [LGC], particularly the income threshold of P20 million. Of the 57 that filed, thirty-two (32) were enacted into law; x x x while the rest – twenty-four (24) in all – failed to pass through Congress. Shortly before the long recess of Congress in February 2001, to give way to the May elections x x x, Senate Bill No. 2157, which eventually became [RA] 9009, was passed into law, effectively raising the income requirement for creation of cities to a whooping P100 million x x x. Much as the proponents of the 24 cityhood bills then pending struggled to beat the effectivity of the law on June 30, 2001, events that then unfolded were swift and overwhelming that Congress just did not have the time to act on the measures.

Some of these intervening events were x x x the impeachment of President Estrada x x x and the May 2001 elections.

The imposition of a much higher income requirement for the creation of a city x x x was unfair; like any sport – changing the rules in the middle of the game.

Undaunted, they came back during the [12th] Congress x x x. They filed House Joint Resolution No. 29 seeking exemption from the higher income requirement of RA 9009. For the second time, [however], time ran out from them.

For many of the municipalities whose Cityhood Bills are now under consideration, this year, at the closing days of the [13th] Congress, marks their ninth year appealing for fairness and justice. x x x

I, for one, share their view that fairness dictates that they should be given a legal remedy by which they could be allowed to prove that they have all the necessary qualifications for city status using the criteria set forth under the [LGC] prior to its amendment by RA 9009. Hence, when House Joint Resolution No. 1 reached the Senate x x x I immediately set the public hearing x x x. On July 25, 2006, I filed Committee Report No. 84 x x x. On September 6, I delivered the sponsorship x x x.

x x x By November 14, the measure had reverted to the period of individual amendments. This was when the then acting majority leader, x x x informed the Body that Senator Pimentel and the proponents of House Joint Resolution No. 1 have agreed to the proposal of the Minority Leader for the House to first approve the individual Cityhood Bills of the qualified municipalities, along with the provision exempting each of them from the higher income requirement of RA 9009. x x x This led to the certification issued by the proponents short-listing fourteen (14) municipalities deemed to be qualified for city-status.

Acting on the suggestion of Senator Pimentel, the proponents lost no time in working for the approval by the House of Representatives of their individual Cityhood Bills, each containing a provision of exemption from the higher income requirement of RA 9009. On the last session day of last year, December 21, the House transmitted to the Senate the Cityhood Bills of twelve out of the 14 pre-qualified municipalities. Your Committee immediately conducted the public hearing x x x.

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LCP vs. COMELECThe whole process I enumerated [span] three Congresses x x x.

In essence, the Cityhood Bills now under consideration will have the same effect as that of House Joint Resolution No. 1 because each of the 12 bills seeks exemption from the higher income requirement of RA 9009. The proponents are invoking the exemption on the basis of justice and fairness.

Each of the 12 municipalities has all the requisites for conversion into a component city based on the old requirements set forth under Section 450 of the [LGC], prior to its amendment by RA 9009, namely: x x x53(Emphasis supplied.)

In hindsight, the peculiar conditions, as depicted in Senator Lim’s speech, which respondent LGUs found themselves in were unsettling. They were qualified cityhood applicants before the enactment of RA 009. Because of events they had absolutely nothing to do with, a spoiler in the form of RA 9009 supervened. Now, then, to impose on them the much higher income requirement after what they have gone through would appear to be indeed "unfair," to borrow from Senator Lim. Thus, the imperatives of fairness dictate that they should be given a legal remedy by which they would be allowed to prove that they have all the necessary qualifications for city status, using the criteria set forth under the LGC of 1991 prior to its amendment by RA 9009. Truly, the peculiar conditions of respondent LGUs, which are actual and real, provide sufficient grounds for legislative classification.

To be sure, courts, regardless of doubts they might be entertaining, cannot question the wisdom of the congressional classification, if reasonable, or the motivation underpinning the classification.54 By the same token, they do not sit to determine the propriety or efficacy of the remedies Congress has specifically chosen to extend. That is its prerogative. The power of the Legislature to make distinctions and classifications among persons is, to reiterate, neither curtailed nor denied by the equal protection clause. A law can be violative of the constitutional limitation only when the classification is without reasonable basis.

The classification is also germane to the purpose of the law. The exemption of respondent LGUs/municipalities from the PhP 100 million income requirement was meant to reduce the inequality occasioned by the passage of the amendatory RA 9009. From another perspective, the exemption was unquestionably designed to insure that fairness and justice would be accorded respondent LGUs. Let it be noted that what were then the cityhood bills covering respondent LGUs were part and parcel of the original 57 conversion bills filed in the 11th Congress, 33 of those became laws before the adjournment of that Congress. The then bills of the challenged cityhood laws were not acted upon due, inter alia, to the impeachment of then President Estrada, the related jueteng scandal investigations conducted before, and the EDSA events that followed the aborted impeachment.

While the equal protection guarantee frowns upon the creation of a privileged class without justification, inherent in the equality clause is the exhortation for the Legislature to pass laws promoting equality or reducing existing inequalities. The enactment of the cityhood laws was in a real sense an attempt on the part of Congress to address the inequity dealt the respondent LGUs. These laws positively promoted the equality and eliminated the inequality, doubtless unintended, between respondent municipalities and the thirty-three (33) other municipalities whose cityhood bills were enacted during the 11th Congress. Respondent municipalities and the 33 other municipalities, which had already been elevated to city status, were all found to be qualified under the old Sec. 450 of the LGC of 1991 during the 11th Congress. As such, both respondent LGUs and the 33 other former municipalities are under like circumstances and conditions. There is, thus, no rhyme or reason why an exemption from the PhP 100 million requirement cannot be given to respondent LGUs. Indeed, to deny respondent LGUs/municipalities the same rights and privileges accorded to the 33 other municipalities when, at the outset they were similarly situated, is tantamount to denying the former the protective mantle of the equal protection clause. In effect, petitioners and petitioners-in-intervention are creating an absurd situation in which an alleged violation of the equal protection clause of the Constitution is remedied by another violation of the same clause. The irony is not lost to the Court.

Then too the non-retroactive effect of RA 9009 is not limited in application only to conditions existing at the time of its enactment. It is intended to apply for all time, as long as the contemplated conditions obtain. To be more precise, the legislative intent underlying the enactment of RA 9009 to exclude would-be-cities from the PhP 100 million criterion would hold sway, as long as the corresponding cityhood bill has been filed before the effectivity of RA 9009 and the concerned municipality qualifies for conversion into a city under the original version of Sec. 450 of the LGC of 1991.

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LCP vs. COMELECViewed in its proper light, the common exemption clause in the cityhood laws is an application of the non-retroactive effect of RA 9009 on the cityhood bills. It is not a declaration of certain rights, but a mere declaration of prior qualification and/or compliance with the non-retroactive effect of RA 9009.

Lastly and in connection with the third requisite, the uniform exemption clause would apply to municipalities that had pending cityhood bills before the passage of RA 9009 and were compliant with then Sec. 450 of the LGC of 1991, which prescribed an income requirement of PhP 20 million. It is hard to imagine, however, if there are still municipalities out there belonging in context to the same class as the sixteen (16) respondent LGUs. Municipalities that cannot claim to belong to the same class as the 16 cannot seek refuge in the cityhood laws. The former have to comply with the PhP 100 million income requirement imposed by RA 9009.

A final consideration. The existence of the cities consequent to the approval of the creating, but challenged, cityhood laws in the plebiscites held in the affected LGUs is now an operative fact. New cities appear to have been organized and are functioning accordingly, with new sets of officials and employees. Other resulting events need not be enumerated. The operative fact doctrine provides another reason for upholding the constitutionality of the cityhood laws in question.

In view of the foregoing discussion, the Court ought to abandon as it hereby abandons and sets aside the Decision of November 18, 2008 subject of reconsideration. And by way of summing up the main arguments in support of this disposition, the Court hereby declares the following:

(1) Congress did not intend the increased income requirement in RA 9009 to apply to the cityhood bills which became the cityhood laws in question. In other words, Congress intended the subject cityhood laws to be exempted from the income requirement of PhP 100 million prescribed by RA 9009;

(2) The cityhood laws merely carry out the intent of RA 9009, now Sec. 450 of the LGC of 1991, to exempt respondent LGUs from the PhP 100 million income requirement;

(3) The deliberations of the 11th or 12th Congress on unapproved bills or resolutions are extrinsic aids in interpreting a law passed in the 13th Congress. It is really immaterial if Congress is not a continuing body. The hearings and deliberations during the 11th and 12th Congress may still be used as extrinsic reference inasmuch as the same cityhood bills which were filed before the passage of RA 9009 were being considered during the 13th Congress. Courts may fall back on the history of a law, as here, as extrinsic aid of statutory construction if the literal application of the law results in absurdity or injustice.

(4) The exemption accorded the 16 municipalities is based on the fact that each had pending cityhood bills long before the enactment of RA 9009 that substantially distinguish them from other municipalities aiming for cityhood. On top of this, each of the 16 also met the PhP 20 million income level exacted under the original Sec. 450 of the 1991 LGC.

And to stress the obvious, the cityhood laws are presumed constitutional. As we see it, petitioners have not overturned the presumptive constitutionality of the laws in question.

WHEREFORE, respondent LGUs’ Motion for Reconsideration dated June 2, 2009, their "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," dated May 14, 2009, and their second Motion for Reconsideration of the Decision dated November 18, 2008 are GRANTED. The June 2, 2009, the March 31, 2009, and April 31, 2009 Resolutions are REVERSED and SET ASIDE. The entry of judgment made on May 21, 2009 must accordingly be RECALLED.

The instant consolidated petitions and petitions-in-intervention are DISMISSED. The cityhood laws, namely Republic Act Nos. 9389, 9390, 9391, 9392, 9393, 9394, 9398, 9404, 9405, 9407, 9408, 9409, 9434, 9435, 9436, and 9491 are declared VALID and CONSTITUTIONAL.

SO ORDERED.

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LCP vs. COMELECRepublic of the Philippines

SUPREME COURT

Manila

EN BANC

LEAGUE OF CITIES OF THE PHILIPPINES(LCP) representedby 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, PROVINCEOF EASTERN SAMAR; and MUNICIPALITYOF 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 

 G.R. No. 176951

 

Present:

PUNO,* C.J.,

CARPIO,

CORONA,

CARPIO MORALES,

VELASCO, JR.,

NACHURA,*

LEONARDO-DE CASTRO,

BRION,

PERALTA,

BERSAMIN,

DEL CASTILLO

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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.

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

LEAGUE OF CITIES OF THE

PHILIPPINES (LCP) representedby 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 LAMITAN,

,*

ABAD, and

VILLARAMA, JR., JJ.

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LCP vs. COMELECPROVINCE 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; and MUNICIPALITY OF GUIHULNGAN,PROVINCE OF NEGROS ORIENTAL,

                                 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 OFCALAPAN, CITY OF HIMAMAYLAN, CITY OF

BATANGAS, CITY OF BAIS,

CITY OF CADIZ, and CITY OF TAGUM,

Petitioners-In-Intervention.

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

LEAGUE OF CITIES OF THE                 PHILIPPINES (LCP) representedby LCP National President                         

JERRY P. TREÑAS, CITY OF

 

G.R. No. 177499

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LCP vs. COMELECILOILO 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 CABADBARAN,        

PROVINCE OF AGUSAN DEL NORTE; MUNICIPALITY OF CARCAR, PROVINCE OF CEBU; and MUNICIPALITY OF EL SALVADOR, MISAMIS ORIENTAL,

                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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G.R. No.  178056

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Promulgated:

December 21, 2009

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

 

 

D E C I S I O NVELASCO, JR. J.:

 

Ratio legis est anima. The spirit rather than the letter of the law. A statute must be read according to its spirit or intent,[1] for what is within the spirit is within the statute although it is

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not within its letter, and that which is within the letter but not within the spirit is not within the statute.[2] Put a bit differently, that which is within the intent of the lawmaker is as much within the statute as if within the letter; and that which is within the letter of the statute is not within the statute unless within the intent of the lawmakers.[3] Withal, courts ought not to interpret and should not accept an interpretation that would defeat the intent of the law and its legislators. [4]

So as it is exhorted to pass on a challenge against the validity of an act of Congress, a co-equal branch of government, it behooves the Court to have at once one principle in mind: the presumption of constitutionality of statutes.[5] This presumption finds its roots in the tri-partite system of government and the corollary separation of powers, which enjoins the three great departments of the government to accord a becoming courtesy for each other’s acts, and not to interfere inordinately with the exercise by one of its official functions. Towards this end, courts ought to reject assaults against the validity of statutes, barring of course their clear unconstitutionality. To doubt is to sustain, the theory in context being that the law is the product of earnest studies by Congress to ensure that no constitutional prescription or concept is infringed.[6] Consequently, before a law duly challenged is nullified, an unequivocal breach of, or a clear conflict with, the Constitution, not merely a doubtful or argumentative one, must be demonstrated in such a manner as to leave no doubt in the mind of the Court.[7]

BACKGROUND

The consolidated petitions for prohibition commenced by the League of Cities of the Philippines (LCP), City of Iloilo, City of Calbayog, and Jerry P. Treñas [8] assail the constitutionality of the sixteen (16) laws,[9] each converting the municipality covered thereby into a city (cityhood laws, hereinafter) and seek to enjoin the Commission on Elections (COMELEC) from conducting plebiscites pursuant to subject laws.

          By Decision[10] dated November 18, 2008, the Court en banc, by a 6-5 vote, granted the

petitions and nullified the sixteen (16) cityhood laws for being violative of the Constitution,

specifically its Section 10, Article X and the equal protection clause.

 

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          Subsequently, respondent local government units (LGUs) moved for reconsideration,

raising, as one of the issues, the validity of the factual premises not contained in the pleadings of

the parties, let alone established, which became the bases of the Decision subject of

reconsideration.[11] By Resolution of March 31, 2009, a divided Court denied the motion for

reconsideration.

 

A second motion for reconsideration followed in which respondent LGUs prayed as

follows:

 WHEREFORE, respondents respectfully pray that the Honorable Court reconsider its

“Resolution” dated March 31, 2009, in so far as it denies for “lack of merit” respondents’ “Motion for Reconsideration” dated December 9, 2008 and in lieu thereof, considering that new and meritorious arguments are raised by respondents’ “Motion for Reconsideration” dated December 9, 2008 to grant afore-mentioned “Motion for Reconsideration” dated December 9, 2008 and dismiss the “Petitions For Prohibition” in the instant case.

 

 

Per Resolution dated April 28, 2009, the Court, voting 6-6, disposed of the motion as

follows: 

          By a vote of 6-6, the Motion for Reconsideration of the Resolution of 31 March 2009 is DENIED for lack of merit. The motion is denied since there is no majority that voted to overturn the Resolution of 31 March 2009. 

The Second Motion for Reconsideration of the Decision of 18 November 2008 is DENIED for being a prohibited pleading, and the Motion for Leave to Admit Attached Petition in Intervention x x x filed by counsel for Ludivina T. Mas, et al. are also DENIED. No further pleadings shall be entertained. Let entry of judgment be made in due course. x x x

  

          On May 14, 2009, respondent LGUs filed a 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

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Reconsideration of the Decision Dated November 18, 2008’ Remain Unresolved and to Conduct

Further Proceedings Thereon.”

 

Per its Resolution of June 2, 2009, the Court declared the May 14, 2009 motion adverted to

as expunged in light of the entry of judgment made on May 21, 2009. Justice Leonardo-De Castro,

however, taking common cause with Justice Bersamin to grant the motion for reconsideration of

the April 28, 2009 Resolution and to recall the entry of judgment, stated the observation, and with

reason, that the entry was effected “before the Court could act on the aforesaid motion which was

filed within the 15-day period counted from receipt of the April 28, 2009 Resolution.”[12]  

 

 Forthwith, respondent LGUs filed a Motion for Reconsideration of the Resolution of June 2,

2009 to which some of the petitioners and petitioners-in-intervention filed their respective

comments. The Court will now rule on this incident. But first, we set and underscore some basic

premises:

 

 (1) The initial motion to reconsider the November 18, 2008 Decision, as Justice Leonardo-

De Castro noted, indeed raised new and substantial issues, inclusive of the matter of the

correctness of the factual premises upon which the said decision was predicated.   The 6-6 vote on

the motion for reconsideration per the Resolution of March 31, 2009, which denied the motion on

the sole ground that “the basic issues have already been passed upon” reflected a divided Court on

the issue of whether or not the underlying Decision of November 18, 2008 had indeed passed upon

the basic issues raised in the motion for reconsideration of the said decision;

 

(2) The aforesaid May 14, 2009 Motion to Amend Resolution of April 28, 2009 was

precipitated by the tie vote which served as basis for the issuance of said resolution. This May 14,

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2009 motion––which mainly argued that a tie vote is inadequate to declare a law

unconstitutional––   remains unresolved; and

 

(3) Pursuant to Sec. 4(2), Art. VIII of the Constitution, all cases involving the

constitutionality of a law shall be heard by the Court en banc and decided with the concurrence of

a majority of the Members who actually took part in the deliberations on the issues in the case and

voted thereon.

 

The basic issue tendered in this motion for reconsideration of the June 2, 2009 Resolution

boils down to whether or not the required vote set forth in the aforesaid Sec. 4(2), Art. VIII is

limited only to the initial vote on the petition or also to the subsequent voting on the motion for

reconsideration where the Court is called upon and actually votes on the constitutionality of a law

or like issuances. Or, as applied to this case, would a minute resolution dismissing, on a tie vote, a

motion for reconsideration on the sole stated ground––that the “basic issues have already been

passed”–– suffice to hurdle the voting requirement required for a declaration of the

unconstitutionality of the cityhood laws in question?

 

The 6-6 vote on the motion to reconsider the Resolution of March 31, 2009, which denied

the initial motion on the sole ground that “the basic issues had already been passed upon” betrayed

an evenly divided Court on the issue of whether or not the underlying Decision of November 18,

2008 had indeed passed upon the issues raised in the motion for reconsideration of the said

decision.  But at the end of the day, the single issue that matters and the vote that really counts

really turn on the constitutionality of the cityhood laws.  And be it remembered that the

inconclusive 6-6 tie vote reflected in the April 28, 2009 Resolution was the last vote on the issue

of whether or not the cityhood laws infringe the Constitution. Accordingly, the motions of the

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respondent LGUs, in light of the 6-6 vote, should be deliberated anew until the required

concurrence on the issue of the validity or invalidity of the laws in question is, on the merits,

secured.

 

It ought to be clear that a deadlocked vote does not reflect the “majority of the Members”

contemplated in Sec. 4 (2) of Art. VIII of the Constitution, which requires that: 

 All cases involving the constitutionality of a treaty, international or executive agreement, or

law shall be heard by the Supreme Court en banc, x x x shall be decided with theconcurrence of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon. (Emphasis added.)

  

Webster defines “majority” as “a number greater than half of a total.” [13] In plain language,

this means 50% plus one. In Lambino v. Commission on Elections, Justice, now Chief Justice,

Puno, in a separate opinion, expressed the view that “a deadlocked vote of six (6) is not a

majority and a non-majority cannot write a rule with precedential value.”[14]

 

As may be noted, the aforequoted Sec. 4 of Art. VIII, as couched, exacts a majority vote in

the determination of a case involving the constitutionality of a statute, without distinguishing

whether such determination is made on the main petition or thereafter on a motion for

reconsideration. This is as it should be, for, to borrow from the late Justice Ricardo J. Francisco:

“x x x [E]ven assuming x x x that the constitutional requirement on the concurrence of the

‘majority’ was initially reached in the x x x ponencia, the same is inconclusive as it was still open

for review by way of a motion for reconsideration.”[15] 

 

To be sure, the Court has taken stock of the rule on a tie-vote situation, i.e., Sec. 7, Rule 56

and the complementary A.M. No. 99-1-09- SC, respectively, providing that:

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 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.

   A.M. No. 99-1-09-SC – x x x A motion for reconsideration 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 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. 

 

But since the instant cases fall under Sec. 4 (2), Art. VIII of the Constitution, the

aforequoted provisions 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.”  To repeat, the

last vote on the issue of the constitutionality of the cityhood bills is that reflected in the April 28,

2009 Resolution––a 6-6 deadlock.

 

On the postulate then that first, the finality of the November 18, 2008 Decision has yet to set in, the issuance of the precipitate[16] entry of judgment notwithstanding, and second, the deadlocked vote on the second motion for reconsideration did not definitely settle the constitutionality of the cityhood laws, the Court is inclined to take another hard look at the underlying decision. Without belaboring in their smallest details the arguments for and against the procedural dimension of this disposition, it bears to stress that the Court has the power to suspend its own rules when the ends of justice would be served thereby. [17] 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 must be eschewed, if they result in technicalities that tend to frustrate rather than promote substantial justice. 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. [18] Time and again, this Court has suspended its own rules or excepted a particular case from their operation whenever the higher interests of justice so require.[19]

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While perhaps not on all fours with the case, because it involved a purely business

transaction, what the Court said in Chuidian v. Sandiganbayan[20]is most apropos:

 To reiterate what the Court has said in Ginete vs. Court of Appeals and other cases, the rules

of procedure should be viewed as mere instruments designed to facilitate the attainment of justice. They are not to be applied with severity and rigidity when such application would clearly defeat the very rationale for their conception and existence. Even the Rules of Court reflects this principle. The power to suspend or even disregard rules, inclusive of the one-motion rule, can be so pervasive and compelling as to alter even that which this Court has already declared to be final. The peculiarities of this case impel us to do so now.

 

 

            The Court, by a vote of 6-4, grants the respondent LGUs’ motion for reconsideration of the Resolution of June 2, 2009, as well as their May 14, 2009 motion to consider the second motion for reconsideration of the November 18, 2008 Decision unresolved, and also grants said second motion for reconsideration.

 

This brings us to the substantive aspect of the case.

 

The Undisputed Factual Antecedents in Brief

During the 11th Congress,[21] fifty-seven (57) cityhood bills were filed before the House of Representatives.[22] Of the fifty-seven (57), thirty-three (33) eventually became laws. The twenty-four (24) other bills were not acted upon.

Later developments saw the introduction in the Senate of Senate Bill (S. Bill) No. 2157 [23] to amend Sec. 450 of Republic Act No. (RA) 7160, otherwise known as the Local Government Code (LGC) of 1991. The proposed amendment sought to increase the income requirement to qualify for conversion into a city from PhP 20 million average annual income to PhP 100 million locally generated income.

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In March 2001, S. Bill No. 2157 was signed into law as RA 9009 to take effect on June 30, 2001. As thus amended by RA 9009, Sec. 450 of the LGC of 1991 now provides that “[a] municipality x x x may be converted into a component city if it has a [certified] locally generated average annual income x x x of at least [PhP 100 million] for the last two (2) consecutive years based on 2000 constant prices.”

After the effectivity of RA 9009, the Lower House of the 12th Congress adopted in July 2001 House (H.) Joint Resolution No. 29[24] which, as its title indicated, sought to exempt from the income requirement prescribed in RA 9009 the 24 municipalities whose conversions into cities were not acted upon during the previous Congress. The 12th Congress ended without the Senate approving H. Joint Resolution No. 29.

Then came the 13th Congress (July 2004 to June 2007), which saw the House of Representatives re-adopting H. Joint Resolution No. 29 as H. Joint Resolution No. 1 and forwarding it to the Senate for approval.

The Senate, however, again failed to approve the joint resolution. During the Senate session held on November 6, 2006, Senator Aquilino Pimentel, Jr. asserted that passing H. Resolution No. 1 would, in net effect, allow a wholesale exemption from the income requirement imposed under RA 9009 on the municipalities. For this reason, he suggested the filing by the House of Representatives of individual bills to pave the way for the municipalities to become cities and then forwarding them to the Senate for proper action.[25]

Heeding the advice, sixteen (16) municipalities filed, through their respective sponsors, individual cityhood bills. Common to all 16 measures was a provision exempting the municipality covered from the PhP 100 million income requirement.

As of June 7, 2007, both Houses of Congress had approved the individual cityhood bills, all of which eventually lapsed into law on various dates. Each cityhood law directs the COMELEC, within thirty (30) days from its approval, to hold a plebiscite to determine whether the voters approve of the conversion.

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As earlier stated, the instant petitions seek to declare the cityhood laws unconstitutional for violation of Sec. 10, Art. X of the Constitution, as well as for violation of the equal-protection clause. The wholesale conversion of municipalities into cities, the petitioners bemoan, will reduce the share of existing cities in the Internal Revenue Allotment (IRA), since more cities will partake of the internal revenue set aside for all cities under Sec. 285 of the LGC of 1991.[26]

 

Petitioners-in-intervention, LPC members themselves, would later seek leave and be allowed to intervene.

Aside from their basic plea to strike down as unconstitutional the cityhood laws in question, petitioners and petitioners-in-intervention collectively pray that an order issue enjoining the COMELEC from conducting plebiscites in the affected areas. An alternative prayer would urge the Court to restrain the poll body from proclaiming the plebiscite results.

On July 24, 2007, the Court en banc resolved to consolidate the petitions and the petitions-in-intervention. On March 11, 2008, it heard the parties in oral arguments.

The Issues

In the main, the issues to which all others must yield pivot on whether or not the cityhood

laws violate (1) Sec. 10. Art. X of the Constitution and (2) the equal protection clause.

In the November 18, 2008 Decision granting the petitions, Justice Antonio T. Carpio, for the Court, resolved the twin posers in the affirmative and accordingly declared the cityhood laws unconstitutional, deviating as they do from the uniform and non-discriminatory income criterion prescribed by the LGC of 1991. In so doing, the ponencia veritably agreed with the petitioners that the Constitution, in clear and unambiguous language, requires that all the criteria for the creation of a city shall be embodied and written in the LGC, and not in any other law.

After a circumspect reflection, the Court is disposed to reconsider.

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Petitioners’ threshold posture, characterized by a strained interpretation of the Constitution, if accorded cogency, would veritably curtail and cripple Congress’ valid exercise of its authority to create political subdivisions.

By constitutional design[27] and as a matter of long-established principle, the power to create political subdivisions or LGUs is essentially legislative in character. [28] But even without any constitutional grant, Congress can, by law, create, divide, merge, or altogether abolish or alter the boundaries of a province, city, or municipality. We said as much in the fairly recent case, Sema v. CIMELEC.[29] The 1987 Constitution, under its Art. X, Sec. 10, nonetheless provides for the creation of LGUs, thus:

Section 10. 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.)

As may be noted, the afore-quoted provision specifically provides for the creation of political subdivisions “in accordance with the criteria established in the local government code,” subject to the approval of the voters in the unit concerned. The criteria referred to are the verifiable indicators of viability, i.e., area, population, and income, now set forth in Sec. 450 of the LGC of 1991, as amended by RA 9009. The petitioners would parlay the thesis that these indicators or criteria must be written only in the LGC and not in any other statute. Doubtless, the code they are referring to is the LGC of 1991. Pushing their point, they conclude that the cityhood laws that exempted the respondent LGUs from the income standard spelled out in the amendatory RA 9009 offend the Constitution.

Petitioners’ posture does not persuade.

The supposedly infringed Art. X, Sec. 10 is not a new constitutional provision. Save for the use of the term “barrio” in lieu of “barangay,” “may be” instead of “shall,” the change of the phrase “unit or units” to “political unit” and the addition of the modifier “directly” to the word “affected,” the aforesaid provision is a substantial reproduction of Art. XI, Sec. 3 of the 1973 Constitution, which reads:

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Section 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 approval by a majority of the votes cast in a plebiscite in the unit  or units affected. (Emphasis supplied.)

It bears notice, however, that the “code” similarly referred to in the 1973 and 1987 Constitutions is clearly but a law Congress enacted. This is consistent with the aforementioned plenary power of Congress to create political units. Necessarily, since Congress wields the vast poser of creating political subdivisions, surely it can exercise the lesser authority of requiring a set of criteria, standards, or ascertainable indicators of viability for their creation. Thus, the only conceivable reason why the Constitution employs the clause “in accordance with the criteria established in the local government code” is to lay stress that it is Congress alone, and no other, which can impose the criteria. The eminent constitutionalist, Fr. Joaquin G. Bernas, S.J., in his treatise on Constitutional Law, specifically on the subject provision, explains:

Prior to 1965, there was a certain lack of clarity with regard to the power to create, divide, merge, dissolve, or change the boundaries of municipal corporations. The extent to which the executive may share in this power was obscured by Cardona v. Municipality of Binangonan.[30] Pelaez v. Auditor General subsequently clarified the Cardonacase when the Supreme Court said that “the authority to create municipal corporations is essentially legislative in nature.”[31] Pelaez, however, conceded that “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.”[32] Pelaez was silent about division, merger, and dissolution of municipal corporations. But since division in effect creates a new municipality, and both dissolution and merger in effect abolish a legal creation, it may fairly be inferred that these acts are also legislative in nature.

Section 10 [Art. X of the 1987 Constitution], which is a legacy from the 1973 Constitution, goes further than the doctrine in the Pelaez case. It not only makes creation, division, merger, abolition or substantial alteration of boundaries of provinces, cities, municipalities x x x subject to “criteria established in the local government code,” thereby declaring   these  actions  properly   legislative, but it also makes creation, division, merger, abolition or substantial alteration of boundaries “subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected.”[33] x x x (Emphasis added.)

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It remains to be observed at this juncture that when the 1987 Constitution speaks of the LGC, the reference cannot be to any specific statute or codification of laws, let alone the LGC of 1991.[34] Be it noted that at the time of the adoption of the 1987 Constitution, Batas Pambansa Blg. (BP) 337, the then LGC, was still in effect. Accordingly, had the framers of the 1987 Constitution intended to isolate the embodiment of the criteria only in the LGC, then they would have actually referred to BP 337. Also, they would then not have provided for the enactment by Congress of a new LGC, as they did in Art. X, Sec. 3[35] of the Constitution.

Consistent with its plenary legislative power on the matter, Congress can, via either a consolidated set of laws or a much simpler, single-subject enactment, impose the said verifiable criteria of viability. These criteria need not be embodied in the local government code, albeit this code is the ideal repository to ensure, as much as possible, the element of uniformity. Congress can even, after making a codification, enact an amendatory law, adding to the existing layers of indicators earlier codified, just as efficaciously as it may reduce the same. In this case, the amendatory RA 9009 upped the already codified income requirement from PhP 20 million to PhP 100 million. At the end of the day, the passage of amendatory laws is no different from the enactment of laws, i.e., the cityhood laws specifically exempting a particular political subdivision from the criteria earlier mentioned. Congress, in enacting the exempting law/s, effectively decreased the already codified indicators.

Petitioners’ theory that Congress must provide the criteria solely in the LGC and not in any other law strikes the Court as illogical. For if we pursue their contention to its logical conclusion, then RA 9009 embodying the new and increased income criterion would, in a way, also suffer the vice of unconstitutionality. It is startling, however, that petitioners do not question the constitutionality of RA 9009, as they in fact use said law as an argument for the alleged unconstitutionality of the cityhood laws.

As it were, Congress, through the medium of the cityhood laws, validly decreased the income criterion vis-à-vis the respondent LGUs, but without necessarily being unreasonably discriminatory, as shall be discussed shortly, by reverting to the PhP 20 million threshold what it earlier raised to PhP 100 million. The legislative intent not to subject respondent LGUs to the more stringent requirements of RA 9009 finds expression in the following uniform provision of the cityhood laws:

 Exemption from Republic Act No. 9009. – The City of x x x shall be exempted from the

income requirement prescribed under Republic Act No. 9009.

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In any event, petitioners’ constitutional objection would still be untenable even if we were to assume purely ex hypothesi the correctness of their underlying thesis, viz: that the conversion of a municipality to a city shall be in accordance with, among other things, the income criterion set forth in the LGC of 1991, and in no other; otherwise, the conversion is invalid. We shall explain.

Looking at the circumstances behind the enactment of the laws subject of contention, the Court finds that the LGC-amending RA 9009, no less, intended the LGUs covered by the cityhood laws to be exempt from the PhP 100 million income criterion. In other words, the cityhood laws, which merely carried out the intent of RA 9009, adhered, in the final analysis, to the “criteria established   in   the   Local   Government   Code,” pursuant to Sec. 10, Art. X of the 1987 Constitution. We shall now proceed to discuss this exemption angle.[36]

Among the criteria established in the LGC pursuant to Sec.10, Art. X of the 1987 Constitution are those detailed in Sec. 450 of the LGC of 1991 under the heading “Requisites for Creation.” The section sets the minimum income qualifying bar before a municipality or a cluster of barangays may be considered for cityhood. Originally, Sec. 164 of BP 337 imposed an average regular annual income “of at least ten million pesos for the last three consecutive years” as a minimum income standard for a municipal-to-city conversion. The LGC that BP 337 established was superseded by the LGC of 1991 whose then Sec. 450 provided that “[a] municipality or cluster of barangays may be converted into a component city if it has an average annual income, x x x 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.” RA 9009 in turn amended said Sec. 450 by further increasing the income requirement to PhP 100 million, 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:

x x x x

(c) The average annual income shall include the income accruing to the general fund, exclusive of special funds, transfers, and non-recurring income. (Emphasis supplied.)

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The legislative intent is not at all times accurately reflected in the manner in which the resulting law is couched. Thus, applying a verba legis[37] or strictly literal interpretation of a statute may render it meaningless and lead to inconvenience, an absurd situation or injustice.[38] To obviate this aberration, and bearing in mind the principle that the intent or the spirit of the law is the law itself,[39] resort should be to the rule that the spirit of the law controls its letter.[40]

It is in this respect that the history of the passage of RA 9009 and the logical inferences derivable therefrom assume relevancy in discovering legislative intent.[41]

The rationale behind the enactment of RA 9009 to amend Sec. 450 of the LGC of 1991 can reasonably be deduced from Senator Pimentel’s sponsorship speech on S. Bill No. 2157. Of particular significance is his statement regarding the basis for the proposed increase from PhP 20 million to PhP 100 million in the income requirement for municipalities wanting to be converted into cities, 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 [LGC]. However, it is a fact that there is a mad rush of municipalities wanting to be converted into cities. Whereas in 1991, when the [LGC] was approved, there were only 60 cities, today the number has increased to 85 cities, with 41 more municipalities applying for conversion x x x. 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 [LGC], is fixed at P20 million, be raised toP100 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.

Congress to be sure knew, when RA 9009 was being deliberated upon, of the pendency of several bills on cityhood, wherein the applying municipalities were qualified under the then obtaining PhP 20 million-income threshold. These included respondent LGUs. Thus, equally noteworthy is the ensuing excerpts from the floor exchange between then Senate President Franklin Drilon and Senator Pimentel, the latter stopping short of saying that the income

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threshold of PhP 100 million under S. Bill No. 2157 would not apply to municipalities that have pending cityhood bills, thus:

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

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 x x x [if] 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 x x x that it will apply to those bills which are already approved by the House under the old version of the [LGC] 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.[42] (Emphasis and underscoring supplied.)

What the foregoing Pimental-Drilon exchange eloquently indicates are the following complementary legislative intentions: (1) the then pending cityhood bills would be outside the pale of the minimum income requirement of PhP 100 million that S. Bill No. 2159 proposes; and (2) RA 9009 would not have any retroactive effect insofar as the cityhood bills are concerned.

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Given the foregoing perspective, it is not amiss to state that the basis for the inclusion of the exemption clause of the cityhood laws is the clear-cutintent of Congress of not according retroactive effect to RA 9009. Not only do the congressional records bear the legislative intent of exempting the cityhood laws from the income requirement of PhP 100 million. Congress has now made its intention to exempt express in the challenged cityhood laws.

Legislative intent is part and parcel of the law, the controlling factor in interpreting a statute. In construing a statute, the proper course is to start out and follow the true intent of the Legislature and to adopt the sense that best harmonizes with the context and promotes in the fullest manner the policy and objects of the legislature. [43] In fact, any interpretation that runs counter to the legislative intent is unacceptable and invalid.[44] Torres v. Limjap could not have been more precise:

The intent of a Statute is the Law. – If a statute is valid, it is to have effect according to the purpose and intent of the lawmaker. The intent is x x x the essence of the law and the primary rule of construction is to ascertain and give effect to that intent. The intention of the legislature in enacting a law is the law itself, and must be enforced when ascertained, although it may not be consistent with the strict letter of the statute. Courts will not follow the letter of a statute when it leads away from the true intent and purpose of the legislature and to conclusions inconsistent with the general purpose of the act. Intent is the spirit which gives life to a legislative enactment. In construing statutes the proper course is to start out and follow the true intent of the legislature x x x.[45] (Emphasis supplied.)

As emphasized at the outset, behind every law lies the presumption of constitutionality.[46] Consequently, to him who would assert the unconstitutionality of a statute belongs the burden of proving otherwise. Laws will only be declared invalid if a conflict with the Constitution is beyond reasonable doubt.[47] Unfortunately for petitioners and petitioners-in-intervention, they failed to discharge their heavy burden.

It is contended that the deliberations on the cityhood bills and the covering joint resolution were undertaken in the 11th and/or the 12th Congress. Accordingly, so the argument goes, such deliberations, more particularly those on the unapproved resolution exempting from RA 9009 certain municipalities, are without significance and would not qualify as extrinsic aids in construing the cityhood laws that were passed during the 13th Congress, Congress not being a continuing body.

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The argument is specious and glosses over the reality that the cityhood bills––which were already being deliberated upon even perhaps before the conception of RA 9009––were again being considered during the 13th Congress after being tossed around in the two previous Congresses. And specific reference to the cityhood bills was also made during the deliberations on RA 9009. At the end of the day, it is really immaterial if Congress is not a continuing legislative body. What is important is that the debates, deliberations, and proceedings of Congress and the steps taken in the enactment of the law, in this case the cityhood laws in relation to RA 9009 or vice versa, were part of its legislative history and may be consulted, if appropriate, as aids in the interpretation of the law.[48] And of course the earlier cited Drilon-Pimentel exchange on whether or not the 16 municipalities in question would be covered by RA 9009 is another vital link to the historical chain of the cityhood bills. This and other proceedings on the bills are spread in the Congressional journals, which cannot be conveniently reduced to pure rhetoric without meaning whatsoever, on the simplistic and non-sequitur pretext that Congress is not a continuing body and that unfinished business in either chamber is deemed terminated at the end of the term of Congress.

This brings us to the challenge to the constitutionality of cityhood laws on equal protection grounds.

To the petitioners, the cityhood laws, by granting special treatment to respondent municipalities/LGUs by way of exemption from the standard PhP 100 million minimum income requirement, violate Sec.1, Art. III of the Constitution, which in part provides that no person shall “be denied the equal protection of the laws.”

Petitioners’ challenge is not well taken. At its most basic, the equal protection clause proscribes undue favor as well as hostile discrimination. Hence, a law need not operate with equal force on all persons or things to be conformable with Sec. 1, Art. III of the Constitution.

The equal protection guarantee is embraced in the broader and elastic concept of due process, every unfair discrimination being an offense against the requirements of justice and fair play. It has nonetheless come as a separate clause in Sec. 1, Art. III of the Constitution to provide for a more specific protection against any undue discrimination or antagonism from government. Arbitrariness in general may be assailed on the basis of the due process clause. But if a particular challenged act partakes of an unwarranted partiality or prejudice, the sharper

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weapon to cut it down is the equal protection clause. [49] This constitutional protection extends to all persons, natural or artificial, within the territorial jurisdiction. Artificial persons, as the respondent LGUs herein, are, however, entitled to protection only insofar as their property is concerned.[50]

In the proceedings at bar, petitioner LCP and the intervenors cannot plausibly invoke the equal protection clause, precisely because no deprivation of property results by virtue of the enactment of the cityhood laws. The LCP’s claim that the IRA of its member-cities will be substantially reduced on account of the conversion into cities of the respondent LGUs would not suffice to bring it within the ambit of the constitutional guarantee. Indeed, it is presumptuous on the part of the LCP member-cities to already stake a claim on the IRA, as if it were their property, as the IRA is yet to be allocated. For the same reason, the municipalities that are not covered by the uniform exemption clause in the cityhood laws cannot validly invoke constitutional protection. For, at this point, the conversion of a municipality into a city will only affect its status as a political unit, but not its property as such.

As a matter of settled legal principle, the fundamental right of equal protection does not require absolute equality. It is enough that all persons or things similarly situated should be treated alike, both as to rights or privileges conferred and responsibilities or obligations imposed. The equal protection clause does not preclude the state from recognizing and acting upon factual differences between individuals and classes. It recognizes that inherent in the right to legislate is the right to classify,[51] necessarily implying that the equality guaranteed is not violated by a legislation based on reasonable classification. Classification, to be reasonable, must (1) rest on substantial distinctions; (2) be germane to the purpose of the law; (3) not be limited to existing conditions only; and (4) apply equally to all members of the same class.[52] The Court finds that all these requisites have been met by the laws challenged as arbitrary and discriminatory under the equal protection clause.

As things stand, the favorable treatment accorded the sixteen (16) municipalities by the cityhood laws rests on substantial distinction. Indeed, respondent LGUs, which are subjected only to the erstwhile PhP 20 million income criterion instead of the stringent income requirement prescribed in RA 9009, are substantially different from other municipalities desirous to be cities. Looking back, we note that respondent LGUs had pending cityhood bills before the passage of RA 9009. There lies part of the tipping difference. And years before the enactment of the amendatory RA 9009, respondents LGUs had already met the income criterion exacted for

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cityhood under the LGC of 1991. Due to extraneous circumstances, however, the bills for their conversion remained unacted upon by Congress. As aptly observed by then Senator, now Manila Mayor, Alfredo Lim in his speech sponsoring H. Joint Resolution No. 1, or the cityhood bills, respondent LGUs saw themselves confronted with the “changing of the rules in the middle of the game.” Some excerpts of Senator Lim’s sponsorship speech:

x x x [D]uring the Eleventh Congress, fifty-seven (57) municipalities applied for city status, confident that each has met the requisites for conversion under Section 450 of the [LGC], particularly the income threshold of P20 million. Of the 57 that filed, thirty-two (32) were enacted into law; x x x while the rest – twenty-four (24) in all – failed to pass through Congress. Shortly before the long recess of Congress in February 2001, to give way to the May elections x x x, Senate Bill No. 2157, which eventually became [RA] 9009, was passed into law, effectively raising the income requirement for creation of cities to a whooping P100 million x x x. Much as the proponents of the 24 cityhood bills then pending struggled to beat the effectivity of the law on June 30, 2001, events that then unfolded were swift and overwhelming that Congress just did not have the time to act on the measures.

Some of these intervening events were x x x the impeachment  of  President  Estrada x x x and the May 2001 elections.

The imposition of a much higher income requirement for the creation of a city x x x was unfair; like any sport – changing the rules in the middle of the game.

Undaunted, they came back during the [12th] Congress x x x. They filed House Joint Resolution No. 29 seeking exemption from the higher income requirement of RA 9009. For the second time, [however], time ran out from them.

For many of the municipalities whose Cityhood Bills are now under consideration, this year, at the closing days of the [13th] Congress, marks their ninth year appealing for fairness and justice. x x x

I, for one, share their view that fairness dictates that they should be given a legal remedy by which they could be allowed to prove that they have all the necessary qualifications for city status using the criteria set forth under the [LGC] prior to its amendment by RA 9009. Hence, when House Joint Resolution No. 1 reached the Senate x x x I immediately set the public hearing x x x. On July 25, 2006, I filed Committee Report No. 84 x x x. On September 6, I delivered the sponsorship x x x.

Page 144: Municipal Corporations

LCP vs. COMELECx x x By November 14, the measure had reverted to the period of individual amendments. This was

when the then acting majority leader, x x x informed the Body that Senator Pimentel and the proponents of House Joint Resolution No. 1 have agreed to the proposal of the Minority Leader for the House to first approve the individual Cityhood Bills of the qualified municipalities, along with the provision exempting each of them from the higher income requirement of RA 9009. x x x This led to the certification issued by the proponents short-listing fourteen (14) municipalities deemed to be qualified for city-status.

Acting on the suggestion of Senator Pimentel, the proponents lost no time in working for the approval by the House of Representatives of their individual Cityhood Bills, each containing a provision of exemption from the higher income requirement of RA 9009. On the last session day of last year, December 21, the House transmitted to the Senate the Cityhood Bills of twelve out of the 14 pre-qualified municipalities. Your Committee immediately conducted the public hearing x x x.

The whole process I enumerated [span] three Congresses x x x.

In essence, the Cityhood Bills now under consideration will have the same effect as that of House Joint Resolution No. 1 because each of the 12 bills seeks exemption from the higher income requirement of RA 9009. The proponents are invoking the exemption on the basis of justice and fairness.

Each of the 12 municipalities has all the requisites for conversion into a component city based on the old requirements  set  forth under Section 450 of  the [LGC],  prior  to  its  amendment by RA 9009, namely: x x x[53] (Emphasis supplied.)

In hindsight, the peculiar conditions, as depicted in Senator Lim’s speech, which respondent

LGUs found themselves in were unsettling. They were qualified cityhood applicants before the

enactment of RA 009. Because of events they had absolutely nothing to do with, a spoiler in the

form of RA 9009 supervened. Now, then, to impose on them the much higher income requirement

after what they have gone through would appear to be indeed “unfair,” to borrow from Senator

Lim.  Thus, the imperatives of fairness dictate that they should be given a legal remedy by which

they would be allowed to prove that they have all the necessary qualifications for city status, using

the criteria set forth under the LGC of 1991 prior to its amendment by RA 9009.  Truly, the

peculiar conditions of respondent LGUs, which are actual and real, provide sufficient grounds for

legislative classification.

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To be sure, courts, regardless of doubts they might be entertaining, cannot question the wisdom of the congressional classification, if reasonable, or the motivation underpinning the classification.[54] By the same token, they do not sit to determine the propriety or efficacy of the remedies Congress has specifically chosen to extend. That is its prerogative. The power of the Legislature to make distinctions and classifications among persons is, to reiterate, neither curtailed nor denied by the equal protection clause. A law can be violative of the constitutional limitation only when the classification is without reasonable basis.

The classification is also germane to the purpose of the law. The exemption of respondent LGUs/municipalities from the PhP 100 million income requirement was meant to reduce the inequality occasioned by the passage of the amendatory RA 9009. From another perspective, the exemption was unquestionably designed to insure that fairness and justice would be accorded respondent LGUs. Let it be noted that what were then the cityhood bills covering respondent LGUs were part and parcel of the original 57 conversion bills filed in the 11 th Congress, 33 of those became laws before the adjournment of that Congress. The then bills of the challenged cityhood laws were not acted upon due, inter alia, to the impeachment of then President Estrada, the relatedjueteng scandal investigations conducted before, and the EDSA events that followed the aborted impeachment.

While the equal protection guarantee frowns upon the creation of a privileged class without justification, inherent in the equality clause is the exhortation for the Legislature to pass laws promoting equality or reducing existing inequalities. The enactment of the cityhood laws was in a real sense an attempt on the part of Congress to address the inequity dealt the respondent LGUs. These laws positively promoted the equality and eliminated the inequality, doubtless unintended, between respondent municipalities and the thirty-three (33) other municipalities whose cityhood bills were enacted during the 11th Congress.Respondent municipalities and the 33 other municipalities, which had already been elevated to city status, were all found to be qualified under the old Sec. 450 of the LGC of 1991 during the 11th Congress. As such, both respondent LGUs and the 33 other former municipalities are under like circumstances and conditions. There is, thus, no rhyme or reason why an exemption from the PhP 100 million requirement cannot be given to respondent LGUs. Indeed, to deny respondent LGUs/municipalities the same rights and privileges accorded to the 33 other municipalities when, at the outset they were similarly situated, is tantamount to denying the former the protective mantle of the equal protection clause. In effect, petitioners and petitioners-in-intervention are creating an absurd situation in which an alleged violation of the

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equal protection clause of the Constitution is remedied by another violation of the same clause. The irony is not lost to the Court.

Then too the non-retroactive effect of RA 9009 is not limited in application only to conditions existing at the time of its enactment. It is intended to apply for all time, as long as the contemplated conditions obtain. To be more precise, the legislative intent underlying the enactment of RA 9009 to exclude would-be-cities from the PhP 100 million criterion would hold sway, as long as the corresponding cityhood bill has been filed before the effectivity of RA 9009 and the concerned municipality qualifies for conversion into a city under the original version of Sec. 450 of the LGC of 1991.

Viewed in its proper light, the common exemption clause in the cityhood laws is an application of the non-retroactive effect of RA 9009 on the cityhood bills.  It is not a declaration of certain rights, but a mere declaration of prior qualification and/or compliance with the non-retroactive effect of RA 9009.

Lastly and in connection with the third requisite, the uniform exemption clause would apply to municipalities that had pending cityhood bills before the passage of RA 9009 and were compliant with then Sec. 450 of the LGC of 1991, which prescribed an income requirement of PhP 20 million. It is hard to imagine, however, if there are still municipalities out there belonging in context to the same class as the sixteen (16) respondent LGUs. Municipalities that cannot claim to belong to the same class as the 16 cannot seek refuge in the cityhood laws. The former have to comply with the PhP 100 million income requirement imposed by RA 9009.

A final consideration. The existence of the cities consequent to the approval of the creating,

but challenged, cityhood laws in the plebiscites held in the affected LGUs is now an operative fact.

New cities appear to have been organized and are functioning accordingly, with new sets of

officials and employees. Other resulting events need not be enumerated. The operative fact

doctrine provides another reason for upholding the constitutionality of the cityhood laws in

question.

 

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In view of the foregoing discussion, the Court ought to abandon as it hereby abandons and

sets aside the Decision of November 18, 2008 subject of reconsideration. And by way of summing

up the main arguments in support of this disposition, the Court hereby declares the following:

 

(1) Congress did not intend the increased income requirement in RA 9009 to apply to the cityhood bills which became the cityhood laws in question. In other words, Congress intended the subject cityhood laws to be exempted from the income requirement of PhP 100 million prescribed by RA 9009;

(2) The cityhood laws merely carry out the intent of RA 9009, now Sec. 450 of the LGC of 1991, to exempt respondent LGUs from the PhP 100 million income requirement;

(3) The deliberations of the 11th or 12th Congress on unapproved bills or resolutions are extrinsic aids in interpreting a law passed in the 13th Congress. It is really immaterial if Congress is not a continuing body. The hearings and deliberations during the 11th and 12th Congress may still be used as extrinsic reference inasmuch as the same cityhood bills which were filed before the passage of RA 9009 were being considered during the 13th Congress. Courts may fall back on the history of a law, as here, as extrinsic aid of statutory construction if the literal application of the law results in absurdity or injustice.

(4) The exemption accorded the 16 municipalities is based on the fact that each had pending cityhood bills long before the enactment of RA 9009 that substantially distinguish them from other municipalities aiming for cityhood. On top of this, each of the 16 also met the PhP 20 million income level exacted under the original Sec. 450 of the 1991 LGC.

And to stress the obvious, the cityhood laws are presumed constitutional. As we see it, petitioners have not overturned the presumptive constitutionality of the laws in question.

           

 

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WHEREFORE, respondent LGUs’ Motion for Reconsideration dated June 2, 2009, their

“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,” dated May 14,

2009, and their second Motion for Reconsideration of the Decision dated November 18, 2008

are GRANTED. The June 2, 2009, the March 31, 2009, and April 31, 2009 Resolutions

are REVERSED and SET ASIDE.  The entry of judgment made on May 21, 2009 must

accordingly be RECALLED.

 

The instant consolidated petitions and petitions-in-intervention are DISMISSED. The

cityhood laws, namely Republic Act Nos. 9389, 9390, 9391, 9392, 9393, 9394, 9398, 9404, 9405,

9407, 9408, 9409, 9434, 9435, 9436, and 9491 are declared VALID and CONSTITUTIONAL.

SO ORDERED.

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EN BANC

LEAGUE OF CITIES OF THE G.R. No. 176951

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;

Page 150: Municipal Corporations

LCP vs. COMELECMUNICIPALITY 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,

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LCP vs. COMELECPetitioners-In-Intervention.

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

LEAGUE OF CITIES OF THE G.R. No. 177499

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 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;

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LCP vs. COMELECMUNICIPALITY OF MATI,

PROVINCE OF DAVAO ORIENTAL;

and MUNICIPALITY OF GUIHULNGAN,

PROVINCE OF NEGROS ORIENTAL,

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,

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LCP vs. COMELECPetitioners-In-Intervention.

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LEAGUE OF CITIES OF THE G.R. No. 178056

PHILIPPINES (LCP) represented

by LCP National President Present:

JERRY P. TREÑAS, CITY OF

ILOILO represented by CORONA, C.J.,

MAYOR JERRY P. TREÑAS, CARPIO,

CITY OF CALBAYOG CARPIO MORALES,

represented by MAYOR VELASCO, JR.,

MEL SENEN S. SARMIENTO, NACHURA,

and JERRY P. TREÑAS in his LEONARDO-DE CASTRO,

personal capacity as taxpayer, BRION,

Petitioners, PERALTA,

BERSAMIN,

DEL CASTILLO,

- versus - ABAD,

VILLARAMA, JR.,

PEREZ,

MENDOZA, and

COMMISSION ON ELECTIONS; SERENO, JJ.

MUNICIPALITY OF CABADBARAN,

PROVINCE OF AGUSAN

DEL NORTE; MUNICIPALITY

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LCP vs. COMELECOF CARCAR, PROVINCE OF

CEBU; and MUNICIPALITY OF

EL SALVADOR, MISAMIS

ORIENTAL,

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 Promulgated:

CITY OF TAGUM,

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LCP vs. COMELECPetitioners-In-Intervention. August 24, 2010

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R E S O L U T I O N

CARPIO, J.:

For resolution are (1) the ad cautelam motion for reconsideration and (2) motion to annul the Decision of 21 December 2009 filed by petitioners League of Cities of the Philippines, et al. and (3) the ad cautelam motion for reconsideration filed by petitioners-in-intervention Batangas City, Santiago City, Legazpi City, Iriga City, Cadiz City, and Oroquieta City.

On 18 November 2008, the Supreme Court En Banc, by a majority vote, struck down the subject 16 Cityhood Laws for violating Section 10, Article X of the 1987 Constitution and the equal protection clause. On 31 March 2009, the Supreme Court En Banc, again by a majority vote, denied the respondents’ first motion for reconsideration. On 28 April 2009, the Supreme Court En Banc, by a split vote, denied the respondents’ second motion for reconsideration. Accordingly, the 18 November 2008 Decision became final and executory and was recorded, in due course, in the Book of Entries of Judgments on 21 May 2009.

However, after the finality of the 18 November 2008 Decision and without any exceptional and compelling reason, the Court En Banc unprecedentedly reversed the 18 November 2008 Decision by upholding the constitutionality of the Cityhood Laws in the Decision of 21 December 2009.

Upon reexamination, the Court finds the motions for reconsideration meritorious and accordingly reinstates the 18 November 2008 Decision declaring the 16 Cityhood Laws unconstitutional.

A. Violation of Section 10, Article X of the Constitution

Section 10, Article X of the 1987 Constitution provides:

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)

The Constitution is clear. The creation of local government units must follow the criteria established in the Local Government Code and not in any other law. There is only one Local Government Code.1 The Constitution requires Congress to stipulate in the Local Government Code all the criteria necessary for the creation of a city, including the conversion of a municipality into a city. Congress cannot write such criteria in any other law, like the Cityhood Laws.

The clear intent of the Constitution is to insure that the creation of cities and other political units must follow the same uniform, non-discriminatory criteria found solely in the Local Government Code.

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LCP vs. COMELECAny derogation or deviation from the criteria prescribed in the Local Government Code violates Section 10, Article X of the Constitution.

RA 9009 amended Section 450 of the Local Government Code to increase the income requirement from P20 million to P100 million for the creation of a city. This took effect on 30 June 2001. Hence, from that moment the Local Government Code required that any municipality desiring to become a city must satisfy the P100 million income requirement. Section 450 of the Local Government Code, as amended by RA 9009, does not contain any exemption from this income requirement.

In enacting RA 9009, Congress did not grant any exemption to respondent municipalities, even though their cityhood bills were pending in Congress when Congress passed RA 9009. The Cityhood Laws, all enacted after the effectivity of RA 9009, explicitly exempt respondent municipalities from the increased income requirement in Section 450 of the Local Government Code, as amended by RA 9009. Such exemption clearly violates Section 10, Article X of the Constitution and is thus patently unconstitutional. To be valid, such exemption must be written in the Local Government Code and not in any other law, including the Cityhood Laws.

RA 9009 is not a law different from the Local Government Code. Section 1 of RA 9009 pertinently provides: "Section 450 of Republic Act No. 7160, otherwise known as the Local Government Code of 1991, is hereby amended to read as follows: x x x." RA 9009 amended Section 450 of the Local Government Code. RA 9009, by amending Section 450 of the Local Government Code, embodies the new and prevailing Section 450 of the Local Government Code. Considering the Legislature’s primary intent to curtail "the mad rush of municipalities wanting to be converted into cities," RA 9009 increased the income requirement for the creation of cities. To repeat, RA 9009 is not a law different from the Local Government Code, as it expressly amended Section 450 of the Local Government Code.

The language of RA 9009 is plain, simple, and clear. Nothing is unintelligible or ambiguous; not a single word or phrase admits of two or more meanings. RA 9009 amended Section 450 of the Local Government Code of 1991 by increasing the income requirement for the creation of cities. There are no exemptions from this income requirement. Since the law is clear, plain and unambiguous that any municipality desiring to convert into a city must meet the increased income requirement, there is no reason to go beyond the letter of the law. Moreover, where the law does not make an exemption, the Court should not create one.2

B. Operative Fact Doctrine

Under the operative fact doctrine, the law is recognized as unconstitutional but the effects of the unconstitutional law, prior to its declaration of nullity, may be left undisturbed as a matter of equity and fair play. In fact, the invocation of the operative fact doctrine is an admission that the law is unconstitutional.

However, the minority’s novel theory, invoking the operative fact doctrine, is that the enactment of the Cityhood Laws and the functioning of the 16 municipalities as new cities with new sets of officials

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LCP vs. COMELECand employees operate to contitutionalize the unconstitutional Cityhood Laws. This novel theory misapplies the operative fact doctrine and sets a gravely dangerous precedent.

Under the minority’s novel theory, an unconstitutional law, if already implemented prior to its declaration of unconstitutionality by the Court, can no longer be revoked and its implementation must be continued despite being unconstitutional. This view will open the floodgates to the wanton enactment of unconstitutional laws and a mad rush for their immediate implementation before the Court can declare them unconstitutional. This view is an open invitation to serially violate the Constitution, and be quick about it, lest the violation be stopped by the Court.

The operative fact doctrine is a rule of equity. As such, it must be applied as an exception to the general rule that an unconstitutional law produces no effects. It can never be invoked to validate as constitutional an unconstitutional act. In Planters Products, Inc. v. Fertiphil Corporation,3 the Court stated:

The general rule is that an unconstitutional law is void. It produces no rights, imposes no duties and affords no protection. It has no legal effect. It is, in legal contemplation, inoperative as if it has not been passed. Being void, Fertiphil is not required to pay the levy. All levies paid should be refunded in accordance with the general civil code principle against unjust enrichment. The general rule is supported by Article 7 of the Civil Code, which provides:

ART. 7. Laws are repealed only by subsequent ones, and their violation or non-observance shall not be excused by disuse or custom or practice to the contrary.

When the courts declare a law to be inconsistent with the Constitution, the former shall be void and the latter shall govern.

The doctrine of operative fact, as an exception to the general rule, only applies as a matter of equity and fair play. It nullifies the effects of an unconstitutional law by recognizing that the existence of a statute prior to a determination of unconstitutionality is an operative fact and may have consequences which cannot always be ignored. The past cannot always be erased by a new judicial declaration.

The doctrine is applicable when a declaration of unconstitutionality will impose an undue burden on those who have relied on the invalid law. Thus, it was applied to a criminal case when a declaration of unconstitutionality would put the accused in double jeopardy or would put in limbo the acts done by a municipality in reliance upon a law creating it. (Emphasis supplied)

The operative fact doctrine never validates or constitutionalizes an unconstitutional law. Under the operative fact doctrine, the unconstitutional law remains unconstitutional, but the effects of the unconstitutional law, prior to its judicial declaration of nullity, may be left undisturbed as a matter of equity and fair play. In short, the operative fact doctrine affects or modifies only the effects of the unconstitutional law, not the unconstitutional law itself.

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LCP vs. COMELECThus, applying the operative fact doctrine to the present case, the Cityhood Laws remain unconstitutional because they violate Section 10, Article X of the Constitution. However, the effects of the implementation of the Cityhood Laws prior to the declaration of their nullity, such as the payment of salaries and supplies by the "new cities" or their issuance of licenses or execution of contracts, may be recognized as valid and effective. This does not mean that the Cityhood Laws are valid for they remain void. Only the effects of the implementation of these unconstitutional laws are left undisturbed as a matter of equity and fair play to innocent people who may have relied on the presumed validity of the Cityhood Laws prior to the Court’s declaration of their unconstitutionality.

C. Equal Protection Clause

As the Court held in the 18 November 2008 Decision, there is no substantial distinction between municipalities with pending cityhood bills in the 11th Congress and municipalities that did not have pending bills. The mere pendency of a cityhood bill in the 11th Congress is not a material difference to distinguish one municipality from another for the purpose of the income requirement. The pendency of a cityhood bill in the 11th Congress does not affect or determine the level of income of a municipality. Municipalities with pending cityhood bills in the 11th Congress might even have lower annual income than municipalities that did not have pending cityhood bills. In short, the classification criterion − mere pendency of a cityhood bill in the 11th Congress − is not rationally related to the purpose of the law which is to prevent fiscally non-viable municipalities from converting into cities.

Moreover, the fact of pendency of a cityhood bill in the 11th Congress limits the exemption to a specific condition existing at the time of passage of RA 9009. That specific condition will never happen again. This violates the requirement that a valid classification must not be limited to existing conditions only. In fact, the minority concedes that "the conditions (pendency of the cityhood bills) adverted to can no longer be repeated."

Further, the exemption provision in the Cityhood Laws gives the 16 municipalities a unique advantage based on an arbitrary date − the filing of their cityhood bills before the end of the 11th Congress – as against all other municipalities that want to convert into cities after the effectivity of RA 9009.

In addition, limiting the exemption only to the 16 municipalities violates the requirement that the classification must apply to all similarly situated. Municipalities with the same income as the 16 respondent municipalities cannot convert into cities, while the 16 respondent municipalities can. Clearly, as worded, the exemption provision found in the Cityhood Laws, even if it were written in Section 450 of the Local Government Code, would still be unconstitutional for violation of the equal protection clause.

D. Tie-Vote on a Motion for Reconsideration

Section 7, Rule 56 of the Rules of Court provides:

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

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LCP vs. COMELECsuch 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)

The En Banc Resolution of 26 January 1999 in A.M. No. 99-1-09-SC, reads:

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.4 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."

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. Since the Court was evenly divided, there could be no reversal of the 18 November 2008 Decision, for a tie-vote cannot result in any court order or directive.5 The judgment stands in full force.6 Undeniably, the 6-6 tie-vote did not overrule the prior majority en banc Decision of 18 November 2008, as well as 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 where there is no prior decision. Here, the tie-vote plainly signifies that there is no majority to overturn the prior 18 November 2008 Decision and 31 March 2009 Resolution, and thus the second motion for reconsideration must 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 the Resolution of 31 March 2009 where a majority of the Court en banc concurred in declaring the unconstitutionality of the sixteen Cityhood Laws. In short, the 18 November 2008 Decision and the 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.7 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.

The denial, by a split vote, of the second motion for reconsideration inevitably rendered the 18 November 2008 Decision final. In fact, in its Resolution of 28 April 2009, denying the second motion

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LCP vs. COMELECfor reconsideration, the Court en banc reiterated that no further pleadings shall be entertained and stated that entry of judgment be made in due course.

The dissenting opinion stated that "a deadlocked vote of six is not a majority and a non-majority does not constitute a rule with precedential value."8

Indeed, a tie-vote is a non-majority – a non-majority which cannot overrule a prior affirmative action, that is the 18 November 2008 Decision striking down the Cityhood Laws. In short, the 18 November 2008 Decision stands affirmed. And assuming a non-majority lacks any precedential value, the 18 November 2008 Decision, which was unreversed as a result of the tie-vote on the respondents’ second motion for reconsideration, nevertheless remains binding on the parties.9

Conclusion

Section 10, Article X of the Constitution expressly provides that "no x x x city shall be created x x x except in accordance with the criteria established in the local government code."This provision can only be interpreted in one way, that is, all the criteria for the creation of cities must be embodied exclusively in the Local Government Code. In this case, the Cityhood Laws, which are unmistakably

laws other than the Local Government Code, provided an exemption from the increased income requirement for the creation of cities under Section 450 of the Local Government Code, as amended by RA 9009. Clearly, the Cityhood Laws contravene the letter and intent of Section 10, Article X of

the Constitution.

Adhering to the explicit prohibition in Section 10, Article X of the Constitution does not cripple Congress’ power to make laws. In fact, Congress is not prohibited from amending the Local Government Code itself, as what Congress did by enacting RA 9009. Indisputably, the act of amending laws comprises an integral part of the Legislature’s law-making power. The unconstitutionality of the Cityhood Laws lies in the fact that Congress provided an exemption contrary to the express language of the Constitution that "[n]o x x x city x x x shall be created except in accordance with the criteria established in the local government code." In other words, Congress exceeded and abused its law-making power, rendering the challenged Cityhood Laws void for being violative of the Constitution.

WHEREFORE, we GRANT the motions for reconsideration of the 21 December 2009 Decision and REINSTATE the 18 November 2008 Decision declaring UNCONSTITUTIONAL the Cityhood Laws, namely: Republic Act Nos. 9389, 9390, 9391, 9392, 9393, 9394, 9398, 9404, 9405, 9407, 9408, 9409, 9434, 9435, 9436, and 9491.

We NOTE petitioners’ motion to annul the Decision of 21 December 2009.

SO ORDERED.

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LCP vs. COMELEC

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 176951             November 18, 2008

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, vs.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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G.R. No. 177499             November 18, 2008

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, vs.COMMISSION ON ELECTIONS; 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; and MUNICIPALITY OF GUIHULNGAN, PROVINCE OF NEGROS ORIENTAL, 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

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LCP vs. COMELECOF 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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G.R. No. 178056             November 18, 2008

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 vs.COMMISSION ON ELECTIONS; MUNICIPALITY OF CABADBARAN, PROVINCE OF AGUSAN DEL NORTE; MUNICIPALITY OF CARCAR, PROVINCE OF CEBU; and MUNICIPALITY OF EL SALVADOR, MISAMIS ORIENTAL, 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.

D E C I S I O N

CARPIO, J.:

The Case

These are consolidated petitions for prohibition1 with prayer for the issuance of a writ of preliminary injunction or temporary restraining order filed by the League of Cities of the Philippines, City of Iloilo, City of Calbayog, and Jerry P. Treñas2 assailing the constitutionality of the subject Cityhood Laws and enjoining the Commission on Elections (COMELEC) and respondent municipalities from conducting plebiscites pursuant to the Cityhood Laws.

The Facts

During the 11th Congress,3 Congress enacted into law 33 bills converting 33 municipalities into cities. However, Congress did not act on bills converting 24 other municipalities into cities.

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LCP vs. COMELECDuring the 12th Congress,4 Congress enacted into law Republic Act No. 9009 (RA 9009),5 which took effect on 30 June 2001. RA 9009 amended Section 450 of the Local Government Code by increasing the annual income requirement for conversion of a municipality into a city from P20 million to P100 million. The rationale for the amendment was to restrain, in the words of Senator Aquilino Pimentel, "the mad rush" of municipalities to convert into cities solely to secure a larger share in the Internal Revenue Allotment despite the fact that they are incapable of fiscal independence.6

After the effectivity of RA 9009, the House of Representatives of the 12th Congress7 adopted Joint Resolution No. 29,8 which sought to exempt from the P100 million income requirement in RA 9009 the 24 municipalities whose cityhood bills were not approved in the 11th Congress. However, the 12th Congress ended without the Senate approving Joint Resolution No. 29.

During the 13th Congress,9 the House of Representatives re-adopted Joint Resolution No. 29 as Joint Resolution No. 1 and forwarded it to the Senate for approval. However, the Senate again failed to approve the Joint Resolution. Following the advice of Senator Aquilino Pimentel, 16 municipalities filed, through their respective sponsors, individual cityhood bills. The 16 cityhood bills contained a common provision exempting all the 16 municipalities from the P100 million income requirement in RA 9009.

On 22 December 2006, the House of Representatives approved the cityhood bills. The Senate also approved the cityhood bills in February 2007, except that of Naga, Cebu which was passed on 7 June 2007. The cityhood bills lapsed into law (Cityhood Laws10) on various dates from March to July 2007 without the President's signature.11

The Cityhood Laws direct the COMELEC to hold plebiscites to determine whether the voters in each respondent municipality approve of the conversion of their municipality into a city.

Petitioners filed the present petitions to declare the Cityhood Laws unconstitutional for violation of Section 10, Article X of the Constitution, as well as for violation of the equal protection clause.12Petitioners also lament that the wholesale conversion of municipalities into cities will reduce the share of existing cities in the Internal Revenue Allotment because more cities will share the same amount of internal revenue set aside for all cities under Section 285 of the Local Government Code.13

The Issues

The petitions raise the following fundamental issues:

1. Whether the Cityhood Laws violate Section 10, Article X of the Constitution; and

2. Whether the Cityhood Laws violate the equal protection clause.

The Ruling of the Court

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LCP vs. COMELECWe grant the petitions.

The Cityhood Laws violate Sections 6 and 10, Article X of the Constitution, and are thus unconstitutional.

First, applying the P100 million income requirement in RA 9009 to the present case is a prospective, not a retroactive application, because RA 9009 took effect in 2001 while the cityhood bills became law more than five years later.

Second, the Constitution requires that Congress shall prescribe all the criteria for the creation of a city in the Local Government Code and not in any other law, including the Cityhood Laws.

Third, the Cityhood Laws violate Section 6, Article X of the Constitution because they prevent a fair and just distribution of the national taxes to local government units.

Fourth, the criteria prescribed in Section 450 of the Local Government Code, as amended by RA 9009, for converting a municipality into a city are clear, plain and unambiguous, needing no resort to any statutory construction.

Fifth, the intent of members of the 11th Congress to exempt certain municipalities from the coverage of RA 9009 remained an intent and was never written into Section 450 of the Local Government Code.

Sixth, the deliberations of the 11th or 12th Congress on unapproved bills or resolutions are not extrinsic aids in interpreting a law passed in the 13th Congress.

Seventh, even if the exemption in the Cityhood Laws were written in Section 450 of the Local Government Code, the exemption would still be unconstitutional for violation of the equal protection clause.

Preliminary Matters

Prohibition is the proper action for testing the constitutionality of laws administered by the COMELEC,14like the Cityhood Laws, which direct the COMELEC to hold plebiscites in implementation of the Cityhood Laws. Petitioner League of Cities of the Philippines has legal standing because Section 499 of the Local Government Code tasks the League with the "primary purpose of ventilating, articulating and crystallizing issues affecting city government administration and securing, through proper and legal means, solutions thereto."15 Petitioners-in-intervention,16 which are existing cities, have legal standing because their Internal Revenue Allotment will be reduced if the Cityhood Laws are declared constitutional. Mayor Jerry P. Treñas has legal standing because as Mayor of Iloilo City and as a taxpayer he has sufficient interest to prevent the unlawful expenditure of public funds, like the release of more Internal Revenue Allotment to political units than what the law allows.

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LCP vs. COMELECApplying RA 9009 is a Prospective Application of the Law

RA 9009 became effective on 30 June 2001 during the 11th Congress. This law specifically amended Section 450 of the Local Government Code, which now provides:

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:

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

(ii) 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. (Emphasis supplied)

Thus, RA 9009 increased the income requirement for conversion of a municipality into a city from P20 million to P100 million. Section 450 of the Local Government Code, as amended by RA 9009, does not provide any exemption from the increased income requirement.

Prior to the enactment of RA 9009, a total of 57 municipalities had cityhood bills pending in Congress. Thirty-three cityhood bills became law before the enactment of RA 9009. Congress did not act on 24 cityhood bills during the 11th Congress.

During the 12th Congress, the House of Representatives adopted Joint Resolution No. 29, exempting from the income requirement of P100 million in RA 9009 the 24 municipalities whose cityhood bills were not acted upon during the 11th Congress. This Resolution reached the Senate. However, the 12thCongress adjourned without the Senate approving Joint Resolution No. 29.

During the 13th Congress, 16 of the 24 municipalities mentioned in the unapproved Joint Resolution No. 29 filed between November and December of 2006, through their respective sponsors in Congress, individual cityhood bills containing a common provision, as follows:

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LCP vs. COMELECExemption from Republic Act No. 9009. - The City of x x x shall be exempted from the income requirement prescribed under Republic Act No. 9009.

This common provision exempted each of the 16 municipalities from the income requirement ofP100 million prescribed in Section 450 of the Local Government Code, as amended by RA 9009. These cityhood bills lapsed into law on various dates from March to July 2007 after President Gloria Macapagal-Arroyo failed to sign them.

Indisputably, Congress passed the Cityhood Laws long after the effectivity of RA 9009. RA 9009 became effective on 30 June 2001 or during the 11th Congress. The 13th Congress passed in December 2006 the cityhood bills which became law only in 2007. Thus, respondent municipalities cannot invoke the principle of non-retroactivity of laws.17 This basic rule has no application because RA 9009, an earlier law to the Cityhood Laws, is not being applied retroactively but prospectively.

Congress Must Prescribe in the Local Government Code All Criteria

Section 10, Article X of the 1987 Constitution provides:

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)

The Constitution is clear. The creation of local government units must follow the criteria established in the Local Government Code and not in any other law. There is only one Local Government Code.18The Constitution requires Congress to stipulate in the Local Government Code all the criteria necessary for the creation of a city, including the conversion of a municipality into a city. Congress cannot write such criteria in any other law, like the Cityhood Laws.

The criteria prescribed in the Local Government Code govern exclusively the creation of a city. No other law, not even the charter of the city, can govern such creation. The clear intent of the Constitution is to insure that the creation of cities and other political units must follow the same uniform, non-discriminatory criteria found solely in the Local Government Code. Any derogation or deviation from the criteria prescribed in the Local Government Code violates Section 10, Article X of the Constitution.

RA 9009 amended Section 450 of the Local Government Code to increase the income requirement fromP20 million to P100 million for the creation of a city. This took effect on 30 June 2001. Hence, from that moment the Local Government Code required that any municipality desiring to become a city must satisfy the P100 million income requirement. Section 450 of the Local Government Code, as amended by RA 9009, does not contain any exemption from this income requirement.

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LCP vs. COMELECIn enacting RA 9009, Congress did not grant any exemption to respondent municipalities, even though their cityhood bills were pending in Congress when Congress passed RA 9009. The Cityhood Laws, all enacted after the effectivity of RA 9009, explicitly exempt respondent municipalities from the increased income requirement in Section 450 of the Local Government Code, as amended by RA 9009. Such exemption clearly violates Section 10, Article X of the Constitution and is thus patently unconstitutional. To be valid, such exemption must be written in the Local Government Code and not in any other law, including the Cityhood Laws.

Cityhood Laws Violate Section 6, Article X of the Constitution

Uniform and non-discriminatory criteria as prescribed in the Local Government Code are essential to implement a fair and equitable distribution of national taxes to all local government units. Section 6, Article X of the Constitution provides:

Local government units shall have a just share, as determined by law, in the national taxes which shall be automatically released to them. (Emphasis supplied)

If the criteria in creating local government units are not uniform and discriminatory, there can be no fair and just distribution of the national taxes to local government units.

A city with an annual income of only P20 million, all other criteria being equal, should not receive the same share in national taxes as a city with an annual income of P100 million or more. The criteria of land area, population and income, as prescribed in Section 450 of the Local Government Code, must be strictly followed because such criteria, prescribed by law, are material in determining the "just share" of local government units in national taxes. Since the Cityhood Laws do not follow the income criterion in Section 450 of the Local Government Code, they prevent the fair and just distribution of the Internal Revenue Allotment in violation of Section 6, Article X of the Constitution.

Section 450 of the Local Government Code is Clear, Plain and Unambiguous

There can be no resort to extrinsic aids – like deliberations of Congress – if the language of the law is plain, clear and unambiguous. Courts determine the intent of the law from the literal language of the law, within the law's four corners.19 If the language of the law is plain, clear and unambiguous, courts simply apply the law according to its express terms. If a literal application of the law results in absurdity, impossibility or injustice, then courts may resort to extrinsic aids of statutory construction like the legislative history of the law.20

Congress, in enacting RA 9009 to amend Section 450 of the Local Government Code, did not provide any exemption from the increased income requirement, not even to respondent municipalities whose cityhood bills were then pending when Congress passed RA 9009. Section 450 of the Local Government Code, as amended by RA 9009, contains no exemption whatsoever. Since the law is clear, plain and unambiguous that any municipality

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LCP vs. COMELECdesiring to convert into a city must meet the increased income requirement, there is no reason to go beyond the letter of the law in applying Section 450 of the Local Government Code, as amended by RA 9009.

The 11th Congress' Intent was not Written into the Local Government Code

True, members of Congress discussed exempting respondent municipalities from RA 9009, as shown by the various deliberations on the matter during the 11th Congress. However, Congress did not write this intended exemption into law. Congress could have easily included such exemption in RA 9009 but Congress did not. This is fatal to the cause of respondent municipalities because such exemption must appear in RA 9009 as an amendment to Section 450 of the Local Government Code. The Constitution requires that the criteria for the conversion of a municipality into a city, including any exemption from such criteria, must all be written in the Local Government Code. Congress cannot prescribe such criteria or exemption from such criteria in any other law. In short, Congress cannot create a city through a law that does not comply with the criteria or exemption found in the Local Government Code.

Section 10 of Article X is similar to Section 16, Article XII of the Constitution prohibiting Congress from creating private corporations except by a general law. Section 16 of Article XII provides:

The Congress shall not, except by general law, provide for the formation, organization, or regulation of private corporations. Government-owned or controlled corporations may be created or established by special charters in the interest of the common good and subject to the test of economic viability. (Emphasis supplied)

Thus, Congress must prescribe all the criteria for the "formation, organization, or regulation" of private corporations in a general law applicable to all without discrimination.21 Congress cannot create a private corporation through a special law or charter.

Deliberations of the 11th Congress on Unapproved Bills Inapplicable

Congress is not a continuing body.22 The unapproved cityhood bills filed during the 11th Congress became mere scraps of paper upon the adjournment of the 11th Congress. All the hearings and deliberations conducted during the 11th Congress on unapproved bills also became worthless upon the adjournment of the 11th Congress. These hearings and deliberations cannot be used to interpret bills enacted into law in the 13th or subsequent Congresses.

The members and officers of each Congress are different. All unapproved bills filed in one Congress become functus officio upon adjournment of that Congress and must be re-filed anew in order to be taken up in the next Congress. When their respective authors re-filed the

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LCP vs. COMELECcityhood bills in 2006 during the 13th Congress, the bills had to start from square one again, going through the legislative mill just like bills taken up for the first time, from the filing to the approval. Section 123, Rule XLIV of the Rules of the Senate, on Unfinished Business, provides:

Sec. 123. x x x

All pending matters and proceedings shall terminate upon the expiration of one (1) Congress, but may be taken by the succeeding Congress as if presented for the first time. (Emphasis supplied)

Similarly, Section 78 of the Rules of the House of Representatives, on Unfinished Business, states:

Section 78. Calendar of Business. The Calendar of Business shall consist of the following:

a. Unfinished Business. This is business being considered by the House at the time of its last adjournment. Its consideration shall be resumed until it is disposed of. The Unfinished Business at the end of a session shall be resumed at the commencement of the next session as if no adjournment has taken place. At the end of the term of a Congress, all Unfinished Business are deemed terminated. (Emphasis supplied)

Thus, the deliberations during the 11th Congress on the unapproved cityhood bills, as well as the deliberations during the 12th and 13th Congresses on the unapproved resolution exempting from RA 9009 certain municipalities, have no legal significance. They do not qualify as extrinsic aids in construing laws passed by subsequent Congresses.

Applicability of Equal Protection Clause

If Section 450 of the Local Government Code, as amended by RA 9009, contained an exemption to theP100 million annual income requirement, the criteria for such exemption could be scrutinized for possible violation of the equal protection clause. Thus, the criteria for the exemption, if found in the Local Government Code, could be assailed on the ground of absence of a valid classification. However, Section 450 of the Local Government Code, as amended by RA 9009, does not contain any exemption. The exemption is contained in the Cityhood Laws, which are unconstitutional because such exemption must be prescribed in the Local Government Code as mandated in Section 10, Article X of the Constitution.

Even if the exemption provision in the Cityhood Laws were written in Section 450 of the Local Government Code, as amended by RA 9009, such exemption would still be unconstitutional for violation of the equal protection clause. The exemption provision merely states, "Exemption from Republic Act No. 9009 ─ The City of x x x shall be exempted from the income requirement prescribed under Republic Act No. 9009." This one

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LCP vs. COMELECsentence exemption provision contains no classification standards or guidelines differentiating the exempted municipalities from those that are not exempted.

Even if we take into account the deliberations in the 11th Congress that municipalities with pending cityhood bills should be exempt from the P100 million income requirement, there is still no valid classification to satisfy the equal protection clause. The exemption will be based solely on the fact that the 16 municipalities had cityhood bills pending in the 11th Congress when RA 9009 was enacted. This is not a valid classification between those entitled and those not entitled to exemption from the P100 million income requirement.

To be valid, the classification in the present case must be based on substantial distinctions, rationally related to a legitimate government objective which is the purpose of the law,23 not limited to existing conditions only, and applicable to all similarly situated. Thus, this Court has ruled:

The equal protection clause of the 1987 Constitution permits a valid classification under the following conditions:

1. The classification must rest on substantial distinctions;

2. The classification must be germane to the purpose of the law;

3. The classification must not be limited to existing conditions only; and

4. The classification must apply equally to all members of the same class.24

There is no substantial distinction between municipalities with pending cityhood bills in the 11thCongress and municipalities that did not have pending bills. The mere pendency of a cityhood bill in the 11th Congress is not a material difference to distinguish one municipality from another for the purpose of the income requirement. The pendency of a cityhood bill in the 11th Congress does not affect or determine the level of income of a municipality. Municipalities with pending cityhood bills in the 11thCongress might even have lower annual income than municipalities that did not have pending cityhood bills. In short, the classification criterion − mere pendency of a cityhood bill in the 11th Congress − is not rationally related to the purpose of the law which is to prevent fiscally non-viable municipalities from converting into cities.

Municipalities that did not have pending cityhood bills were not informed that a pending cityhood bill in the 11th Congress would be a condition for exemption from the increased P100 million income requirement. Had they been informed, many municipalities would have caused the filing of their own cityhood bills. These municipalities, even if they have bigger annual income than the 16 respondent municipalities, cannot now convert into cities if their income is less than P100 million.

The fact of pendency of a cityhood bill in the 11th Congress limits the exemption to a specific condition existing at the time of passage of RA 9009. That specific condition will never

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LCP vs. COMELEChappen again. This violates the requirement that a valid classification must not be limited to existing conditions only. This requirement is illustrated in Mayflower Farms, Inc. v. Ten Eyck,25 where the challenged law allowed milk dealers engaged in business prior to a fixed date to sell at a price lower than that allowed to newcomers in the same business. In Mayflower, the U.S. Supreme Court held:

We are referred to a host of decisions to the effect that a regulatory law may be prospective in operation and may except from its sweep those presently engaged in the calling or activity to which it is directed. Examples are statutes licensing physicians and dentists, which apply only to those entering the profession subsequent to the passage of the act and exempt those then in practice, or zoning laws which exempt existing buildings, or laws forbidding slaughterhouses within certain areas, but excepting existing establishments. The challenged provision is unlike such laws, since, on its face, it is not a regulation of a business or an activity in the interest of, or for the protection of, the public, but an attempt to give an economic advantage to those engaged in a given business at an arbitrary date as against all those who enter the industry after that date. The appellees do not intimate that the classification bears any relation to the public health or welfare generally; that the provision will discourage monopoly; or that it was aimed at any abuse, cognizable by law, in the milk business. In the absence of any such showing, we have no right to conjure up possible situations which might justify the discrimination. The classification is arbitrary and unreasonable and denies the appellant the equal protection of the law. (Emphasis supplied)

In the same vein, the exemption provision in the Cityhood Laws gives the 16 municipalities a unique advantage based on an arbitrary date − the filing of their cityhood bills before the end of the 11thCongress - as against all other municipalities that want to convert into cities after the effectivity of RA 9009.

Furthermore, limiting the exemption only to the 16 municipalities violates the requirement that the classification must apply to all similarly situated. Municipalities with the same income as the 16 respondent municipalities cannot convert into cities, while the 16 respondent municipalities can. Clearly, as worded the exemption provision found in the Cityhood Laws, even if it were written in Section 450 of the Local Government Code, would still be unconstitutional for violation of the equal protection clause.

WHEREFORE, we GRANT the petitions and declare UNCONSTITUTIONAL the Cityhood Laws, namely: Republic Act Nos. 9389, 9390, 9391, 9392, 9393, 9394, 9398, 9404, 9405, 9407, 9408, 9409, 9434, 9435, 9436, and 9491.

SO ORDERED.

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LCP vs. COMELEC

Republic of the PhilippinesSUPREME COURTBaguio City

EN BANC

G.R. No. 176951               April 12, 2011

LEAGUE OF CITIES OF THE PHILIPPINES (LCP), represented by LCP National President Jerry P. Treñas; City of Calbayog, represented by Mayor Mel Senen S. Sarmiento; and Jerry P. Treñas, in his personal capacity as Taxpayer, Petitioners, vs.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.

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

G.R. No. 177499

LEAGUE OF CITIES OF THE PHILIPPINES (LCP), represented by LCP National President Jerry P. Treñas; City of Calbayog, represented by Mayor Mel Senen S. Sarmiento; and Jerry P. Treñas, in his personal capacity as Taxpayer, Petitioners, vs.COMMISSION ON ELECTIONS; 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; and Municipality of Guihulngan, Province of Negros Oriental, Respondents.

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

G.R. No. 178056

LEAGUE OF CITIES OF THE PHILIPPINES (LCP), represented by LCP National President Jerry P. Treñas; City of Calbayog, represented by Mayor Mel Senen S. Sarmiento; and Jerry P. Treñas, in his personal capacity as Taxpayer, Petitioners, vs.COMMISSION ON ELECTIONS; Municipality of Cabadbaran, Province of Agusan del Norte; Municipality of Carcar, Province of Cebu; Municipality of El Salvador, Province of Misamis Oriental; Municipality of Naga, Cebu; and Department of Budget and Management, Respondents.

R E S O L U T I O N

BERSAMIN, J.:

We consider and resolve the Ad Cautelam Motion for Reconsideration filed by the petitioners vis-à-vis the Resolution promulgated on February 15, 2011.

To recall, the Resolution promulgated on February 15, 2011 granted the Motion for Reconsideration of the respondents presented against the Resolution dated August 24, 2010, reversed the Resolution dated August 24, 2010, and declared the 16 Cityhood Laws — Republic Acts Nos. 9389, 9390, 9391, 9392, 9393, 9394, 9398, 9404, 9405, 9407, 9408, 9409, 9434, 9435, 9436, and 9491 — constitutional.

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LCP vs. COMELECNow, the petitioners anchor their Ad Cautelam Motion for Reconsideration upon the primordial ground that the Court could no longer modify, alter, or amend its judgment declaring the Cityhood Laws unconstitutional due to such judgment having long become final and executory. They submit that the Cityhood Laws violated Section 6 and Section 10 of Article X of the Constitution, as well as the Equal Protection Clause.

The petitioners specifically ascribe to the Court the following errors in its promulgation of the assailed February 15, 2011 Resolution, to wit:

I. THE HONORABLE COURT HAS NO JURISDICTION TO PROMULGATE THE RESOLUTION OF 15 FEBRUARY 2011 BECAUSE THERE IS NO LONGER ANY ACTUAL CASE OR CONTROVERSY TO SETTLE.

II. THE RESOLUTION CONTRAVENES THE 1997 RULES OF CIVIL PROCEDURE AND RELEVANT SUPREME COURT ISSUANCES.

III. THE RESOLUTION UNDERMINES THE JUDICIAL SYSTEM IN ITS DISREGARD OF THE PRINCIPLES OF RES JUDICATA AND THE DOCTRINE OF IMMUTABILITY OF FINAL JUDGMENTS.

IV. THE RESOLUTION ERRONEOUSLY RULED THAT THE SIXTEEN (16) CITYHOOD BILLS DO NOT VIOLATE ARTICLE X, SECTIONS 6 AND 10 OF THE 1987 CONSTITUTION.

V. THE SIXTEEN (16) CITYHOOD LAWS VIOLATE THE EQUAL PROTECTION CLAUSE OF THE CONSTITUTION AND THE RIGHT OF LOCAL GOVERNMENTS TO A JUST SHARE IN THE NATIONAL TAXES.

Ruling

Upon thorough consideration, we deny the Ad Cautelam Motion for Reconsideration for its lack of merit.

I.Procedural Issues

With respect to the first, second, and third assignments of errors, supra, it appears that the petitioners assail the jurisdiction of the Court in promulgating the February 15, 2011 Resolution, claiming that the decision herein had long become final and executory. They state that the Court thereby violated rules of procedure, and the principles of res judicata and immutability of final judgments.

The petitioners posit that the controversy on the Cityhood Laws ended with the April 28, 2009 Resolution denying the respondents’ second motion for reconsideration vis-à-vis the November 18, 2008 Decision for being a prohibited pleading, and in view of the issuance of the entry of judgment on May 21, 2009.

The Court disagrees with the petitioners.

In the April 28, 2009 Resolution, the Court ruled:

By a vote of 6-6, the Motion for Reconsideration of the Resolution of 31 March 2009 is DENIED for lack of merit. The motion is denied since there is no majority that voted to overturn the Resolution of 31 March 2009.

The Second Motion for Reconsideration of the Decision of 18 November 2008 is DENIED for being a prohibited pleading, and the Motion for Leave to Admit Attached Petition in Intervention dated 20 April 2009 and the Petition in Intervention dated 20 April 2009 filed by counsel for Ludivina T. Mas, et al. are also DENIED in view of the denial of the second motion for reconsideration. No further pleadings shall be entertained. Let entry of judgment be made in due course.

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LCP vs. COMELECJustice Presbitero J. Velasco, Jr. wrote a Dissenting Opinion, joined by Justices Consuelo Ynares-Santiago, Renato C. Corona, Minita Chico-Nazario, Teresita Leonardo-De Castro, and Lucas P. Bersamin. Chief Justice Reynato S. Puno and Justice Antonio Eduardo B. Nachura took no part. Justice Leonardo A. Quisumbing is on leave.1

Within 15 days from receipt of the April 28, 2009 Resolution, the respondents filed a Motion To Amend 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, arguing therein that a determination of the issue of constitutionality of the 16 Cityhood Laws upon a motion for reconsideration by an equally divided vote was not binding on the Court as a valid precedent, citing the separate opinion of then Chief Justice Reynato S. Puno in Lambino v. Commission on Elections.2

Thus, in its June 2, 2009 Resolution, the Court issued the following clarification of the April 28, 2009 Resolution, viz:

As a rule, a second motion for reconsideration is a prohibited pleading pursuant to Section 2, Rule 52 of the Rules of Civil Procedure which provides that: "No second motion for reconsideration of a judgment or final resolution by the same party shall be entertained." Thus, a decision becomes final and executory after 15 days from receipt of the denial of the first motion for reconsideration.

However, when a motion for leave to file and admit a second motion for reconsideration is granted by the Court, the Court therefore allows the filing of the second motion for reconsideration. In such a case, the second motion for reconsideration is no longer a prohibited pleading.

In the present case, the Court voted on the second motion for reconsideration filed by respondent cities. In effect, the Court allowed the filing of the second motion for reconsideration. Thus, the second motion for reconsideration was no longer a prohibited pleading. However, for lack of the required number of votes to overturn the 18 November 2008 Decision and 31 March 2009 Resolution, the Court denied the second motion for reconsideration in its 28 April 2009 Resolution.3

As the result of the aforecited clarification, the Court resolved to expunge from the records several pleadings and documents, including respondents’ Motion To Amend Resolution Of April 28, 2009 etc.

The respondents thus filed their Motion for Reconsideration of the Resolution of June 2, 2009, asseverating that their Motion To Amend Resolution Of April 28, 2009 etc. was not another motion for reconsideration of the November 18, 2008 Decision, because it assailed the April 28, 2009 Resolution with respect to the tie-vote on the respondents’ Second Motion For Reconsideration. They pointed out that the Motion To Amend Resolution Of April 28, 2009 etc. was filed on May 14, 2009, which was within the 15-day period from their receipt of the April 28, 2009 Resolution; thus, the entry of judgment had been prematurely made. They reiterated their arguments with respect to a tie-vote upon an issue of constitutionality.

In the September 29, 2009 Resolution,4 the Court required the petitioners to comment on the Motion for Reconsideration of the Resolution of June 2, 2009 within 10 days from receipt.

As directed, the petitioners filed their Comment Ad Cautelam With Motion to Expunge.

The respondents filed their Motion for Leave to File and to Admit Attached "Reply to Petitioners’ ‘Comment Ad Cautelam With Motion to Expunge’", together with the Reply.

On November 17, 2009, the Court resolved to note the petitioners’ Comment Ad Cautelam With Motion to Expunge, to grant the respondents’ Motion for Leave to File and Admit Reply to Petitioners’ Comment Ad Cautelam with Motion to Expunge, and to note the respondents’ Reply to Petitioners’ Comment Ad Cautelam with Motion to Expunge.

On December 21, 2009, the Court, resolving the Motion To Amend Resolution Of April 28, 2009 etc. and voting anew on the Second Motion For Reconsideration in order to reach a concurrence of a majority, promulgated its Decision granting the motion and declaring the Cityhood Laws as constitutional,5 disposing thus:

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LCP vs. COMELECWHEREFORE, respondent LGUs’ Motion for Reconsideration dated June 2, 2009, their "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," dated May 14, 2009, and their second Motion for Reconsideration of the Decision dated November 18, 2008 are GRANTED. The June 2, 2009, the March 31, 2009, and April 31, 2009 Resolutions are REVERSED and SET ASIDE. The entry of judgment made on May 21, 2009 must accordingly be RECALLED.

The instant consolidated petitions and petitions-in-intervention are DISMISSED. The cityhood laws, namely Republic Act Nos. 9389, 9390, 9391, 9392, 9393, 9394, 9398, 9404, 9405, 9407, 9408, 9409, 9434, 9435, 9436, and 9491 are declared VALID and CONSTITUTIONAL.

SO ORDERED.

On January 5, 2010, the petitioners filed an Ad Cautelam Motion for Reconsideration against the December 21, 2009 Decision.6 On the same date, the petitioners also filed a Motion to Annul Decision of 21 December 2009.7

On January 12, 2010, the Court directed the respondents to comment on the motions of the petitioners.8

On February 4, 2010, petitioner-intervenors City of Santiago, City of Legazpi, and City of Iriga filed their separate Manifestations with Supplemental Ad Cautelam Motions for Reconsideration.9 Similar manifestations with supplemental motions for reconsideration were filed by other petitioner-intervenors, specifically: City of Cadiz on February 15, 2010;10 City of Batangas on February 17, 2010;11 and City of Oroquieta on February 24, 2010.12The Court required the adverse parties to comment on the motions.13 As directed, the respondents complied.

On August 24, 2010, the Court issued its Resolution reinstating the November 18, 2008 Decision.14

On September 14, 2010, the respondents timely filed a Motion for Reconsideration of the "Resolution" Dated August 24, 2010.15 They followed this by filing on September 20, 2010 a Motion to Set "Motion for Reconsideration of the ‘Resolution’ dated August 24, 2010" for Hearing.16 On November 19, 2010, the petitioners sent in their Opposition [To the "Motion for Reconsideration of ‘Resolution’ dated August 24, 2010"].17 On November 30, 2010,18 the Court noted, among others, the petitioners’ Opposition.

On January 18, 2011,19 the Court denied the respondents’ Motion to Set "Motion for Reconsideration of the ‘Resolution’ dated August 24, 2010" for Hearing.

Thereafter, on February 15, 2011, the Court issued the Resolution being now challenged.

It can be gleaned from the foregoing that, as the June 2, 2009 Resolution clarified, the respondents’ Second Motion For Reconsideration was not a prohibited pleading in view of the Court’s voting and acting on it having the effect of allowing the Second Motion For Reconsideration; and that when the respondents filed their Motion for Reconsideration of the Resolution of June 2, 2009 questioning the expunging of their Motion To Amend Resolution Of April 28, 2009 etc. (which had been filed within the 15-day period from receipt of the April 28, 2009 Resolution), the Court opted to act on the Motion for Reconsideration of the Resolution of June 2, 2009 by directing the adverse parties through its September 29, 2009 Resolution to comment. The same permitting effect occurred when the Court, by its November 17, 2009 Resolution, granted the respondents’ Motion for Leave to File and Admit Reply to Petitioners’ Comment Ad Cautelam with Motion to Expunge, and noted the attached Reply.

Moreover, by issuing the Resolutions dated September 29, 2009 and November 17, 2009, the Court: (a) rendered ineffective the tie-vote under the Resolution of April 28, 2009 and the ensuing denial of the Motion for Reconsideration of the Resolution of March 31, 2009 for lack of a majority to overturn; (b), re-opened the Decision of November 18, 2008 for a second look under reconsideration; and (c) lifted the directive that no further pleadings would be entertained. The Court in fact entertained and acted on the respondents’ Motion for Reconsideration of the Resolution of June 2, 2009. Thereafter, the Court proceeded to deliberate anew on the respondents’ Second Motion for Reconsideration and ended up with the promulgation of the December 21, 2009 Decision (declaring the Cityhood Laws valid and constitutional).

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LCP vs. COMELECIt is also inaccurate for the petitioners to insist that the December 21, 2009 Decision overturned the November 18, 2008 Decision on the basis of the mere Reflections of the Members of the Court. To be sure, the Reflections were the legal opinions of the Members and formed part of the deliberations of the Court. The reference in the December 21, 2009 Decision to the Reflections pointed out that there was still a pending incident after the April 28, 2009 Resolution that had been timely filed within 15 days from its receipt,20 pursuant to Section 10, Rule 51,21in relation to Section 1, Rule 52,22 of the Rules of Court. Again, the Court did act and deliberate upon this pending incident, leading to the issuance of the December 21, 2009 Decision (declaring the Cityhood Laws free from constitutional infirmity). It was thereafter that the Court rendered its August 24, 2010 Resolution (reinstating the November 18, 2008 Decision), to correct which the respondents’ Motion for Reconsideration of the "Resolution" Dated August 24, 2010 was filed. And, finally, the Court issued its February 15, 2011 Resolution, reversing and setting aside the August 24, 2010 Resolution.

It is worth repeating that the actions taken herein were made by the Court en banc strictly in accordance with the Rules of Court and its internal procedures. There has been no irregularity attending or tainting the proceedings.

It also relevant to state that the Court has frequently disencumbered itself under extraordinary circumstances from the shackles of technicality in order to render just and equitable relief.23

On whether the principle of immutability of judgments and bar by res judicata apply herein, suffice it to state that the succession of the events recounted herein indicates that the controversy about the 16 Cityhood Laws has not yet been resolved with finality. As such, the operation of the principle of immutability of judgments did not yet come into play. For the same reason is an adherence to the doctrine of res judicata not yet warranted, especially considering that the precedential ruling for this case needed to be revisited and set with certainty and finality.

II.Substantive Issues

The petitioners reiterate their position that the Cityhood Laws violate Section 6 and Section 10 of Article X of the Constitution, the Equal Protection Clause, and the right of local governments to a just share in the national taxes.

The Court differs.

Congress clearly intended that the local government units covered by the Cityhood Laws be exempted from the coverage of R.A. No. 9009. The apprehensions of the then Senate President with respect to the considerable disparity between the income requirement of P20 million under the Local Government Code (LGC) prior to its amendment, and the P100 million under the amendment introduced by R.A. No. 9009 were definitively articulated in his interpellation of Senator Pimentel during the deliberations on Senate Bill No. 2157. The then Senate President was cognizant of the fact that there were municipalities that then had pending conversion bills

during the 11th Congress prior to the adoption of Senate Bill No. 2157 as R.A. No. 9009,24 including the municipalities covered by the Cityhood Laws. It is worthy of mention that the pertinent deliberations on Senate Bill No. 2157 occurred on October 5, 2000 while the 11th Congress was in session, and the conversion bills were then pending in the Senate. Thus, the responses of Senator Pimentel made it obvious that R.A. No. 9009 would not apply to the conversion bills then pending deliberation in the Senate during the 11th Congress.

R.A. No. 9009 took effect on June 30, 2001, when the 12th Congress was incipient. By reason of the clear legislative intent to exempt the municipalities covered by the conversion bills pending during the 11th

Congress, the House of Representatives adopted Joint Resolution No. 29, entitled Joint Resolution to Exempt Certain Municipalities Embodied in Bills Filed in Congress before June 30, 2001 from the coverage of Republic Act No. 9009. However, the Senate failed to act on Joint Resolution No. 29. Even so, the House of Representatives readopted Joint Resolution No. 29 as

Joint Resolution No. 1 during the 12th Congress,25 and forwarded Joint Resolution No. 1 to the Senate for approval. Again, the Senate failed to approve Joint Resolution No. 1.

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LCP vs. COMELECAt this juncture, it is worthwhile to consider the manifestation of Senator Pimentel with respect to Joint Resolution No. 1, to wit:

MANIFESTATION OF SENATOR PIMENTEL

House Joint Resolution No. 1 seeks to exempt certain municipalities seeking conversion into cities from the requirement that they must have at least P100 million in income of locally generated revenue, exclusive of the internal revenue share that they received from the central government as required under Republic Act No. 9009.

The procedure followed by the House is questionable, to say the least. The House wants the Senate to do away with the income requirement of P100 million so that, en masse, the municipalities they want exempted could now file bills specifically converting them into cities. The reason they want the Senate to do it first is that Cong. Dodo Macias, chair of the House Committee on Local Governments, I am told, will not entertain any bill for the conversion of municipalities into cities unless the issue of income requirement is first hurdled. The House leadership therefore wants to shift the burden of exempting certain municipalities from the income requirement to the Senate rather than do it itself.

That is most unusual because, in effect, the House wants the Senate to pass a blanket resolution that would qualify the municipalities concerned for conversion into cities on the matter of income alone. Then, at a later date, the House would pass specific bills converting the municipalities into cities. However, income is not only the requirement for municipalities to become cities. There are also the requirements on population and land area.

In effect, the House wants the Senate to tackle the qualification of the municipalities they want converted into cities piecemeal and separately, first is the income under the joint resolution, then the other requirements when the bills are file to convert specific municipalities into cities. To repeat, this is a most unusual manner of creating cities.

My respectful suggestion is for the Senate to request the House to do what they want to do regarding the applications of certain municipalities to become cities pursuant to the requirements of the Local Government Code. If the House wants to exempt certain municipalities from the requirements of the Local Government Code to become cities, by all means, let them do their thing. Specifically, they should act on specific bills to create cities and cite the reasons why the municipalities concerned are qualified to become cities. Only after the House shall have completed what they are expected to do under the law would it be proper for the Senate to act on specific bills creating cities.

In other words, the House should be requested to finish everything that needs to be done in the matter of converting municipalities into cities and not do it piecemeal as they are now trying to do under the joint resolution.

In my long years in the Senate, this is the first time that a resort to this subterfuge is being undertaken to favor the creation of certain cities. I am not saying that they are not qualified. All I am saying is, if the House wants to pass and create cities out of certain municipalities, by all means let them do that. But they should do it following the requirements of the Local Government Code and, if they want to make certain exceptions, they can also do that too. But they should not use the Senate as a ploy to get things done which they themselves should do.

Incidentally, I have recommended this mode of action verbally to some leaders of the House. Had they followed the recommendation, for all I know, the municipalities they had envisioned to be covered by House Joint Resolution No. 1 would, by now – if not all, at least some – have been converted into cities. House Joint Resolution No. 1, the House, in effect, caused the delay in the approval in the applications for cityhood of the municipalities concerned.

Lastly, I do not have an amendment to House Joint Resolution No. 1. What I am suggesting is for the Senate to request the House to follow the procedure outlined in the Local Government Code which has been respected all through the years. By doing so, we uphold the rule of law

and minimize the possibilities of power play in the approval of bills converting municipalities into cities.26

Thereafter, the conversion bills of the respondents were individually filed in the House of Representatives, and were all unanimously and

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LCP vs. COMELECfavorably voted upon by the Members of the House of Representatives.27 The bills, when forwarded to the Senate, were likewise unanimously approved by the Senate.28 The acts of both Chambers of Congress show that the exemption clauses ultimately incorporated in the Cityhood Laws are but the express articulations of the clear legislative intent to exempt the respondents, without exception, from the coverage of R.A. No. 9009. Thereby, R.A. No. 9009, and, by necessity, the LGC, were amended, not by repeal but by way of the express exemptions being embodied in the exemption clauses.

The petitioners further contend that the new income requirement of P100 million from locally generated sources is not arbitrary because it is not difficult to comply with; that there are several municipalities that have already complied with the requirement and have, in fact, been converted into cities, such as Sta. Rosa in Laguna (R.A. No 9264), Navotas (R.A. No. 9387) and San Juan (R.A. No. 9388) in Metro Manila, Dasmariñas in Cavite (R.A. No. 9723), and Biñan in Laguna (R.A. No. 9740); and that several other municipalities have supposedly reached the income of P100 million from locally generated sources, such as Bauan in Batangas, Mabalacat in Pampanga, and Bacoor in Cavite.

The contention of the petitioners does not persuade.

As indicated in the Resolution of February 15, 2011, fifty-nine (59) existing cities had failed as of 2006 to post an average annual income of P100 million based on the figures contained in the certification dated December 5, 2008 by the Bureau of Local Government. The large number of existing cities, virtually 50% of them, still unable to comply with the P100 million threshold income five years after R.A. No. 9009 took effect renders it fallacious and probably unwarranted for the petitioners to claim that the P100 million income requirement is not difficult to comply with.

In this regard, the deliberations on Senate Bill No. 2157 may prove enlightening, thus:

Senator Osmeña III. And could the gentleman help clarify why a municipality would want to be converted into a city?

Senator Pimentel. There is only one reason, Mr. President, and it is not hidden. It is the fact that once converted into a city, the municipality will have roughly more than three times the share that it would be receiving over the internal revenue allotment than it would have if it were to remain a municipality. So more or less three times or more.

Senator Osmeña III. Is it the additional funding that they will be able to enjoy from a larger share from the internal revenue allocations?

Senator Pimentel. Yes, Mr. President.

Senator Osmeña III. Now, could the gentleman clarify, Mr. President, why in the original Republic Act No. 7160, known as the Local Government Code of 1991, such a wide gap was made between a municipality—what a municipality would earn—and a city? Because essentially, to a person’s mind, even with this new requirement, if approved by Congress, if a municipality is earning P100 million and has a population of more than 150,000 inhabitants but has less than 100 square kilometers, it would not qualify as a city.

Senator Pimentel. Yes.

Senator Osmeña III. Now would that not be quite arbitrary on the part of the municipality?

Senator Pimentel. In fact, Mr. President, the House version restores the "or". So, this is a matter that we can very well take up as a policy issue. The chair of the committee does not say that we should, as we know, not listen to arguments for the restoration of the word "or" in the population or territorial requirement.

Senator Osmeña III. Mr. President, my point is that, I agree with the gentleman’s "and", but perhaps we should bring down the area. There are certainly very crowded places in this country that are less than 10,000 hectares—100 square kilometers is 10,000 hectares. There might only be 9,000 hectares or 8,000 hectares. And it would be unfair if these municipalities already earning P100,000,000 in locally generated funds and have a population of over 150,000 would not be qualified because of the simple fact that the physical area does not cover 10,000 hectares.

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LCP vs. COMELECSenator Pimentel. Mr. President, in fact, in Metro Manila there are any number of municipalities. San Juan is a specific example which, if we apply the present requirements, would not qualify: 100 square kilometers and a population of not less than 150,000.

But my reply to that, Mr. President, is that they do not have to become a city?

Senator Osmeña III. Because of the income.

Senator Pimentel. But they are already earning a lot, as the gentleman said. Otherwise, the danger here, if we become lax in the requirements, is the metropolis-located local governments would have more priority in terms of funding because they would have more qualifications to become a city compared to far-flung areas in Mindanao or in the Cordilleras, or whatever.

Therefore, I think we should not probably ease up on the requirements. Maybe we can restore the word "or" so that if they do not have the 100 square kilometers of territory, then if they qualify in terms of population and income, that would be all right, Mr. President.

Senator Osmeña III. Mr. President, I will not belabor the point at this time. I know that the distinguished gentleman is considering several amendments to the Local Government Code. Perhaps this is something that could be further refined at a later time, with his permission.

So I would like to thank the gentleman for his graciousness in answering our questions.

Senator Pimentel. I also thank the gentleman, Mr. President.29

The Court takes note of the fact that the municipalities cited by the petitioners as having generated the threshold income of P100 million from local sources, including those already converted into cities, are either in Metro Manila or in provinces close to Metro Manila. In comparison, the municipalities covered by the Cityhood Laws are spread out in the different provinces of the Philippines, including the Cordillera and Mindanao regions, and are considerably very distant from Metro Manila. This reality underscores the danger the enactment of R.A. No. 9009 sought to prevent, i.e., that "the metropolis-located local governments would have more priority in terms of funding because they would have more qualifications to become a city compared to the far-flung areas in Mindanao or in the Cordilleras, or whatever," actually resulting from the abrupt increase in the income requirement. Verily, this result is antithetical to what the Constitution and LGC have nobly envisioned in favor of countryside development and national growth. Besides, this result should be arrested early, to avoid the unwanted divisive effect on the entire country due to the local government units closer to the National Capital Region being afforded easier access to the bigger share in the national coffers than other local government units.

There should also be no question that the local government units covered by the Cityhood Laws belong to a class of their own. They have proven themselves viable and capable to become component cities of their respective provinces. They are and have been centers of trade and commerce, points of convergence of transportation, rich havens of agricultural, mineral, and other natural resources, and flourishing tourism spots. In his speech delivered on the floor of the Senate to sponsor House Joint Resolution No. 1, Senator Lim recognized such unique traits,30viz:

It must be noted that except for Tandag and Lamitan, which are both second-class municipalities in terms of income, all the rest are categorized by the Department of Finance as first-class municipalities with gross income of at least P70 million as per Commission of Audit Report for 2005. Moreover, Tandag and Lamitan, together with Borongan, Catbalogan, and Tabuk, are all provincial capitals.

The more recent income figures of the 12 municipalities, which would have increased further by this time, indicate their readiness to take on the responsibilities of cityhood.

Moreover, the municipalities under consideration are leading localities in their respective provinces. Borongan, Catbalogan, Tandag, Batac and Tabuk are ranked number one in terms of income among all the municipalities in their respective provinces; Baybay and Bayugan are number two; Bogo and Lamitan are number three; Carcar, number four; and Tayabas, number seven. Not only are they pacesetters in their respective provinces, they are also among the

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LCP vs. COMELECfrontrunners in their regions – Baybay, Bayugan and Tabuk are number two income-earners in Regions VIII, XIII, and CAR, respectively; Catbalogan and Batac are number three in Regions VIII and I, respectively; Bogo, number five in Region VII; Borongan and Carcar are both number six in Regions VIII and VII, respectively. This simply shows that these municipalities are viable.

Petitioner League of Cities argues that there exists no issue with respect to the cityhood of its member cities, considering that they became cities in full compliance with the criteria for conversion at the time of their creation.

The Court considers the argument too sweeping. What we pointed out was that the previous income requirement of P20 million was definitely not insufficient to provide the essential government facilities, services, and special functions vis-à-vis the population of a component city. We also stressed that the increased income requirement ofP100 million was not the only conclusive indicator for any municipality to survive and remain viable as a component city. These observations were unerringly reflected in the respective incomes of the fifty-nine (59) members of the League of Cities that have still failed, remarkably enough, to be compliant with the new requirement of the P100 million threshold income five years after R.A. No. 9009 became law.

Undoubtedly, the imposition of the income requirement of P100 million from local sources under R.A. No. 9009 was arbitrary. When the sponsor of the law chose the specific figure of P100 million, no research or empirical data buttressed the figure. Nor was there proof that the proposal took into account the after-effects that were likely to arise. As already mentioned, even the danger the passage of R.A. No. 9009 sought to prevent might soon become a reality. While the Constitution mandates that the creation of local government units must comply with the criteria laid down in the LGC, it cannot be justified to insist that the Constitution must have to yield to every amendment to the LGC despite such amendment imminently producing effects contrary to the original thrusts of the LGC to promote autonomy, decentralization, countryside development, and the concomitant national growth.

Moreover, if we were now to adopt the stringent interpretation of the Constitution the petitioners are espousing, we may have to apply the same restrictive yardstick against the recently converted cities cited by the petitioners, and find two of them whose conversion laws have also to be struck down for being unconstitutional. The two laws are R.A. No. 938731 and R.A. No. 9388,32 respectively converting the municipalities of San Juan and Navotas into highly urbanized cities. A cursory reading of the laws indicates that there is no indication of compliance with the requirements imposed by the LGC, for, although the two local government units concerned presumably complied with the income requirement of P50 million under Section 452 of the LGC and the income requirement of P100 million under the amended Section 450 of the LGC, they obviously did not meet the requirements set forth under Section 453 of the LGC, to wit:

Section 453. Duty to Declare Highly Urbanized Status.—It shall be the duty of the President to declare a city as highly urbanized within thirty (30) days after it shall have met the minimum requirements prescribed in the immediately preceding Section, upon proper application therefor and ratification in a plebiscite by the qualified voters therein.

Indeed, R.A. No. 9387 and R.A. No. 9388 evidently show that the President had not classified San Juan and Navotas as highly urbanized cities upon proper application and ratification in a plebiscite by the qualified voters therein. A further perusal of R.A. No. 9387 reveals that San Juan did not qualify as a highly urbanized city because it had a population of only 125,558, contravening the required minimum population of 200,000 under Section 452 of the LGC. Such non-qualification as a component city was conceded even by Senator Pimentel during the deliberations on Senate Bill No. 2157.

The petitioners’ contention that the Cityhood Laws violated their right to a just share in the national taxes is not acceptable.

In this regard, it suffices to state that the share of local government units is a matter of percentage under Section 285 of the LGC, not a specific amount. Specifically, the share of the cities is 23%, determined on the basis of population (50%), land area (25%), and equal sharing (25%). This share is also dependent on the number of existing cities, such that when the number of cities increases, then more will divide and share the allocation for cities. However, we have to note that the allocation by the National Government is not a constant, and can either increase or decrease. With every newly converted city becoming entitled to share the allocation for cities, the percentage of internal revenue allotment (IRA) entitlement of each city will decrease, although the actual amount received may be more than that received in the preceding year. That is a necessary consequence of Section 285 and Section 286 of the LGC.

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LCP vs. COMELECAs elaborated here and in the assailed February 15, 2011 Resolution, the Cityhood Laws were not violative of the Constitution and the LGC. The respondents are thus also entitled to their just share in the IRA allocation for cities. They have demonstrated their viability as component cities of their respective provinces and are developing continuously, albeit slowly, because they had previously to share the IRA with about 1,500 municipalities. With their conversion into component cities, they will have to share with only around 120 cities.

Local government units do not subsist only on locally generated income, but also depend on the IRA to support their development. They can spur their own developments and thereby realize their great potential of encouraging trade and commerce in the far-flung regions of the country. Yet their potential will effectively be stunted if those already earning more will still receive a bigger share from the national coffers, and if commercial activity will be more or less concentrated only in and near Metro Manila.

III.Conclusion

We should not ever lose sight of the fact that the 16 cities covered by the Cityhood Laws not only had conversion bills pending during the 11th Congress, but have also complied with the requirements of the LGC prescribed prior to its amendment by R.A. No. 9009. Congress undeniably gave these cities all the considerations that justice and fair play demanded. Hence, this Court should do no less by stamping its imprimatur to the clear and unmistakable legislative intent and by duly recognizing the certain collective wisdom of Congress.

WHEREFORE, the Ad Cautelam Motion for Reconsideration (of the Decision dated 15 February 2011) is denied with finality.

SO ORDERED.

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LCP vs. COMELEC

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 176951               June 28, 2011

League of Cities of the Philippines (LCP), represented by LCP National President Jerry P. Treñas; City of Calbayog, represented by Mayor Mel Senen S. Sarmiento; and Jerry P. Treñas, in his personal capacity as Taxpayer, Petitioners, vs.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.

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

G.R. No. 177499

League of Cities of the Philippines (LCP), represented by LCP National President Jerry P. Treñas; City of Calbayog, represented by Mayor Mel Senen S. Sarmiento; and Jerry P. Treñas, in his personal capacity as Taxpayer, Petitioners, vs.Commission on Elections; 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; and Municipality of Guihulngan, Province of Negros Oriental, Respondents.

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

G.R. No. 178056

League of Cities of the Philippines (LCP), represented by LCP National President Jerry P. Treñas; City of Calbayog, represented by Mayor Mel Senen S. Sarmiento; and Jerry P. Treñas, in his personal capacity as Taxpayer, Petitioners, vs.Commission on Elections; Municipality of Cabadbaran, Province of Agusan del Norte; Municipality of Carcar, Province of Cebu; Municipality of El Salvador, Province of Misamis Oriental; Municipality of Naga, Cebu; and Department of Budget and Management, Respondents.

R E S O L U T I O N

BERSAMIN, J.:

We hereby consider and resolve:– (a) the petitioners’ Motion for Leave to File Motion for Reconsideration of the Resolution of 12 April 2011, attached to which is a Motion for Reconsideration of the Resolution dated 12 April 2011 dated April 29, 2011 (Motion For Reconsideration), praying that the resolution of April 12, 2011 be reconsidered and set aside; and (b) the respondents’ Motion for Entry of Judgment dated May 9, 2011.

After thorough consideration of the incidents, we deny the Motion for Reconsideration and grant the Motion for Entry of Judgment.

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LCP vs. COMELECAs its prayer for relief shows, the Motion for Reconsideration seeks the reconsideration, reversal, or setting aside of the resolution of April 12, 2011.1 In turn, the resolution of April 12, 2011 denied the petitioners’ Ad Cautelam Motion for Reconsideration (of the Decision dated 15 February 2011).2 Clearly, the Motion for Reconsideration is really a second motion for reconsideration in relation to the resolution dated February 15, 2011.3

Another indicium of its being a second motion for reconsideration is the fact that the Motion for Reconsiderationraises issues entirely identical to those the petitioners already raised in their Ad Cautelam Motion for Reconsideration (of the Decision dated 15 February 2011). The following tabulation demonstrates the sameness of issues between the motions, to wit:

Motion for Reconsiderationof April 29, 2011

Ad Cautelam Motion for Reconsideration (of the Decision dated

15 February 2011) dated March 8, 2011

I. With due respect, neither the Rules of Court nor jurisprudence allows the Honorable Court to take cognizance of Respondent Municipalities multiple motions. By doing so, the Honorable Court therefore acted contrary to the Rules of Court and its internal procedures.

II. The Resolution Contravenes The 1997 Rules Of Civil Procedure And Relevant Supreme Court Issuances.

II. Contrary to the ruling of the Honorable Court in the Assailed Resolution, the controversy involving the Sixteen (16) Cityhood laws had long been resolved with finality;thus, the principles of immutability of judgment and res judicata are applicable and operate to deprive the Honorable Court of jurisdiction.

I. The Honorable Court Has No Jurisdiction To Promulgate The Resolution Of 15 February 2011, Because There is No Longer Any Actual Case Or Controversy To Settle.

III. The Resolution Undermines The Judicial System In Its Disregard Of The Principles Of Res Judicata And The Doctrine of Immutability of Final Judgments.

III. Contrary to the Assailed Resolution of the Honorable Court, the sixteen (16) Cityhood laws neither repealed nor amended the Local Government Code. The Honorable Court committed an error when it failed to rule in the Assailed Resolution that the Sixteen (16) Cityhood Laws violated Article X, Sections 6 and 10 of the Constitution.

IV. The Resolution Erroneously Ruled That The Sixteen (16) Cityhood Bills Do Not Violate Article X, Sections 6 and 10 Of The 1987 Constitution.

V. The Sixteen (16) Cityhood Laws Violate The Equal Protection Clause Of The Constitution And The Right Of Local Government Units To A Just Share In The National Taxes.

IV. With due respect, the constitutionality of R.A. 9009 is not an issue in this case. It was error on the part of the Honorable Court to consider the law arbitrary.

That Issue No. IV (i.e., the constitutionality of Republic Act No. 9009) appears in the Motion for Reconsiderationbut is not found in the Ad Cautelam Motion for Reconsideration (of the Decision dated 15 February 2011) is of no

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LCP vs. COMELECconsequence, for the constitutionality of R.A. No. 9009 is neither relevant nor decisive in this case, the reference to said legislative enactment being only for purposes of discussion.

The Motion for Reconsideration, being a second motion for reconsideration, cannot be entertained. As to that, Section 24 of Rule 51 of the Rules of Court is unqualified. The Court has firmly held that a second motion for reconsideration is a prohibited pleading,5 and only for extraordinarily persuasive reasons and only after an express leave has been first obtained may a second motion for reconsideration be entertained.6 The restrictive policy against a second motion for reconsideration has been re-emphasized in the recently promulgated Internal Rules of the Supreme Court, whose Section 3, Rule 15 states:

Section 3. Second motion for reconsideration. – The Court shall not entertain a second motion for reconsideration, and any exception to this rule can only be granted in the higher interest of justice by the Court en banc upon a vote of at least two-thirds of its actual membership. There is reconsideration "in the higher interest of justice" when the assailed decision is not only legally erroneous, but is likewise patently unjust and potentially capable of causing unwarranted and irremediable injury or damage to the parties. A second motion for reconsideration can only be entertained before the ruling sought to be reconsidered becomes final by operation of law or by the Court’s declaration.

In the Division, a vote of three Members shall be required to elevate a second motion for reconsideration to the Court En Banc.

We observe, too, that the prescription that a second motion for reconsideration "can only be entertained before the ruling sought to be reconsidered becomes final by operation of law or by the Court’s declaration" even renders the denial of the petitioners’ Motion for Reconsideration more compelling. As the resolution of April 12, 2011 bears out,7 the ruling sought to be reconsidered became final by the Court’s express declaration. Consequently, the denial of the Motion for Reconsideration is immediately warranted.

Still, the petitioners seem to contend that the Court had earlier entertained and granted the respondents’ own second motion for reconsideration. There is no similarity between then and now, however, for the Court en banc itself unanimously declared in the resolution of June 2, 2009 that the respondents’ second motion for reconsideration was "no longer a prohibited pleading."8 No similar declaration favors the petitioners’ Motion for Reconsideration.

Finally, considering that the petitioners’ Motion for Reconsideration merely rehashes the issues previously put forward, particularly in the Ad Cautelam Motion for Reconsideration (of the Decision dated 15 February 2011), the Court, having already passed upon such issues with finality, finds no need to discuss the issues again to avoid repetition and redundancy.

Accordingly, the finality of the resolutions upholding the constitutionality of the 16 Cityhood Laws now absolutely warrants the granting of respondents’ Motion for Entry of Judgment.

WHEREFORE, the Court denies the petitioners’ Motion for Leave to File Motion for Reconsideration of the Resolution of 12 April 2011 and the attached Motion for Reconsideration of the Resolution of 12 April 2011; grants the respondents’ Motion for Entry of Judgment dated May 9, 2011; and directs the Clerk of Court to forthwith issue the Entry of Judgment in this case.

No further pleadings or submissions by any party shall be entertained.

SO ORDERED.

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Navarro vs. Ermita

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 180050               February 10, 2010

RODOLFO G. NAVARRO, VICTOR F. BERNAL, and RENE O. MEDINA, Petitioners, vs.EXECUTIVE SECRETARY EDUARDO ERMITA, representing the President of the Philippines; Senate of the Philippines, represented by the SENATE PRESIDENT; House of Representatives, represented by the HOUSE SPEAKER; GOVERNOR ROBERT ACE S. BARBERS, representing the mother province of Surigao del Norte; GOVERNOR GERALDINE ECLEO VILLAROMAN, representing the new Province of Dinagat Islands, Respondents.

D E C I S I O N

PERALTA, J.:

This is a petition for certiorari under Rule 65 of the Rules of Court seeking to nullify Republic Act (R.A.) No. 9355, otherwise known as An Act Creating the Province of Dinagat Islands, for being unconstitutional.

Petitioners Rodolfo G. Navarro, Victor F. Bernal, and Rene O. Medina aver that they are taxpayers and residents of the Province of Surigao del Norte. They have served the Province of Surigao del Norte once as Vice- Governor and members of the Provincial Board, respectively. They claim to have previously filed a similar petition, which was dismissed on technical grounds.1 They allege that the creation of the Dinagat Islands as a new province, if uncorrected, perpetuates an illegal act of Congress, and unjustly deprives the people of Surigao del Norte of a large chunk of its territory, Internal Revenue Allocation and rich resources from the area.

The facts are as follows:

The mother province of Surigao del Norte was created and established under R.A. No. 2786 on June 19, 1960. The province is composed of three main groups of islands: (1) the Mainland and Surigao City; (2) Siargao Island and Bucas Grande; and (3) Dinagat Island, which is composed of seven municipalities, namely, Basilisa, Cagdianao, Dinagat, Libjo, Loreto, San Jose, and Tubajon.

Based on the official 2000 Census of Population and Housing conducted by the National Statistics Office (NSO),2the population of the Province of Surigao del Norte as of May 1, 2000 was 481,416, broken down as follows:

Mainland 281,111

Surigao City 118,534

Siargao Island & Bucas Grande 93,354

Dinagat Island 106,951

Under Section 461 of R.A. No. 7610, otherwise known as The Local Government Code, a province may be created if it has an average annual income of not less than P20 million based on 1991 constant prices as certified by the Department of Finance, and a population of not less than 250,000 inhabitants as certified by the NSO, or a contiguous territory of at least 2,000 square kilometers as certified by the Lands Management Bureau. The territory need not be contiguous if it comprises two or more islands or is separated by a chartered city or cities, which do not contribute to the income of the province.

Page 186: Municipal Corporations

Navarro vs. Ermita On April 3, 2002, the Office of the President, through its Deputy Executive Secretary for Legal Affairs, advised the Sangguniang Panlalawigan of the Province of Surigao del Norte of the deficient population in the proposed Province of Dinagat Islands.3

In July 2003, the Provincial Government of Surigao del Norte conducted a special census, with the assistance of an NSO District Census Coordinator, in the Dinagat Islands to determine its actual population in support of the house bill creating the Province of Dinagat Islands. The special census yielded a population count of 371,576 inhabitants in the proposed province. The NSO, however, did not certify the result of the special census. On July 30, 2003, Surigao del Norte Provincial Governor Robert Lyndon S. Barbers issued Proclamation No. 01, which declared as official, for all purposes, the 2003 Special Census in Dinagat Islands showing a population of 371,576.4

The Bureau of Local Government Finance certified that the average annual income of the proposed Province of Dinagat Islands for calendar year 2002 to 2003 based on the 1991 constant prices was P82,696,433.23. The land area of the proposed province is 802.12 square kilometers.

On August 14, 2006 and August 28, 2006, the Senate and the House of Representatives, respectively, passed the bill creating the Province of Dinagat Islands. It was approved and enacted into law as R.A. No. 9355 on October 2, 2006 by President Gloria Macapagal-Arroyo.

On December 2, 2006, a plebiscite was held in the mother Province of Surigao del Norte to determine whether the local government units directly affected approved of the creation of the Province of Dinagat Islands into a distinct and independent province comprising the municipalities of Basilisa, Cagdianao, Dinagat, Libjo (Albor), Loreto, San Jose, and Tubajon. The result of the plebiscite yielded 69,943 affirmative votes and 63,502 negative votes.5

On December 3, 2006, the Plebiscite Provincial Board of Canvassers proclaimed that the creation of Dinagat Islands into a separate and distinct province was ratified and approved by the majority of the votes cast in the plebiscite.6

On January 26, 2007, a new set of provincial officials took their oath of office following their appointment by President Gloria Macapagal-Arroyo. Another set of provincial officials was elected during the synchronized national and local elections held on May 14, 2007. On July 1, 2007, the elected provincial officials took their oath of office; hence, the Province of Dinagat Islands began its corporate existence.7

Petitioners contended that the creation of the Province of Dinagat Islands under R.A. No. 9355 is not valid because it failed to comply with either the population or land area requirement prescribed by the Local Government Code.

Petitioners prayed that R.A. No. 9355 be declared unconstitutional, and that all subsequent appointments and elections to the new vacant positions in the newly created Province of Dinagat Islands be declared null and void. They also prayed for the return of the municipalities of the Province of Dinagat Islands and the return of the former districts to the mother Province of Surigao del Norte.

Petitioners raised the following issues:

I

WHETHER OR NOT REPUBLIC ACT NO. 9355, CREATING THE NEW PROVINCE OF DINAGAT ISLANDS, COMPLIED WITH THE CONSTITUTION AND STATUTORY REQUIREMENTS UNDER SECTION 461 OF REPUBLIC ACT NO. 7160, OTHERWISE KNOWN AS THE LOCAL GOVERNMENT CODE OF 1991.

II

WHETHER OR NOT THE CREATION OF DINAGAT AS A NEW PROVINCE BY THE RESPONDENTS IS AN ACT OF GERRYMANDERING.

III

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Navarro vs. Ermita WHETHER OR NOT THE RESULT OF THE PLEBISCITE IS CREDIBLE AND TRULY REFLECTS THE MANDATE OF THE PEOPLE.8

In her Memorandum, respondent Governor Geraldine B. Ecleo-Villaroman of the Province of Dinagat Islands raises procedural issues. She contends that petitioners do not have the legal standing to question the constitutionality of the creation of the Province of Dinagat, since they have not been directly injured by its creation and are without substantial interest over the matter in controversy. Moreover, she alleges that the petition is moot and academic because the existence of the Province of Dinagat Islands has already commenced; hence, the petition should be dismissed.

The contention is without merit.

In Coconut Oil Refiners Association, Inc. v. Torres,9 the Court held that in cases of paramount importance where serious constitutional questions are involved, the standing requirements may be relaxed and a suit may be allowed to prosper even where there is no direct injury to the party claiming the right of judicial review. In the same vein, with respect to other alleged procedural flaws, even assuming the existence of such defects, the Court, in the exercise of its discretion, brushes aside these technicalities and takes cognizance of the petition considering its importance and in keeping with the duty to determine whether the other branches of the government have kept themselves within the limits of the Constitution.10

Further, supervening events, whether intended or accidental, cannot prevent the Court from rendering a decision if there is a grave violation of the Constitution.11 The courts will decide a question otherwise moot and academic if it is capable of repetition, yet evading review.12

The main issue is whether or not R.A. No. 9355 violates Section 10, Article X of the Constitution.

Petitioners contend that the proposed Province of Dinagat Islands is not qualified to become a province because it failed to comply with the land area or the population requirement, despite its compliance with the income requirement. It has a total land area of only 802.12 square kilometers, which falls short of the statutory requirement of at least 2,000 square kilometers. Moreover, based on the NSO 2000 Census of Population, the total population of the proposed Province of Dinagat Islands is only 106,951, while the statutory requirement is a population of at least 250,000 inhabitants.

Petitioners allege that in enacting R.A. No. 9355 into law, the House of Representatives and the Senate erroneously relied on paragraph 2 of Article 9 of the Rules and Regulations Implementing the Local Government Code of 1991, which states that "[t]he land area requirement shall not apply where the proposed province is composed of one (1) or more islands."13 The preceding italicized provision contained in the Implementing Rules and Regulations is not expressly or impliedly stated as an exemption to the land area requirement in Section 461 of the Local Government Code. Petitioners assert that when the Implementing Rules and Regulations conflict with the law that they seek to implement, the law prevails.

On the other hand, respondents contend in their respective Memoranda that the Province of Dinagat Islands met the legal standard for its creation.1avvphi1

First, the Bureau of Local Government Finance certified that the average annual income of the proposed Province of Dinagat Islands for the years 2002 to 2003 based on the 1991 constant prices was P82,696,433.25.

Second, the Lands Management Bureau certified that though the land area of the Province of Dinagat Islands is 802.12 square kilometers, it is composed of one or more islands; thus, it is exempt from the required land area of 2,000 square kilometers under paragraph 2 of Article 9 of the Rules and Regulations Implementing the Local Government Code.

Third, in the special census conducted by the Provincial Government of Surigao del Norte, with the assistance of a District Census Coordinator of the NSO, the number of inhabitants in the Province of Dinagat Islands as of 2003, or almost three years before the enactment of R.A. No. 9355 in 2006, was 371,576, which is more than the minimum requirement of 250,000 inhabitants.

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Navarro vs. Ermita In his Memorandum, respondent Governor Ace S. Barbers contends that although the result of the special census conducted by the Provincial Government of Surigao del Norte on December 2, 2003 was never certified by the NSO, it is credible since it was conducted with the aid of a representative of the NSO. He alleged that the lack of certification by the NSO was cured by the presence of NSO officials, who testified during the deliberations on House Bill No. 884 creating the Province of Dinagat Islands, and who questioned neither the conduct of the special census nor the validity of the result.

The Ruling of the Court

The petition is granted.

The constitutional provision on the creation of a province in Section 10, Article X of the Constitution states:

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

Pursuant to the Constitution, the Local Government Code of 1991 prescribed the criteria for the creation of a province, thus:

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

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

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

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

(b) The territory need not be contiguous if it comprises two (2) or more islands or is separated by a chartered city or cities which do not contribute to the income of the province.

(c) The average annual income shall include the income accruing to the general fund, exclusive of special funds, trust funds, transfers, and non-recurring income.15

As a clarification of the territorial requirement, the Local Government Code requires a contiguous territory of at least 2,000 square kilometers, as certified by the Lands Management Bureau. However, the territory need not be contiguous if it comprises two (2) or more islands or is separated by a chartered city or cities that do not contribute to the income of the province.

If a proposed province is composed of two or more islands, does "territory," under Sec. 461 of the Local Government Code, include not only the land mass above the water, but also that which is beneath it?

To answer the question above, the discussion in Tan v. Commission on Elections (COMELEC)16 is enlightening.

In Tan v. COMELEC, petitioners therein contended that Batas Pambansa Blg. 885, creating the new Province of Negros del Norte, was unconstitutional for it was not in accord with Art. XI, Sec. 3 of the Constitution, and Batas Pambansa Blg. 337, the former Local Government Code. Although what was applicable then was the 1973 Constitution and the former Local Government Code, the provisions pertinent to the case are substantially similar to the provisions in this case.

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Navarro vs. Ermita Art. XI, Sec. 3 of the 1973 Constitution provides:

Sec. 3. No province, city, municipality or barrio (barangay in the 1987 Constitution) 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.

The requisites for the creation of a province in Sec. 197 of Batas Pambansa Blg. 337 are similar to the requisites in Sec. 461 of the Local Government Code of 1991, but the requirements for population and territory/land area are lower now, while the income requirement is higher. Sec. 197 of Batas Pambansa Blg. 337, the former Local Government Code, provides:

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 allotted for both the general and infrastructure funds, exclusive of trust funds, transfers and nonrecurring income.17

In Tan v. COMELEC, petitioners therein filed a case for Prohibition for the purpose of stopping the COMELEC from conducting the plebiscite scheduled on January 3, 1986. Since the Court was in recess, it was unable to consider the petition on time. Petitioners filed a supplemental pleading, averring that the plebiscite sought to be restrained by them was held as scheduled, but there were still serious issues raised in the case affecting the legality, constitutionality and validity of such exercise which should properly be passed upon and resolved by the Court.

At issue in Tan was the land area of the new Province of Negros del Norte, and the validity of the plebiscite, which did not include voters of the parent Province of Negros Occidental, but only those living within the territory of the new Province of Negros del Norte.

The Court held that the plebiscite should have included the people living in the area of the proposed new province and those living in the parent province. However, the Court did not direct the conduct of a new plebiscite, because the factual and legal basis for the creation of the new province did not exist as it failed to satisfy the land area requirement; hence, Batas Pambansa Blg. 885, creating the new Province of Negros del Norte, was declared unconstitutional. The Court found that the land area of the new province was only about 2,856 square kilometers, which was below the statutory requirement then of 3,500 square kilometers.

Respondents in Tan insisted that when the Local Government Code speaks of the required territory of the province to be created, what is contemplated is not only the land area, but also the land and water over which the said province has jurisdiction and control. The respondents submitted 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.

The Court stated that "[s]uch an interpretation is strained, incorrect and fallacious."18 It held:

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, [n]ext, 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

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Navarro vs. Ermita "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).19

The discussion of the Court in Tan on the definition and usage of the terms "territory," and "contiguous," and the meaning of the provision, "The territory need not be contiguous if it comprises two or more islands," contained in Sec. 197 of the former Local Government Code, which provides for the requisites in the creation of a new province, is applicable in this case since there is no reason for a change in their respective definitions, usage, or meaning in its counterpart provision in the present Local Government Code contained in Sec. 461 thereof.

The territorial requirement in the Local Government Code is adopted in the Rules and Regulations Implementing the Local Government Code of 1991 (IRR),20 thus:

ART. 9. Provinces.—(a) Requisites for creation—A province shall not be created unless the following requisites on income and either population or land area are present:

(1) Income — An average annual income of not less than Twenty Million Pesos (P20,000,000.00) for the immediately preceding two (2) consecutive years based on 1991 constant prices, as certified by DOF. The average annual income shall include the income accruing to the general fund, exclusive of special funds, special accounts, transfers, and nonrecurring income; and

(2) Population or land area - Population which shall not be less than two hundred fifty thousand (250,000) inhabitants, as certified by National Statistics Office; or land area which must be contiguous with an area of at least two thousand (2,000) square kilometers, as certified by LMB. The territory need not be contiguous if it comprises two (2) or more islands or is separated by a chartered city or cities which do not contribute to the income of the province. The land area requirement shall not apply where the proposed province is composed of one (1) or more islands. The territorial jurisdiction of a province sought to be created shall be properly identified by metes and bounds.

However, the IRR went beyond the criteria prescribed by Section 461 of the Local Government Code when it added the italicized portion above stating that "[t]he land area requirement shall not apply where the proposed province is composed of one (1) or more islands." Nowhere in the Local Government Code is the said provision stated or implied. Under Section 461 of the Local Government Code, the only instance when the territorial or land area requirement need not be complied with is when there is already compliance with the population requirement. The Constitution requires that the criteria for the creation of a province, including any exemption from such criteria, must all be written in the Local Government Code.21 There is no dispute that in case of discrepancy between the basic law and the rules and regulations implementing the said law, the basic law prevails, because the rules and regulations cannot go beyond the terms and provisions of the basic law.22

Hence, the Court holds that the provision in Sec. 2, Art. 9 of the IRR stating that "[t]he land area requirement shall not apply where the proposed province is composed of one (1) or more islands" is null and void.

Respondents, represented by the Office of the Solicitor General, argue that rules and regulations have the force and effect of law as long as they are germane to the objects and purposes of the law. They contend that the exemption from the land area requirement of 2,000 square kilometers is germane to the purpose of the Local Government Code to develop political and territorial subdivisions into self-reliant communities and make them more effective partners in the attainment of national goals.23 They assert that in Holy Spirit Homeowners Association, Inc. v. Defensor,24 the Court declared as valid the implementing rules and regulations of a statute, even though the administrative agency added certain provisions in the implementing rules that were not found in the law.

In Holy Spirit Homeowners Association, Inc. v. Defensor, the provisions in the implementing rules and regulations, which were questioned by petitioner therein, merely filled in the details in accordance with a known standard. The law that was questioned was R.A. No. 9207, otherwise known as "National Government Center (NGC) Housing and Land Utilization Act of 2003." It was therein declared that the "policy of the State [was] to secure the land tenure of the urban

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Navarro vs. Ermita poor. Toward this end, lands located in the NGC, Quezon City shall be utilized for housing, socioeconomic, civic, educational, religious and other purposes." Section 5 of R.A. No. 9207 created the National Government Center Administration Committee, which was tasked to administer, formulate the guidelines and policies and implement the land disposition of the areas covered by the law.

Petitioners therein contended that while Sec. 3.2 (a.1) of the IRR fixed the selling rate of a lot at P700.00 per sq. m., R.A. No. 9207 did not provide for the price. In addition, Sec. 3.2 (c.1) of the IRR penalizes a beneficiary who fails to execute a contract to sell within six (6) months from the approval of the subdivision plan by imposing a price escalation, while there is no such penalty imposed by R.A. No. 9207. Thus, they conclude that the assailed provisions conflict with R.A. No. 9207 and should be nullified.

In Holy Spirit Homeowners Association, Inc., the Court held:

Where a rule or regulation has a provision not expressly stated or contained in the statute being implemented, that provision does not necessarily contradict the statute. A legislative rule is in the nature of subordinate legislation, designed to implement a primary legislation by providing the details thereof. All that is required is that the regulation should be germane to the objects and purposes of the law; that the regulation be not in contradiction to but in conformity with the standards prescribed by the law.

In Section 5 of R.A. No. 9207, the Committee is granted the power to administer, formulate guidelines and policies, and implement the disposition of the areas covered by the law. Implicit in this authority and the statute’s objective of urban poor housing is the power of the Committee to formulate the manner by which the reserved property may be allocated to the beneficiaries. Under this broad power, the Committee is mandated to fill in the details such as the qualifications of beneficiaries, the selling price of the lots, the terms and conditions governing the sale and other key particulars necessary to implement the objective of the law. These details are purposely omitted from the statute and their determination is left to the discretion of the Committee because the latter possesses special knowledge and technical expertise over these matters.

The Committee’s authority to fix the selling price of the lots may be likened to the rate-fixing power of administrative agencies. In case of a delegation of rate-fixing power, the only standard which the legislature is required to prescribe for the guidance of the administrative authority is that the rate be reasonable and just. However, it has been held that even in the absence of an express requirement as to reasonableness, this standard may be implied. In this regard, petitioners do not even claim that the selling price of the lots is unreasonable.

The provision on the price escalation clause as a penalty imposed to a beneficiary who fails to execute a contract to sell within the prescribed period is also within the Committee’s authority to formulate guidelines and policies to implement R.A. No. 9207. The Committee has the power to lay down the terms and conditions governing the disposition of said lots, provided that these are reasonable and just. There is nothing objectionable about prescribing a period within which the parties must execute the contract to sell. This condition can ordinarily be found in a contract to sell and is not contrary to law, morals, good customs, public order, or public policy.25

Hence, the provisions in the implementing rules and regulations that were questioned in Holy Spirit Homeowners Association, Inc. merely filled in the necessary details to implement the objective of the law in accordance with a known standard, and were thus germane to the purpose of the law.

In this case, the pertinent provision in the IRR did not fill in any detail in accordance with a known standard provided for by the law. Instead, the IRR added an exemption to the standard or criteria prescribed by the Local Government Code in the creation of a province as regards the land area requirement, which exemption is not found in the Code. As such, the provision in the IRR that the land area requirement shall not apply where the proposed province is composed of one or more islands is not in conformity with the standard or criteria prescribed by the Local Government Code; hence, it is null and void.

Contrary to the contention of respondents, the extraneous provision cannot be considered as germane to the purpose of the law to develop territorial and political subdivisions into self-reliant communities because, in the first place, it already conflicts with the criteria prescribed by the law in creating a territorial subdivision.

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Navarro vs. Ermita Further, citing Galarosa v. Valencia,26 the Office of the Solicitor General contends that the IRRs issued by the Oversight Committee composed of members of the legislative and executive branches of the government are entitled to great weight and respect, as they are in the nature of executive construction.

The case is not in point. In Galarosa, the issue was whether or not Galarosa could continue to serve as a member of the Sangguniang Bayan beyond June 30, 1992, the date when the term of office of the elective members of theSangguniang Bayan of Sorsogon expired. Galarosa was the incumbent president of the Katipunang Bayan or Association of Barangay Councils (ABC) of the Municipality of Sorsogon, Province of Sorsogon; and was appointed as a member of the Sangguniang Bayan (SB) of Sorsogon pursuant to Executive Order No. 342 in relation to Sec. 146 of Batas Pambansa Blg. 337, the former Local Government Code.

Sec. 494 of the Local Government Code of 199127 states that the duly elected presidents of the liga [ng mga barangay] at the municipal, city and provincial levels, including the component cities and municipalities of Metropolitan Manila, shall serve as ex officio members of the sangguniang bayan, sangguniang panglungsod, and sangguniang panlalawigan, respectively. They shall serve as such only during their term of office as presidents of the liga chapters which, in no case, shall be beyond the term of office of the sanggunian concerned. The section, however, does not fix the specific duration of their term as liga president. The Court held that this was left to the by-laws of the liga pursuant to Art. 211(g) of the Rules and Regulations Implementing the Local Government Code of 1991. Moreover, there was no indication that Secs. 49128 and 494 should be given retroactive effect to adversely affect the presidents of the ABC; hence, the said provisions were to be applied prospectively.

The Court stated that there is no law that prohibits ABC presidents from holding over as members of theSangguniang Bayan. On the contrary, the IRR, prepared and issued by the Oversight Committee upon specific mandate of Sec. 533 of the Local Government Code, expressly recognizes and grants the hold-over authority to the ABC presidents under Art. 210, Rule XXIX.29 The Court upheld the application of the hold-over doctrine in the provisions of the IRR and the issuances of the DILG, whose purpose was to prevent a hiatus in the government pending the time when the successor may be chosen and inducted into office.

The Court held that Sec. 494 of the Local Government Code could not have been intended to allow a gap in the representation of the barangays, through the presidents of the ABC, in the sanggunian. Since the term of office of the punong barangays elected in the March 28, 1989 election and the term of office of the presidents of the ABC had not yet expired, and taking into account the special role conferred upon, and the broader powers and functions vested in the barangays by the Code, it was inferred that the Code never intended to deprive thebarangays of their representation in the sangguniang bayan during the interregnum when the liga had yet to be formally organized with the election of its officers.

Under the circumstances prevailing in Galarosa, the Court considered the relevant provisions in the IRR formulated by the Oversight Committee and the pertinent issuances of the DILG in the nature of executive construction, which were entitled to great weight and respect.

Courts determine the intent of the law from the literal language of the law within the law’s four corners.30 If the language of the law is plain, clear and unambiguous, courts simply apply the law according to its express terms.31If a literal application of the law results in absurdity, impossibility or injustice, then courts may resort to extrinsic aids of statutory construction like the legislative history of the law,32 or may consider the implementing rules and regulations and pertinent executive issuances in the nature of executive construction.

In this case, the requirements for the creation of a province contained in Sec. 461 of the Local Government Code are clear, plain and unambiguous, and its literal application does not result in absurdity or injustice. Hence, the provision in Art. 9(2) of the IRR exempting a proposed province composed of one or more islands from the land-area requirement cannot be considered an executive construction of the criteria prescribed by the Local Government Code. It is an extraneous provision not intended by the Local Government Code and, therefore, is null and void.

Whether R.A. No. 9355 complied with the requirements of Section 461 of the Local Government Code in creating the Province of Dinagat Islands

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Navarro vs. Ermita It is undisputed that R.A. No. 9355 complied with the income requirement specified by the Local Government Code.

What is disputed is its compliance with the land area or population requirement.

R.A. No. 9355 expressly states that the Province of Dinagat Islands "contains an approximate land area of eighty thousand two hundred twelve hectares (80,212 has.) or 802.12 sq. km., more or less, including Hibuson Island and approximately forty-seven (47) islets x x x."33 R.A. No. 9355, therefore, failed to comply with the land area requirement of 2,000 square kilometers.

The Province of Dinagat Islands also failed to comply with the population requirement of not less than 250,000 inhabitants as certified by the NSO. Based on the 2000 Census of Population conducted by the NSO, the population of the Province of Dinagat Islands as of May 1, 2000 was only 106,951.

Although the Provincial Government of Surigao del Norte conducted a special census of population in Dinagat Islands in 2003, which yielded a population count of 371,000, the result was not certified by the NSO as required by the Local Government Code.34 Moreover, respondents failed to prove that with the population count of 371,000, the population of the original unit (mother Province of Surigao del Norte) would not be reduced to less than the minimum requirement prescribed by law at the time of the creation of the new province.35

Respondents contended that the lack of certification by the NSO was cured by the presence of the officials of the NSO during the deliberations on the house bill creating the Province of Dinagat Islands, since they did not object to the result of the special census conducted by the Provincial Government of Surigao del Norte.

The contention of respondents does not persuade.

Although the NSO representative to the Committee on Local Government deliberations dated November 24, 2005 did not object to the

result of the provincial government’s special census, which was conducted with the assistance of an NSO district census coordinator, it was agreed by the participants that the said result was not certified by the NSO, which is the requirement of the Local Government Code. Moreover, the NSO representative, Statistician II Ma. Solita C. Vergara, stated that based on their computation, the population requirement of 250,000 inhabitants would be attained by the Province of Dinagat Islands by the year 2065. The computation was based on the growth rate of the population, excluding migration.

The pertinent portion of the deliberation on House Bill No. 884 creating the Province of Dinagat reads:

THE CHAIRMAN (Hon. Alfredo S. Lim): . . . There is no problem with the land area requirement and to the income requirement. The problem is with the population requirement.

x x x x

Now because of this question, we would like to make it of record the stand and reply of National Statistics Office. Can we hear now from Ms. Solita Vergara?

MS. VERGARA. We only certify population based on the counts proclaimed by the President. And in this case, we only certify the population based on the results of the 2000 census of population and housing.

THE CHAIRMAN. Is that…

MS. VERGARA. Sir, as per Batas Pambansa, BP 72, we only follow kung ano po ‘yong mandated by the law. So, as mandated by the law, we only certify those counts proclaimed official by the President.

THE CHAIRMAN. But the government of Surigao del Norte is headed by Governor Robert Lyndon Ace Barbers and they conducted this census in year 2003 and yours was conducted in year 2000. So, within that time frame, three years, there could be an increase in population or transfer of residents, is that possible?

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Navarro vs. Ermita MS. VERGARA. Yes, sir, but then we only conduct census of population every 10 years and we conduct special census every five years. So, in this case, maybe by next year, we will be conducting the 2006.

THE CHAIRMAN. But next year will be quite a long time, the matter is now being discussed on the table. So, is that the only thing you could say that it’s not authorized by National Statistics Office?

MS. VERGARA. Yes, sir. We have passed a resolution—orders to the provincial offices—to our provincial offices stating that we can provide assistance in the conduct, but then we cannot certify the result of the conduct as official.

THE CHAIRMAN. May we hear from the Honorable Governor Robert Lyndon Ace Barbers, your reply on the statement of the representative from National Statistics Office.

MR. BARBERS. Thank you, Mr. Chairman, good morning.

Yes, your Honor, we have conducted a special census in the year 2003. We were accompanied by one of the employees from the Provincial National Statistics Office. However, we also admit the fact that our special census or the special census we conducted in 2003 was not validated or certified by the National Statistics Office, as provided by law. So, we admit on our part that the certification that I have issued based on the submission of records of each locality or each municipality from Dinagat Island[s] were true and correct based on our level, not on National Statistics Office level.

But with that particular objection of Executive Director Ericta on what we have conducted, I believe, your Honor, it will be, however, moot and academic in terms of the provision under the Local Government Code on the requirements in making one area a province because what we need is a minimum of 20 million, as stated by the Honorable Chairman and, of course, the land area. Now, in terms of the land area, Dinagat Island[s] is exempted because xxx the area is composed of more than one island. In fact, there are about 47 low tide and high tide, less than 40? xxxx

THE CHAIRMAN. Thank you, Governor. xxxx

x x x x

THE CHAIRMAN. Although the claim of the governor is, even if we hold in abeyance this questioned requirement, the other two requirements, as mandated by law, is already achieved – the income and the land area.

MS. VERGARA. We do not question po the results of any locally conducted census, kasi po talagang we provide assistance while they’re conducting their own census. But then, ang requirement po kasi is, basta we will not certify—we will not certify any population count as a result noong kanilang locally conducted census. Eh, sa Local Government Code po, we all know na ang xxx nire-require nila is a certification provided by National Statistics Office. ‘Yon po ‘yong requirement, di ba po?

THE CHAIRMAN. Oo. But a certification, even though not issued, cannot go against actual reality because that’s just a bureaucratic requirement. Ang ibig kong sabihin, ipagpalagay, a couple – isang lalaki, isang babae –nagmamahalan sila. As an offshoot of this undying love, nagkaroon ng mga anak, hindi ba, pero hindi kasal, it’s a live-in situation. Ang tanong ko lang, whether eventually, they got married or not, that love remains. And we cannot deny also the existence of the offspring out of that love, di ba? Kaya…’yon lang. Okay. So, we just skip on this….

MS. VERGARA. Your Honor.

REP. ECLEO (GLENDA). Mr. Chairman.

THE CHAIRMAN. Please, Ms. Vergara.

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Navarro vs. Ermita MS. VERGARA. ‘Yong sinasabi n’yo po, sir, bale we computed the estimated population po ng Dinagat Province for the next years. So, based on our computation, mari-reach po ng Dinagat Province’yong requirement na 250,000 population by the year 2065 pa po based on the growth rates during the period of ….

THE CHAIRMAN. 2065?

MS. VERGARA. 2065 po.

x x x x

THE CHAIRMAN. . . . [T]his is not the center of our argument since, as stated by the governor, kahit ha huwag na munang i-consider itong population requirement, eh, nakalagpas naman sila doon sa income and land area, hindi ba?

Okay. Let’s give the floor to Congresswoman Ecleo.

REP. ECLEO (GLENDA). Thank you, Mr. Chairman.

This is in connection with the special census. Before this was done, I went to the NSO. I talked to Administrator Ericta on the population. Then, I was told that the population, official population of Dinagat is 106,000. So, I told them that I want a special census to be conducted because there are so many houses that were not reached by the government enumerators, and I want to have my own or our own special census with the help of the provincial government. So, that is how it was conducted. Then, they told me that the official population of the proposed province will be on 2010. But at this moment, that is the official population of 106,000, even if our special census, we came up with 371,000 plus.

So, that is it.

THE CHAIRMAN. Thank you, Congresswoman.

Your insights will be reflected in my reply to Senate President Drilon, so that he can also answer the letter of Bishop Cabahug.

MS. VERGARA. Mr. Chairman, may clarifications lang din po ako.

THE CHAIRMAN. Please.

MS. VERGARA. ‘Yon po sa sinasabi naming estimated population, we only based the computation doon sa growth rate lang po talaga, excluding the migration. xxxx

MR. CHAIRMAN. No’ng mga residents.

MS. VERGARA. Yes, sir, natural growth lang po talaga siya.36

To reiterate, when the Dinagat Islands was proclaimed a new province on December 3, 2006, it had an official population of only 106,951 based on the NSO 2000 Census of Population. Less than a year after the proclamation of the new province, the NSO conducted the 2007 Census of Population. The NSO certified that as of August 1, 2007, Dinagat Islands had a total population of only 120,813,37 which was still below the minimum requirement of 250,000 inhabitants.38

In fine, R.A. No. 9355 failed to comply with either the territorial or the population requirement for the creation of the Province of Dinagat Islands.

Page 196: Municipal Corporations

Navarro vs. Ermita The Constitution clearly mandates that the creation of local government units must follow the criteria established in the Local Government Code.39 Any derogation of or deviation from the criteria prescribed in the Local Government Code violates Sec. 10, Art. X of the Constitution.40

Hence, R.A. No. 9355 is unconstitutional for its failure to comply with the criteria for the creation of a province prescribed in Sec. 461 of the Local Government Code.

Whether the creation of the Province of Dinagat Islands is an act of gerrymandering

Petitioners contend that the creation of the Province of Dinagat Islands is an act of gerrymandering on the ground that House Bill No. 884 excluded Siargao Island, with a population of 118,534 inhabitants, from the new province for complete political dominance by Congresswoman Glenda Ecleo-Villaroman. According to petitioners, if Siargao were included in the creation of the new province, the territorial requirement of 2,000 square kilometers would have been easily satisfied and the enlarged area would have a bigger population of 200,305 inhabitants based on the 2000 Census of Population by the NSO. But House Bill No. 884 excluded Siargao Island, because its inclusion would result in uncertain political control. Petitioners aver that, in the past, Congresswoman Glenda Ecleo-Villaroman lost her congressional seat twice to a member of an influential family based in Siargao. Therefore, the only way to complete political dominance is by gerrymandering, to carve a new province in Dinagat Islands where the Philippine Benevolent Members Association (PMBA), represented by the Ecleos, has the numbers.

The argument of petitioners is unsubstantiated.

"Gerrymandering" is a term employed to describe an apportionment of representative districts so contrived as to give an unfair advantage to the party in power.41 Fr. Joaquin G. Bernas, a member of the 1986 Constitutional Commission, defined "gerrymandering" as the formation of one legislative district out of separate territories for the purpose of favoring a candidate or a party.42 The Constitution proscribes gerrymandering, as it mandates each legislative district to comprise, as far as practicable, a contiguous, compact and adjacent territory.43

As stated by the Office of the Solicitor General, the Province of Dinagat Islands consists of one island and about 47 islets closely situated together, without the inclusion of separate territories. It is an unsubstantiated allegation that the province was created to favor Congresswoman Glenda Ecleo-Villaroman.

Allegations of fraud and irregularities during the plebiscite cannot be resolved in a special civil action for certiorari

Lastly, petitioners alleged that R.A. No. 9355 was ratified by a doubtful mandate in a plebiscite held on December 2, 2005, where the "yes votes" were 69,9343, while the "no votes" were 63,502. They contend that the 100% turnout of voters in the precincts of San Jose, Basilisa, Dinagat, Cagdianao and Libjo was contrary to human experience, and that the results were statistically improbable. Petitioners admit that they did not file any electoral protest questioning the results of the plebiscite, because they lacked the means to finance an expensive and protracted election case.

Allegations of fraud and irregularities in the conduct of a plebiscite are factual in nature; hence, they cannot be the subject of this special civil action for certiorari under Rule 65 of the Rules of Court, which is a remedy designed only for the correction of errors of jurisdiction, including grave abuse of discretion amounting to lack or excess of jurisdiction.44 Petitioners should have filed the proper action with the Commission on Elections. However, petitioners admittedly chose not to avail themselves of the correct remedy.

WHEREFORE, the petition is GRANTED. Republic Act No. 9355, otherwise known as [An Act Creating the Province of Dinagat Islands], is hereby declared unconstitutional. The proclamation of the Province of Dinagat Islands and the election of the officials thereof are declared NULL and VOID. The provision in Article 9 (2) of the Rules and Regulations Implementing the Local Government Code of 1991 stating, "The land area requirement shall not apply where the proposed province is composed of one (1) or more islands," is declared NULL and VOID.

No costs.

SO ORDERED.

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Navarro vs. Ermita

Republic of the PhilippinesSUPREME COURT

Baguio City

EN BANC

G.R. No. 180050               April 12, 2011

RODOLFO G. NAVARRO, VICTOR F. BERNAL, and RENE O. MEDINA, Petitioners, vs.EXECUTIVE SECRETARY EDUARDO ERMITA, representing the President of the Philippines; Senate of the Philippines, represented by the SENATE PRESIDENT; House of Representatives, represented by the HOUSE SPEAKER; GOVERNOR ROBERT ACE S. BARBERS, representing the mother province of Surigao del Norte; GOVERNOR GERALDINE ECLEO VILLAROMAN, representing the new Province of Dinagat Islands, Respondents,CONGRESSMAN FRANCISCO T. MATUGAS, HON. SOL T. MATUGAS, HON. ARTURO CARLOS A. EGAY, JR., HON. SIMEON VICENTE G. CASTRENCE, HON. MAMERTO D. GALANIDA, HON. MARGARITO M. LONGOS, and HON. CESAR M. BAGUNDOL, Intervenors.

R E S O L U T I O N

NACHURA, J.:

For consideration of the Court is the Urgent Motion to Recall Entry of Judgment dated October 20, 2010 filed by Movant-Intervenors1 dated and filed on October 29, 2010, praying that the Court (a) recall the entry of judgment, and (b) resolve their motion for reconsideration of the July 20, 2010 Resolution.

To provide a clear perspective of the instant motion, we present hereunder a brief background of the relevant antecedents—

On October 2, 2006, the President of the Republic approved into law Republic Act (R.A.) No. 9355 (An Act Creating the Province of Dinagat Islands).2 On December 3, 2006, the Commission on Elections (COMELEC) conducted the mandatory plebiscite for the ratification of the creation of the province under the Local Government Code (LGC).3 The plebiscite yielded 69,943 affirmative votes and 63,502 negative votes.4 With the approval of the people from both the mother province of Surigao del

Norte and the Province of Dinagat Islands (Dinagat), the President appointed the interim set of provincial officials who took their oath of office on January 26, 2007. Later, during the May 14, 2007 synchronized elections, the Dinagatnons elected their new set of provincial officials who assumed office on July 1, 2007.5

On November 10, 2006, petitioners Rodolfo G. Navarro, Victor F. Bernal and Rene O. Medina, former political leaders of Surigao del Norte, filed before this Court a petition for certiorari and prohibition (G.R. No. 175158) challenging the constitutionality of R.A. No. 9355.6 The Court dismissed the petition on technical grounds. Their motion for reconsideration was also denied.7

Undaunted, petitioners, as taxpayers and residents of the Province of Surigao del Norte, filed another petition for certiorari8 seeking to nullify R.A. No. 9355 for being unconstitutional. They alleged that the creation of Dinagat as a new province, if uncorrected, would perpetuate an illegal act of Congress, and would unjustly deprive the people of Surigao del Norte of a large chunk of the provincial territory, Internal Revenue Allocation (IRA), and rich resources from the area. They pointed out that when the law was passed, Dinagat had a land area of 802.12 square kilometers only and a population of only 106,951, failing to comply with Section 10, Article X of the Constitution and of Section 461 of the LGC, on both counts, viz.—

Constitution, Article X – Local Government

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

LGC, Title IV, Chapter I

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

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

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

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

(b) The territory need not be contiguous if it comprises two (2) or more islands or is separated by a chartered city or cities which do not contribute to the income of the province.

(c) The average annual income shall include the income accruing to the general fund, exclusive of special funds, trust funds, transfers, and non-recurring income. (Emphasis supplied.)

On February 10, 2010, the Court rendered its Decision9 granting the petition.10 The Decision declared R.A. No. 9355 unconstitutional for failure to comply with the requirements on population and land area in the creation of a province under the LGC. Consequently, it declared the proclamation of Dinagat and the election of its officials as null and void. The Decision likewise declared as null and void the provision on Article 9(2) of the Rules and Regulations Implementing the LGC (LGC-IRR), stating that, "[t]he land area requirement shall not apply where the proposed province is composed of one (1) or more islands" for being beyond the ambit of Article 461 of the LGC, inasmuch as such exemption is not expressly provided in the law.11

The Republic, represented by the Office of the Solicitor General, and Dinagat filed their respective motions for reconsideration of the Decision. In its Resolution12 dated May 12, 2010,13 the Court denied the said motions.14

Unperturbed, the Republic and Dinagat both filed their respective motions for leave of court to admit their second motions for reconsideration, accompanied by their second motions for reconsideration. These motions were eventually "noted without action" by this Court in its June 29, 2010 Resolution.15

Meanwhile, the movants-intervenors filed on June 18, 2010 a Motion for Leave to Intervene and to File and to Admit Intervenors’ Motion for Reconsideration of the Resolution dated May 12, 2010. They alleged that the COMELEC issued Resolution No. 8790, relevant to this case, which provides—

RESOLUTION NO. 8790

WHEREAS, Dinagat Islands, consisting of seven (7) municipalities, were previously components of the First Legislative District of the Province of Surigao del Norte. In December 2006 pursuant to Republic Act No. 9355, the Province of Dinagat Island[s] was created and its creation was ratified on 02 December 2006 in the Plebiscite for this purpose;

WHEREAS, as a province, Dinagat Islands was, for purposes of the May 10, 2010 National and Local Elections, allocated one (1) seat for Governor, one (1) seat for Vice Governor, one (1) for congressional seat, and ten (10) Sangguniang Panlalawigan seats pursuant to Resolution No. 8670 dated 16 September 2009;

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Navarro vs. Ermita WHEREAS, the Supreme Court in G.R. No. 180050 entitled "Rodolfo Navarro, et al., vs. Executive Secretary Eduardo Ermita, as representative of the President of the Philippines, et al." rendered a Decision, dated 10 February 2010, declaring Republic Act No. 9355 unconstitutional for failure to comply with the criteria for the creation of a province prescribed in Sec. 461 of the Local Government Code in relation to Sec. 10, Art. X, of the 1987 Constitution;

WHEREAS, respondents intend to file Motion[s] for Reconsideration on the above decision of the Supreme Court;

WHEREAS, the electoral data relative to the: (1) position for Member, House of Representatives representing the lone congressional district of Dinagat Islands, (2) names of the candidates for the aforementioned position, (3) position for Governor, Dinagat Islands, (4) names of the candidates for the said position, (5) position of the Vice Governor, (6) the names of the candidates for the said position, (7) positions for the ten (10) Sangguniang Panlalawigan Members and, [8] all the names of the candidates for Sangguniang Panlalawigan Members, have already been configured into the system and can no longer be revised within the remaining period before the elections on May 10, 2010.

NOW, THEREFORE, with the current system configuration, and depending on whether the Decision of the Supreme Court in Navarro vs. Ermita is reconsidered or not, the Commission RESOLVED, as it hereby RESOLVES, to declare that:

a. If the Decision is reversed, there will be no problem since the current system configuration is in line with the reconsidered Decision, meaning that the Province of Dinagat Islands and the Province of Surigao del Norte remain as two (2) separate provinces;

b. If the Decision becomes final and executory before the election, the Province of Dinagat Islands will revert to its previous status as part of the First Legislative District, Surigao del Norte.

But because of the current system configuration, the ballots for the Province of Dinagat Islands will, for the positions of Member, House of Representatives, Governor, Vice Governor and Members, Sangguniang Panlalawigan, bear only the names of the candidates for the said positions.

Conversely, the ballots for the First Legislative District of Surigao del Norte, will, for the position of Governor, Vice Governor, Member, House of Representatives, First District of Surigao del Norte and Members, Sangguniang Panlalawigan, show only candidates for the said position. Likewise, the whole Province of Surigao del Norte, will, for the position of Governor and Vice Governor, bear only the names of the candidates for the said position[s].

Consequently, the voters of the Province of Dinagat Islands will not be able to vote for the candidates of Members, Sangguniang Panlalawigan, and Member, House [of] Representatives, First Legislative District, Surigao del Norte, and candidates for Governor and Vice Governor for Surigao del Norte. Meanwhile, voters of the First Legislative District of Surigao del Norte, will not be able to vote for Members, Sangguniang Panlalawigan and Member, House of Representatives, Dinagat Islands. Also, the voters of the whole Province of Surigao del Norte, will not be able to vote for the Governor and Vice Governor, Dinagat Islands. Given this situation, the Commission will postpone the elections for Governor, Vice Governor, Member, House of Representatives, First Legislative District, Surigao del Norte, and Members, Sangguniang Panlalawigan, First Legislative District, Surigao del Norte, because the election will result in [a] failure to elect, since, in actuality, there are no candidates for Governor, Vice Governor, Members, Sangguniang Panlalawigan, First Legislative District, and Member, House of Representatives, First Legislative District (with Dinagat Islands) of Surigao del Norte.

c. If the Decision becomes final and executory after the election, the Province of Dinagat Islands will revert to its previous status as part of the First Legislative District of Surigao del Norte. The result of the election will have to be nullified for the same reasons given in Item "b" above. A special election for Governor, Vice Governor, Member, House of Representatives, First Legislative District of Surigao del Norte, and Members, Sangguniang Panlalawigan, First District, Surigao del Norte (with Dinagat Islands) will have to be conducted.

x x x x

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Navarro vs. Ermita SO ORDERED.

They further alleged that, because they are the duly elected officials of Surigao del Norte whose positions will be affected by the nullification of the election results in the event that the May 12, 2010 Resolution is not reversed, they have a legal interest in the instant case and would be directly affected by the declaration of nullity of R.A. No. 9355. Simply put, movants-intervenors’ election to their respective offices would necessarily be annulled since Dinagat Islands will revert to its previous status as part of the First Legislative District of Surigao del Norte and a special election will have to be conducted for governor, vice governor, and House of Representatives member and Sangguniang Panlalawigan member for the First Legislative District of Surigao del Norte. Moreover, as residents of Surigao del Norte and as public servants representing the interests of their constituents, they have a clear and strong interest in the outcome of this case inasmuch as the reversion of Dinagat as part of the First Legislative District of Surigao del Norte will affect the latter province such that: (1) the whole administrative set-up of the province will have to be restructured; (2) the services of many employees will have to be terminated; (3) contracts will have to be invalidated; and (4) projects and other developments will have to be discontinued. In addition, they claim that their rights cannot be adequately pursued and protected in any other proceeding since their rights would be foreclosed if the May 12, 2010 Resolution would attain finality.

In their motion for reconsideration of the May 12, 2010 Resolution, movants-intervenors raised three (3) main arguments to challenge the above Resolution, namely: (1) that the passage of R.A. No. 9355 operates as an act of Congress amending Section 461 of the LGC; (2) that the exemption from territorial contiguity, when the intended province consists of two or more islands, includes the exemption from the application of the minimum land area requirement; and (3) that the Operative Fact Doctrine is applicable in the instant case.

In the Resolution dated July 20, 2010,16 the Court denied the Motion for Leave to Intervene and to File and to Admit Intervenors’ Motion for Reconsideration of the Resolution dated May 12, 2010 on the ground that the allowance or disallowance of a motion to intervene is addressed to the sound discretion of the Court, and that the appropriate time to file the said motion was before and not after the resolution of this case.

On September 7, 2010, movants-intervenors filed a Motion for Reconsideration of the July 20, 2010 Resolution, citing several rulings17 of the Court, allowing intervention as an exception to Section 2, Rule 19 of the Rules of Court that it should be filed at any time before the rendition of judgment. They alleged that, prior to the May 10, 2010 elections, their legal interest in this case was not yet existent. They averred that prior to the May 10, 2010 elections, they were unaware of the proceedings in this case. Even for the sake of argument that they had notice of the pendency of the case, they pointed out that prior to the said elections, Sol T. Matugas was a simple resident of Surigao del Norte, Arturo Carlos A. Egay, Jr. was a member of the Sangguniang Panlalawigan of the Second District of Surigao del Norte, and Mamerto D. Galanida was the Municipal Mayor of Socorro, Surigao del Norte, and that, pursuant to COMELEC Resolution No. 8790, it was only after they were elected as Governor of Surigao del Norte, Vice Governor of Surigao del Norte and Sangguniang Panlalawigan Member of the First District of Surigao del Norte, respectively, that they became possessed with legal interest in this controversy.

On October 5, 2010, the Court issued an order for Entry of Judgment, stating that the decision in this case had become final and executory on May 18, 2010. Hence, the above motion.

At the outset, it must be clarified that this Resolution delves solely on the instant Urgent Motion to Recall Entry of Judgment of movants-intervenors, not on the second motions for reconsideration of the original parties, and neither on Dinagat’s Urgent Omnibus Motion, which our

esteemed colleague, Mr. Justice Arturo D. Brion considers as Dinagat’s third motion for reconsideration. Inasmuch as the motions for leave to admit their respective motions for reconsideration of the May 12, 2010 Resolution and the aforesaid motions for reconsideration were already noted without action by the Court, there is no reason to treat Dinagat’s Urgent Omnibus Motion differently. In relation to this, the Urgent Motion to Recall Entry of Judgment of movants-intervenors could not be considered as a second motion for reconsideration to warrant the application of Section 3, Rule 15 of the Internal Rules of the Supreme Court.18 It should be noted that this motion prays for the recall of the entry of judgment and for the resolution of their motion for reconsideration of the July 20, 2010 Resolution which remained unresolved. The denial of their motion for leave to intervene and to admit motion for reconsideration of the May 12, 2010 Resolution did not rule on the merits of the motion for reconsideration of the May 12, 2010 Resolution,

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Navarro vs. Ermita but only on the timeliness of the intended intervention. Their motion for reconsideration of this denial elaborated on movants-intervenors’ interest in this case which existed only after judgment had been rendered. As such, their motion for intervention and their motion for reconsideration of the May 12, 2010 Resolution merely stand as an initial reconsideration of the said resolution.

With due deference to Mr. Justice Brion, there appears nothing in the records to support the claim that this was a ploy of respondents’ legal tactician to reopen the case despite an entry of judgment. To be sure, it is actually COMELEC Resolution No. 8790 that set this controversy into motion anew. To reiterate, the pertinent portion of the Resolution reads:

c. If the Decision becomes final and executory after the election, the Province of Dinagat Islands will revert to its previous status as part of the First Legislative District of Surigao del Norte. The result of the election will have to be nullified for the same reasons given in Item "b" above. A special election for Governor, Vice Governor, Member, House of Representatives, First Legislative District of Surigao del Norte, and Members, Sangguniang Panlalawigan, First District, Surigao del Norte (with Dinagat Islands) will have to be conducted. (Emphasis supplied.)

Indeed, COMELEC Resolution No. 8790 spawned the peculiar circumstance of proper party interest for movants-intervenors only with the specter of the decision in the main case becoming final and executory. More importantly, if the intervention be not entertained, the movants-intervenors would be left with no other remedy as regards to the impending nullification of their election to their respective positions. Thus, to the Court’s mind, there is an imperative to grant the Urgent Motion to Recall Entry of Judgment by movants-intervenors.

It should be remembered that this case was initiated upon the filing of the petition for certiorari way back on October 30, 2007. At that time, movants-intervenors had nothing at stake in the outcome of this case. While it may be argued that their interest in this case should have commenced upon the issuance of COMELEC Resolution No. 8790, it is obvious that their interest in this case then was more imaginary than real. This is because COMELEC Resolution No. 8790 provides that should the decision in this case attain finality prior to the May 10, 2010 elections, the election of the local government officials stated therein would only have to be postponed. Given such a scenario, movants-intervenors would not have suffered any injury or adverse effect with respect to the reversion of Dinagat as part of Surigao del Norte since they would simply have remained candidates for the respective positions they have vied for and to which they have been elected.

For a party to have locus standi, one must allege "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." Because constitutional cases are often public actions in which the relief sought is likely to affect other persons, a preliminary question frequently arises as to this interest in the constitutional question raised.19

It cannot be denied that movants-intervenors will suffer direct injury in the event their Urgent Motion to Recall Entry of Judgment dated October 29, 2010 is denied and their Motion for Leave to Intervene and to File and to Admit Intervenors’ Motion for Reconsideration of the Resolution dated May 12, 2010 is denied with finality. Indeed, they have sufficiently shown that they have a personal and substantial interest in the case, such that if the May 12, 2010 Resolution be not reconsidered, their election to their respective positions during the May 10, 2010 polls and its concomitant effects would all be nullified and be put to naught. Given their unique circumstances, movants-intervenors should not be left without any remedy before this Court simply because their interest in this case became manifest only after the case had already been decided. The consequences of such a decision would definitely work to their disadvantage, nay, to their utmost prejudice, without even them being parties to the dispute. Such decision would also violate their right to due process, a right that cries out for protection. Thus, it is imperative that the movants-intervenors be heard on the merits of their cause. We are not only a court of law, but also of justice and equity, such that our position and the dire repercussions of this controversy should be weighed on the scales of justice, rather than dismissed on account of mootness.

The "moot and academic" principle is not a magical formula that can automatically dissuade the courts from resolving a case. Courts will decide cases, otherwise moot and academic, if: (1) there is a grave violation of the Constitution; (2) there is an exceptional character of the situation and the paramount public interest is involved; (3) the constitutional

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Navarro vs. Ermita issue raised requires formation of controlling principles to guide the bench, the bar, and the public; and (4) the case is capable of repetition yet evading review.20 The second exception attends this case.

This Court had taken a liberal attitude in the case of David v. Macapagal-Arroyo,21 where technicalities of procedure on locus standi were brushed aside, because the constitutional issues raised were of paramount public interest or of transcendental importance deserving the attention of the Court. Along parallel lines, the motion for intervention should be given due course since movants-intervenors have shown their substantial legal interest in the outcome of this case, even much more than petitioners themselves, and because of the novelty, gravity, and weight of the issues involved.

Undeniably, the motion for intervention and the motion for reconsideration of the May 12, 2010 Resolution of movants-intervenors is akin to the right to appeal the judgment of a case, which, though merely a statutory right that must comply with the requirements of the rules, is an essential part of our judicial system, such that courts should proceed with caution not to deprive a party of the right to question the judgment and its effects, and ensure that every party-litigant, including those who would be directly affected, would have the amplest opportunity for the proper and just disposition of their cause, freed from the constraints of technicalities.22

Verily, the Court had, on several occasions, sanctioned the recall entries of judgment in light of attendant extraordinary circumstances.23 The power to suspend or even disregard rules of procedure can be so pervasive and compelling as to alter even that which this Court itself had already declared final.24 In this case, the compelling concern is not only to afford the movants-intervenors the right to be heard since they would be adversely affected by the judgment in this case despite not being original parties thereto, but also to arrive at the correct interpretation of the provisions of the LGC with respect to the creation of local government units. In this manner, the thrust of the Constitution with respect to local autonomy and of the LGC with respect to decentralization and the attainment of national goals, as hereafter elucidated, will effectively be realized.

On the merits of the motion for intervention, after taking a long and intent look, the Court finds that the first and second arguments raised by movants-intervenors deserve affirmative consideration.

It must be borne in mind that the central policy considerations in the creation of local government units are economic viability, efficient administration, and capability to deliver basic services to their constituents. The criteria prescribed by the LGC, i.e., income, population and land area, are all designed to accomplish these results. In this light, Congress, in its collective wisdom, has debated on the relative weight of each of these three criteria, placing emphasis on which of them should enjoy preferential consideration.

Without doubt, the primordial criterion in the creation of local government units, particularly of a province, is economic viability. This is the clear intent of the framers of the LGC. In this connection, the following excerpts from congressional debates are quoted hereunder—

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

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

x x x x

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

Now, we’re saying that maybe Fourteen Million Pesos is a floor area where it could pay for overhead and provide a minimum of basic services to the population. Over and above that, the provincial officials should be able to trigger off economic development which will attract immigration, which will attract new investments from the private sector. This is

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Navarro vs. Ermita now the concern of the local officials. But if we are going to tie the hands of the proponents, simply by telling them, "Sorry, you are now at 150 thousand or 200 thousand," you will never be able to become a province because nobody wants to go to your place. Why? Because you never have any reason for economic viability.

x x x x

CHAIRMAN PIMENTEL. Okay, what about land area?

HON. LUMAUIG. 1,500 square kilometers

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

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

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

CHAIRMAN PIMENTEL. Right.

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

CHAIRMAN PIMENTEL. Okay.

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

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

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

HON. LAGUDA. That’s why we’re going into the minimum income level. As we said, if we go on a minimum income level, then we say, "this is the trigger point at which this administration can take place."25

Also worthy of note are the requisites in the creation of a barangay, a municipality, a city, and a province as provided both in the LGC and the LGC-IRR, viz.—

For a Barangay:

LGC: SEC. 386. Requisites for Creation. – (a) A barangay may be created out of a contiguous territory which has a population of at least two thousand (2,000) inhabitants as certified by the National Statistics Office except in cities and municipalities within Metro Manila and other metropolitan political subdivisions or in highly urbanized cities where such territory shall have a certified population of at least five thousand (5,000) inhabitants: Provided, That the creation thereof shall not reduce the population of the original barangay or barangays to less than the minimum requirement prescribed herein.

To enhance the delivery of basic services in the indigenous cultural communities, barangays may be created in such communities by an Act of Congress, notwithstanding the above requirement.

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Navarro vs. Ermita (b) The territorial jurisdiction of the new barangay shall be properly identified by metes and bounds or by more or less permanent natural boundaries. The territory need not be contiguous if it comprises two (2) or more islands.

(c) The governor or city mayor may prepare a consolidation plan for barangays, based on the criteria prescribed in this Section, within his territorial jurisdiction. The plan shall be submitted to the sangguniang panlalawigan or sangguniang panlungsod concerned for appropriate action. In the case of municipalities within the Metropolitan Manila area and other metropolitan political subdivisions, the barangay consolidation plan can be prepared and approved by the sangguniang bayan concerned.

LGC-IRR: ARTICLE 14. Barangays. – (a) Creation of barangays by the sangguniang panlalawigan shall require prior recommendation of the sangguniang bayan.

(b) New barangays in the municipalities within MMA shall be created only by Act of Congress, subject to the limitations and requirements prescribed in this Article.

(c) Notwithstanding the population requirement, a barangay may be created in the indigenous cultural communities by Act of Congress upon recommendation of the LGU or LGUs where the cultural community is located.

(d) A barangay shall not be created unless the following requisites are present:

(1) Population – which shall not be less than two thousand (2,000) inhabitants, except in municipalities and cities within MMA and other metropolitan political subdivisions as may be created by law, or in highly-urbanized cities where such territory shall have a population of at least five thousand (5,000) inhabitants, as certified by the NSO. The creation of a barangay shall not reduce the population of the original barangay or barangays to less than the prescribed minimum/

(2) Land Area – which must be contiguous, unless comprised by two (2) or more islands. The territorial jurisdiction of a barangay sought to be created shall be properly identified by metes and bounds or by more or less permanent natural boundaries.

Municipality:

LGC: SEC. 442. Requisites for Creation. – (a) A municipality may be created if it has an average annual income, as certified by the provincial treasurer, or at least Two million five hundred thousand pesos (P2,500,000.00) for the last two (2) consecutive years based on the 1991 constant prices; a population of at least twenty-five thousand (25,000) inhabitants as certified by the National Statistics Office; and a contiguous territory of at least fifty (50) square kilometers as certified by the Lands

Management Bureau: Provided, That the creation thereof shall not reduce the land area, population or income of the original municipality or municipalities at the time of said creation to less than the minimum requirements prescribed herein.

(b) The territorial jurisdiction of a newly-created municipality shall be properly identified by metes and bounds. The requirement on land area shall not apply where the municipality proposed to be created is composed of one (1) or more islands. The territory need not be contiguous if it comprises two (2) or more islands.

(c) The average annual income shall include the income accruing to the general fund of the municipality concerned, exclusive of special funds, transfers and non-recurring income.

(d) Municipalities existing as of the date of effectivity of this Code shall continue to exist and operate as such. Existing municipal districts organized pursuant to presidential issuances or executive orders and which have their respective set of elective municipal officials holding office at the time of the effectivity of this Code shall henceforth be considered regular municipalities.

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Navarro vs. Ermita LGC-IRR: ARTICLE 13. Municipalities. – (a) Requisites for Creation – A municipality shall not be created unless the following requisites are present:

(i) Income – An average annual income of not less than Two Million Five Hundred Thousand Pesos (P2,500,000.00), for the immediately preceding two (2) consecutive years based on 1991 constant prices, as certified by the provincial treasurer. The average annual income shall include the income accruing to the general fund, exclusive of special funds, special accounts, transfers, and nonrecurring income;

(ii) Population – which shall not be less than twenty five thousand (25,000) inhabitants, as certified by NSO; and

(iii) Land area – which must be contiguous with an area of at least fifty (50) square kilometers, as certified by LMB. The territory need not be contiguous if it comprises two (2) or more islands. The requirement on land area shall not apply where the proposed municipality is composed of one (1) or more islands. The territorial jurisdiction of a municipality sought to be created shall be properly identified by metes and bounds.

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

City:

LGC: SEC. 450. Requisites for Creation. – (a) A municipality or a cluster of barangays may be converted into a component city if it has an average annual income, as certified by the Department of Finance, of at least Twenty million pesos (P20,000,000.00) for the last two (2) consecutive years based on 1991 constant prices, and if it has either of the following requisities:

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

(ii) a population of not less than one hundred fifty thousand (150,000) inhabitants, as certified by the National Statistics Office: Provided, That, the creation thereof shall not reduce the land area, population, and income of the original unit or units at the time of said creation to less than the minimum requirements prescribed herein.

(b) The territorial jurisdiction of a newly-created city shall be properly identified by metes and bounds. The requirement on land area shall not apply where the city proposed to be created is composed of one (1) or more islands. The territory need not be contiguous if it comprises two (2) or more islands.

(c) The average annual income shall include the income accruing to the general fund, exclusive of special funds, transfers, and non-recurring income.

LGC-IRR: ARTICLE 11. Cities. – (a) Requisites for creation – A city shall not be created unless the following requisites on income and either population or land area are present:

(1) Income – An average annual income of not less than Twenty Million Pesos (P20,000,000.00), for the immediately preceding two (2) consecutive years based on 1991 constant prices, as certified by DOF. The average annual income shall include the income accruing to the general fund, exclusive of special funds, special accounts, transfers, and nonrecurring income; and

(2) Population or land area – Population which shall not be less than one hundred fifty thousand (150,000) inhabitants, as certified by the NSO; or land area which must be contiguous with an area of at least one hundred (100) square kilometers, as certified by LMB. The territory need not be contiguous if it comprises two (2) or more islands or is separated by a chartered city or cities which do not contribute to the income of the province. The land area requirement shall not apply where the proposed city is composed of one (1) or more

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Navarro vs. Ermita islands. The territorial jurisdiction of a city sought to be created shall be properly identified by metes and bounds.

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

Provinces:

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

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

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

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

(b) The territory need not be contiguous if it comprises two (2) or more islands or is separated by a chartered city or cities which do not contribute to the income of the province.

(c) The average annual income shall include the income accruing to the general fund, exclusive of special funds, trust funds, transfers, and non-recurring income.

LGC-IRR: ARTICLE 9. Provinces. – (a) Requisites for creation – A province shall not be created unless the following requisites on income and either population or land area are present:

(1) Income – An average annual income of not less than Twenty Million pesos (P20,000,000.00) for the immediately preceding two (2) consecutive years based on 1991 constant prices, as certified by DOF. The average annual income shall include the income accruing to the general fund, exclusive of special funds, special accounts, transfers, and non-recurring income; and

(2) Population or land area – Population which shall not be less than two hundred fifty thousand (250,000) inhabitants, as certified by NSO; or land area which must be contiguous with an area of at least two thousand (2,000) square kilometers, as certified by LMB. The territory need not be contiguous if it comprises two (2) or more islands or is separated by a chartered city or cities which do not contribute to the income of the province. The land area requirement shall not apply where the proposed province is composed of one (1) or more islands. The territorial jurisdiction of a province sought to be created shall be properly identified by metes and bounds.

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

It bears scrupulous notice that from the above cited provisions, with respect to the creation of barangays, land area is not a requisite indicator of viability. However, with respect to the creation of municipalities, component cities, and provinces, the three (3) indicators of viability and projected capacity to provide services, i.e., income, population, and land area, are provided for.

But it must be pointed out that when the local government unit to be created consists of one (1) or more islands, it is exempt from the land area requirement as expressly provided in Section 442 and Section 450 of the LGC if the local

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Navarro vs. Ermita government unit to be created is a municipality or a component city, respectively. This exemption is absent in the enumeration of the requisites for the creation of a province under Section 461 of the LGC, although it is expressly stated under Article 9(2) of the LGC-IRR.

There appears neither rhyme nor reason why this exemption should apply to cities and municipalities, but not to provinces. In fact, considering the physical configuration of the Philippine archipelago, there is a greater likelihood that islands or group of islands would form part of the land area of a newly-created province than in most cities or municipalities. It is, therefore, logical to infer that the genuine legislative policy decision was expressed in Section 442 (for municipalities) and Section 450 (for component cities) of the LGC, but was inadvertently omitted in Section 461 (for provinces). Thus, when the exemption was expressly provided in Article 9(2) of the LGC-IRR, the inclusion was intended to correct the congressional oversight in Section 461 of the LGC – and to reflect the true legislative intent. It would, then, be in order for the Court to uphold the validity of Article 9(2) of the LGC-IRR.

This interpretation finds merit when we consider the basic policy considerations underpinning the principle of local autonomy.

Section 2 of the LGC, of which paragraph (a) is pertinent to this case, provides—

Sec. 2. Declaration of Policy. – (a) It is hereby declared the policy of the State that the territorial and political subdivisions of the State shall enjoy genuine and meaningful local autonomy to enable them to attain their fullest development as self-reliant communities and make them more effective partners in the attainment of national goals. Toward this end, the State shall provide for a more responsive and accountable local government structure instituted through a system of decentralization whereby local government units shall be given more powers, authority, responsibilities, and resources. The process of decentralization shall proceed from the national government to the local government units.

This declaration of policy is echoed in Article 3(a) of the LGC-IRR26 and in the Whereas clauses of Administrative Order No. 270,27 which read—

WHEREAS, Section 25, Article II of the Constitution mandates that the State shall ensure the autonomy of local governments;

WHEREAS, pursuant to this declared policy, Republic Act No. 7160, otherwise known as the Local Government Code of 1991, affirms, among others, that the territorial and political subdivisions of the State shall enjoy genuine and meaningful local autonomy to enable them to attain their fullest development as self-reliant communities and make them more effective partners in the attainment of national goals;

WHEREAS, Section 533 of the Local Government Code of 1991 requires the President to convene an Oversight Committee for the purpose of formulating and issuing the appropriate rules and regulations necessary for the efficient and effective implementation of all the provisions of the said Code; and

WHEREAS, the Oversight Committee, after due deliberations and consultations with all the concerned sectors of society and consideration of the operative principles of local autonomy as provided in the Local Government Code of 1991, has completed the formulation of the implementing rules and regulations; x x x

Consistent with the declared policy to provide local government units genuine and meaningful local autonomy, contiguity and minimum land area requirements for prospective local government units should be liberally construed in order to achieve the desired results. The strict interpretation adopted by the February 10, 2010 Decision could prove to be counter-productive, if not outright absurd, awkward, and impractical. Picture an intended province that consists of several municipalities and component cities which, in themselves, also consist of islands. The component cities and municipalities which consist of islands are exempt from the minimum land area requirement, pursuant to Sections 450 and 442, respectively, of the LGC. Yet, the province would be made to comply with the minimum land area criterion of 2,000 square kilometers, even if it consists of several islands. This would mean that Congress has opted to assign a distinctive preference to create a province with contiguous land area over one composed of islands — and negate the greater imperative of development of self-reliant communities, rural progress, and the delivery of basic services to the constituency. This preferential option would prove more difficult and burdensome if the 2,000-square-kilometer territory

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Navarro vs. Ermita of a province is scattered because the islands are separated by bodies of water, as compared to one with a contiguous land mass.

Moreover, such a very restrictive construction could trench on the equal protection clause, as it actually defeats the purpose of local autonomy and decentralization as enshrined in the Constitution. Hence, the land area requirement should be read together with territorial contiguity.

Another look at the transcript of the deliberations of Congress should prove enlightening:

CHAIRMAN ALFELOR. Can we give time to Congressman Chiongbian,28 with respect to his…

CHAIRMAN LINA. Okay.

HON. CHIONGBIAN. At the outset, Chairman Lina, we would like to apprise the distinguished Senator about the action taken by the House, on House Bill No. 7166. This was passed about two years ago and has been pending in the Senate for consideration. This is a bill that I am not the only one involved, including our distinguished Chairman here. But then we did want to sponsor the bill, being the Chairman then of the Local Government.

So, I took the cudgels for the rest of the Congressmen, who were more or less interested in the creation of the new provinces, because of the vastness of the areas that were involved.

At any rate, this bill was passed by the House unanimously without any objection. And as I have said a while ago, that this has been pending in the Senate for the last two years. And Sen. Pimentel himself was just in South Cotabato and he delivered a speech that he will support this bill, and he says, that he will incorporate this in the Local Government Code, which I have in writing from him. I showed you the letter that he wrote, and naturally, we in the House got hold of the Senate version. It becomes an impossibility for the whole Philippines to create a new province, and that is quite the concern of the respective Congressmen.

Now, insofar as the constitutional provision is concerned, there is nothing to stop the mother province from voting against the bill, if a province is going to be created.

So, we are talking about devolution of powers here. Why is the province not willing to create another province, when it can be justified. Even Speaker Mitra says, what will happen to Palawan? We won’t have one million people there, and if you look at Palawan, there will be about three or four provinces that will comprise that island. So, the development will be hampered.

Now, I would like to read into the record the letter of Sen. Pimentel, dated November 2, 1989. This was practically about a year after 7166 was approved by the House, House Bill 7166.

On November 2, 1989, the Senator wrote me:

"Dear Congressman Chiongbian:

We are in receipt of your letter of 17 October. Please be informed that your House No. 7166 was incorporated in the proposed Local Government Code, Senate Bill No. 155, which is pending for second reading.

Thank you and warm regards.

Very truly yours,"

That is the very context of the letter of the Senator, and we are quite surprised that the Senate has adopted another position.

So, we would like – because this is a unanimously approved bill in the House, that’s the only bill that is involving the present Local Government Code that we are practically considering; and this will be a slap on the House, if we do not

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Navarro vs. Ermita approve it, as approved by the lower House. This can be [an] irritant in the approval of the Conference Committee Report. And I just want to manifest that insofar as the creation of the province, not only in my province, but the other provinces. That the mother province will participate in the plebiscite, they can defeat the province, let’s say, on the basis of the result, the province cannot be created if they lose in the plebiscite, and I don’t see why, we should put this stringent conditions to the private people of the devolution that they are seeking.

So, Mr. Senator, I think we should consider the situation seriously, because, this is an approved version of the House, and I will not be the one to raise up and question the Conference Committee Report, but the rest of the House that are interested in this bill. And they have been approaching the Speaker about this. So, the Speaker reminded me to make sure that it takes the cudgel of the House approved version.

So, that’s all what I can say, Mr. Senator, and I don’t believe that it is not, because it’s the wish of the House, but because the mother province will participate anyhow, you vote them down; and that is provided for in the Constitution. As a matter of fact, I have seen the amendment with regards to the creation of the city to be urbanized, subject to the plebiscite. And why should we not allow that to happen in the provinces! In other words, we don’t want the people who wants to create a new province, as if they are left in the devolution of powers, when they feel that they are far away from civilization.

Now, I am not talking about other provinces, because I am unaware, not aware of their situation. But the province of South Cotabato has a very unique geographical territorial conglomerations. One side is in the other side of the Bay, of Sarangani Bay. The capital town is in the North; while these other municipalities are in the East and in the West. And if they have to travel from the last town in the eastern part of the province, it is about one hundred forty kilometers to the capital town. And from the West side, it is the same distance. And from the North side, it is about one hundred kilometers. So that is the problem there. And besides, they have enough resources and I feel that, not because I am interested in the province, I am after their welfare in the future. Who am I to dictate on those people? I have no interest but then I am looking at the future development of these areas.

As a matter of fact, if I am in politics, it’s incidental; I do not need to be there, but I can foresee what the creation of a new province will bring to these people. It will bring them prosperity; it will bring them more income, and it will encourage even foreign investors. Like the PAP now, they are concentrating in South Cotabato, especially in the City of

General Santos and the neighboring municipalities, and they are quite interested and even the AID people are asking me, "What is holding the creation of a new province when practically you need it?" It’s not 20 or 30 kilometers from the capital town; it’s about 140 kilometers. And imagine those people have to travel that far and our road is not like Metropolitan Manila. That is as far as from here to Tarlac. And there are municipalities there that are just one municipality is bigger than the province of La Union. They have the income. Of course, they don’t have the population because that’s a part of the land of promise and people from Luzon are migrating everyday because they feel that there are more opportunities here.

So, by creating the new provinces, not only in my case, in the other cases, it will enhance the development of the Philippines, not because I am interested in my province. Well, as far as I am concerned, you know, I am in the twilight years of my life to serve and I would like to serve my people well. No personal or political interest here. I hope the distinguished Chairman of the Committee will appreciate the House Bill 7166, which the House has already approved because we don’t want them to throw the Conference Committee Report after we have worked that the house Bill has been, you know, drawn over board and not even considered by the Senate. And on top of that, we are considering a bill that has not yet been passed. So I hope the Senator will take that into account.

Thank you for giving me this time to explain.

CHAIRMAN LINA. Thank you very much, Congressman James. We will look into the legislative history of the Senate version on this matter of creation of provinces. I am sure there was an amendment. As I said, I’ll look into it. Maybe the House version was incorporated in toto, but maybe during the discussion, their amendments were introduced and, therefore, Senator Pimentel could not hold on to the original version and as a result new criteria were introduced.

But because of the manifestation that you just made, we will definitely, when we reach a book, Title IV, on the matter of provinces, we will look at it sympathetically from your end so that the objective that you want [to] achieve can be

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Navarro vs. Ermita realized. So we will look at it with sympathy. We will review our position on the matter, how we arrived at the Senate version and we will adopt an open mind definitely when we come into it.

CHAIRMAN ALFELOR. Kanino ‘yan?

CHAIRMAN LINA. Book III.

CHAIRMAN ALFELOR. Title?

CHAIRMAN LINA. Title IV.

CHAIRMAN ALFELOR. I have been pondering on the case of James, especially on economic stimulation of a certain area. Like our case, because I put myself on our province, our province is quite very big. It’s composed of four (4) congressional districts and I feel it should be five now. But during the Batasan time, four of us talked and conversed proposing to divide the province into two.

There are areas then, when since time immemorial, very few governors ever tread on those areas. That is, maybe you’re acquainted with the Bondoc Peninsula of Quezon, fronting that is Ragay Gulf. From Ragay there is a long stretch of coastal area. From Albay going to Ragay, very few governors ever tread [there] before, even today. That area now is infested with NPA. That is the area of Congressman Andaya.

Now, we thought that in order to stimulate growth, maybe provincial aid can be extended to these areas. With a big or a large area of a province, a certain administrator or provincial governor definitely will have no sufficient time. For me, if we really would like to stimulate growth, I believe that an area where there is physical or geographical impossibilities, where administrators can penetrate, I think we have to create certain provisions in the law where maybe we can treat it with special considerations.

Now, we went over the graduate scale of the Philipppine Local Government Data as far as provinces are concerned. It is very surprising that there are provinces here which only composed of six municipalities, eight municipalities, seven municipalities. Like in Cagayan, Tuguegarao, there are six municipalities. Ah, excuse me, Batanes.

CHAIRMAN LINA. Will you look at the case of --- how many municipalities are there in Batanes province?

CHAIRMAN ALFELOR. Batanes is only six.

CHAIRMAN LINA. Six town. Siquijor?

CHAIRMAN ALFELOR. Siquijor. It is region?

CHAIRMAN LINA. Seven.

CHAIRMAN ALFELOR.L Seven. Anim.

CHAIRMAN LINA. Six also.

CHAIRMAN ALFELOR. Six also.

CHAIRMAN LINA. It seems with a minimum number of towns?

CHAIRMAN ALFELOR. The population of Siquijor is only 70 thousand, not even one congressional district. But tumaas in 1982. Camiguin, that is Region 9. Wala dito. Nagtataka nga ako ngayon.

CHAIRMAN LINA. Camiguin, Camiguin.

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Navarro vs. Ermita CHAIRMAN ALFELOR. That is region? Camiguin has five municipalities, with a population of 63 thousand. But we do not hold it against the province because maybe that’s one stimulant where growth can grow, can start. The land area for Camiguin is only 229 square kilometers. So if we hard fast on requirements of, we set a minimum for every province, palagay ko we just leave it to legislation, eh. Anyway, the Constitution is very clear that in case we would like to divide, we submit it to a plebiscite. Pabayaan natin ang tao. Kung maglalagay tayo ng set ng minimum, tila yata mahihirapan tayo, eh. Because what is really the thrust of the Local Government Code? Growth. To devolve powers in order for the community to have its own idea how they will stimulate growth in their respective areas.

So, in every geographical condition, mayroon sariling id[i]osyncracies eh, we cannot make a generalization.

CHAIRMAN LINA. Will the creation of a province, carved out of the existing province because of some geographical id[i]osyncracies, as you called it, stimulate the economic growth in the area or will substantial aid coming from the national government to a particular area, say, to a municipality, achieve the same purpose?

CHAIRMAN ALFELOR. Ano tayo dito sa budget. All right, here is a province. Usually, tinitingnan lang yun, provision eh, hindi na yung composition eh. You are entitled to, say, 20% of the area.

There’s a province of Camarines Sur which have the same share with that of Camiguin and Siquijor, but Camiguin is composed only of five municipalities; in Siquijor, it’s composed of six, but the share of Siquijor is the same share with that of the province of Camarines Sur, having a bigger area, very much bigger.

That is the budget in process.

CHAIRMAN LINA. Well, as I said, we are going to consider this very seriously and even with sympathy because of the explanation given and we will study this very carefully.29

The matters raised during the said Bicameral Conference Committee meeting clearly show the manifest intention of Congress to promote development in the previously underdeveloped and uninhabited land areas by allowing them to directly share in the allocation of funds under the national budget. It should be remembered that, under Sections 284 and 285

of the LGC, the IRA is given back to local governments, and the sharing is based on land area, population, and local revenue.30

Elementary is the principle that, if the literal application of the law results in absurdity, impossibility, or injustice, then courts may resort to extrinsic aids of statutory construction, such as the legislative history of the law,31 or may consider the implementing rules and regulations and pertinent executive issuances in the nature of executive and/or legislative construction. Pursuant to this principle, Article 9(2) of the LGC-IRR should be deemed incorporated in the basic law, the LGC.

It is well to remember that the LGC-IRR was formulated by the Oversight Committee consisting of members of both the Executive and Legislative departments, pursuant to Section 53332 of the LGC. As Section 533 provides, the Oversight Committee shall formulate and issue the appropriate rules and regulations necessary for the efficient and effective implementation of any and all provisions of this Code, thereby ensuring compliance with the principles of local autonomy as defined under the Constitution. It was also mandated by the Constitution that a local government code shall be enacted by Congress, to wit—

Section 3. The Congress shall enact a local government code which shall provide for a more responsive and accountable local government structure instituted through a system of decentralization with effective mechanisms of recall, initiative, and referendum, allocate among the different local government units their powers, responsibilities, and resources, and provide for the qualifications, election, appointment and removal, term, salaries, powers and functions and duties of local officials, and all other matters relating to the organization and operation of the local units. (Emphasis supplied.)

These State policies are the very reason for the enactment of the LGC, with the view to attain decentralization and countryside development. Congress saw that the old LGC, Batas Pambansa Bilang 337, had to be replaced with a new

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Navarro vs. Ermita law, now the LGC of 1991, which is more dynamic and cognizant of the needs of the Philippines as an archipelagic country. This accounts for the exemption from the land area requirement of local government units composed of one or more islands, as expressly stated under Sections 442 and 450 of the LGC, with respect to the creation of municipalities and cities, but inadvertently omitted from Section 461 with respect to the creation of provinces. Hence, the void or missing detail was filled in by the Oversight Committee in the LGC-IRR.

With three (3) members each from both the Senate and the House of Representatives, particularly the chairpersons of their respective Committees on Local Government, it cannot be gainsaid that the inclusion by the Oversight Committee of the exemption from the land area requirement with respect to the creation of provinces consisting of one (1) or more islands was intended by Congress, but unfortunately not expressly stated in Section 461 of the LGC, and this intent was echoed through an express provision in the LGC-IRR. To be sure, the Oversight Committee did not just arbitrarily and whimsically insert such an exemption in Article 9(2) of the LGC-IRR. The Oversight Committee evidently conducted due deliberation and consultations with all the concerned sectors of society and considered the operative principles of local autonomy as provided in the LGC when the IRR was formulated.33 Undoubtedly, this amounts not only to an executive construction, entitled to great weight and respect from this Court,34 but to legislative construction as well, especially with the inclusion of representatives from the four leagues of local government units as members of the Oversight Committee.

With the formulation of the LGC-IRR, which amounted to both executive and legislative construction of the LGC, the many details to implement the LGC had already been put in place, which Congress understood to be impractical and not too urgent to immediately translate into direct amendments to the LGC. But Congress, recognizing the capacity and viability of Dinagat to become a full-fledged province, enacted R.A. No. 9355, following the exemption from the land area requirement, which, with respect to the creation of provinces, can only be found as an express provision in the LGC-IRR. In effect, pursuant to its plenary legislative powers, Congress breathed flesh and blood into that exemption in Article 9(2) of the LGC-IRR and transformed it into law when it enacted R.A. No. 9355 creating the Island Province of Dinagat.

Further, the bill that eventually became R.A. No. 9355 was filed and favorably voted upon in both Chambers of Congress. Such acts of both Chambers of Congress definitively show the clear legislative intent to incorporate into the LGC that exemption from the land area requirement, with respect to the creation of a province when it consists of one or more islands, as expressly provided only in the LGC-IRR. Thereby, and by necessity, the LGC was amended by way of the enactment of R.A. No. 9355.

What is more, the land area, while considered as an indicator of viability of a local government unit, is not conclusive in showing that Dinagat cannot become a province, taking into account its average annual income ofP82,696,433.23 at the time of its creation, as certified by the Bureau of Local Government Finance, which is four times more than the minimum requirement of P20,000,000.00 for the creation of a province. The delivery of basic services to its constituents has been proven possible and sustainable. Rather than looking at the results of the plebiscite and the May 10, 2010 elections as mere fait accompli circumstances which cannot operate in favor of Dinagat’s existence as a province, they must be seen from the perspective that Dinagat is ready and capable of becoming a province. This Court should not be instrumental in stunting such capacity. As we have held in League of Cities of the Philippines v. Commission on Elections35 —

Ratio legis est anima. The spirit rather than the letter of the law. A statute must be read according to its spirit or intent, for what is within the spirit is within the statute although it is not within its letter, and that which is within the letter but not within the spirit is not within the statute. Put a bit differently, that which is within the intent of the lawmaker is as much within the statute as if within the letter, and that which is within the letter of the statute is not within the statute unless within the intent of the lawmakers. Withal, courts ought not to interpret and should not accept an interpretation that would defeat the intent of the law and its legislators.

So as it is exhorted to pass on a challenge against the validity of an act of Congress, a co-equal branch of government, it behooves the Court to have at once one principle in mind: the presumption of constitutionality of statutes. This presumption finds its roots in the tri-partite system of government and the corollary separation of powers, which enjoins the three great departments of the government to accord a becoming courtesy for each other’s acts, and not to interfere inordinately with the exercise by one of its official functions. Towards this end, courts ought to reject assaults against the validity of statutes, barring of course their clear unconstitutionality. To doubt is to sustain, the theory in context

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Navarro vs. Ermita being that the law is the product of earnest studies by Congress to ensure that no constitutional prescription or concept is infringed. Consequently, before a law duly challenged is nullified, an unequivocal breach of, or a clear conflict with, the Constitution, not merely a doubtful or argumentative one, must be demonstrated in such a manner as to leave no doubt in the mind of the Court.

WHEREFORE, the Court resolved to:

1. GRANT the Urgent Motion to Recall Entry of Judgment by movants-intervenors, dated and filed on October 29, 2010;

2. RECONSIDER and SET ASIDE the July 20, 2010 Resolution, and GRANT the Motion for Leave to Intervene and to File and to Admit Intervenors’ Motion for Reconsideration of the Resolution dated July 20, 2010;

3. GRANT the Intervenors’ Motion for Reconsideration of the Resolution dated May 12, 2010. The May 12, 2010 Resolution is RECONSIDERED and SET ASIDE. The provision in Article 9(2) of the Rules and Regulations Implementing the Local Government Code of 1991 stating, "The land area requirement shall not apply where the proposed province is composed of one (1) or more islands," is declared VALID. Accordingly, Republic Act No. 9355 (An Act Creating the Province of Dinagat Islands) is declared as VALID and CONSTITUTIONAL, and the proclamation of the Province of Dinagat Islands and the election of the officials thereof are declared VALID; and

4. The petition is DISMISSED.

No pronouncement as to costs.

SO ORDERED.

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Miranda vs. SB

EN BANC  

JOSE C. MIRANDA,                                G.R. NO. 154098                             Petitioner,

Present: 

   DAVIDE, JR., C.J.,- versus -                                              PUNO,

   PANGANIBAN,                                                             QUISUMBING,

                                                                      YNARES-SANTIAGO,HON. SANDIGANBAYAN,                         SANDOVAL-GUTIERREZ,OFFICE OF THE OMBUDSMAN,                      CARPIO,SEC. JOSE D. LINA, JR., in his                 AUSTRIA-MARTINEZ,capacity as Secretary of the DILG,            *CORONA,and FAUSTINO DY, JR. in his                    CARPIO MORALES,capacity as Governor of the                         CALLEJO, SR.,Province of Isabela,                                      AZCUNA,                                     Respondents.                    TINGA,                                                                      CHICO-NAZARIO, and                                                                      GARCIA, JJ.                                                                                                                                          Promulgated:                                                                                                                                          July 27, 2005

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

DECISION                                                                  

PUNO, J.:

First, the facts.

          The Ombudsman placed petitioner Jose C. Miranda (Mayor Miranda) then the mayor of

Santiago City, Isabela, under preventive suspension for six months from 25 July 1997 to 25

January 1998 for alleged violations of Republic Act No. 6713, otherwise known as the Code of

Conduct and Ethical Standards for Public Officials and Employees.[1] Subsequently, then Vice

Mayor Amelita S. Navarro (Vice Mayor Navarro) filed a Complaint with the Office of the

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Ombudsman (Ombudsman) on 1 December 1997 which was docketed as OMB-1-97-2312. [2] In

the said Complaint, Vice Mayor Navarro alleged that Mayor Miranda committed the following

acts on 24 November 1997 despite the continuing effectivity of the Ombudsman’s preventive

suspension order: (a) issued a memorandum addressed to Navarro advising her that he was

assuming his position as City Mayor;[3] (b) gave directives to the heads of offices and other

employees;[4] (c) issued Office Order No. 11-021 which authorized certain persons to start work;[5] and (d) insisted on performing the functions and duties of Mayor despite Navarrro’s requests to

desist from doing so without a valid court order and in spite of the order of Department of Interior

and Local Government (DILG) Undersecretary Manuel Sanchez directing him to cease from

reassuming the position.[6] Vice Mayor Navarro contended that Mayor Miranda committed the

felony of usurpation of authority or official functions under Article 177 of the Revised Penal Code

(RPC).[7]

          In his counter-affidavit, Mayor Miranda asserted that he reassumed office on the advice of

his lawyer and in good faith.[8] He contended that under Section 63(b) of the Local Government

Code, local elective officials could not be preventively suspended for a period beyond 60 days.[9] He also averred that, on the day he reassumed office, he received a memorandum from DILG

Undersecretary Manuel Sanchez instructing him to vacate his office and he immediately complied

with the same.[10] Notably, Mayor Miranda’s counter-affidavit also stated that he left the mayoralty

post after “coercion” by the Philippine National Police.[11]

On 28 October 1998, the Ombudsman filed with the Sandiganbayan an Information against

Mayor Miranda for violation of Article 177 of the RPC, penalizing usurpation of authority. On 20

November 1998, the Sandiganbayan ordered the Office of Special Prosecutor to conduct a

reinvestigation of the case in light of the manifestations made by prosecution and defense counsel.[12] After reinvestigation, Special Prosecution Officer Rodrigo V. Coquia (Coquia) recommended

the dismissal of the case in a Resolution dated 14 September 2000. [13] Coquia held that Miranda

reassumed his office in “good faith” and on “mistake of fact” due to the “difficult questions of

law” involved.[14]

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Then Ombudsman Aniano A. Desierto (Ombudsman Desierto) referred Coquia’s resolution

to the Ombudsman’s Chief Legal Counsel for review. The Chief Legal Counsel disagreed with

Coquia’s findings and recommended the filing of the case against Mayor Miranda.[15] He pointed

out that Mayor Miranda’s invocation of good faith was belied by the fact that he received a

memorandum from the DILG informing him that his view of the preventive suspension period was

untenable and that he should serve out its remaining period.[16] He further noted that Miranda

violated the orders of both the Ombudsman and the DILG.[17] Ombudsman Desierto adopted the

Chief Legal Counsel’s recommendation,[18] and the case was re-raffled to Special Prosecution

Officer Evelyn T. Lucero. Subsequently, the prosecution filed an amended Information with

the Sandiganbayan,[19] to which the petitioner interposed a negative plea.[20]

On 28 November 2001, the prosecution filed before the Sandiganbayan a motion to

suspend Mayor Miranda pendente lite based on Section 13 of Republic Act No. 3019 (R.A.

No. 3019), otherwise known as the Anti-Graft and Corrupt Practices Act.[21] Miranda opposed

the motion on the ground that the offense of usurpation of authority or official functions under

Article 177 of the RPC is not embraced by Section 13 of R.A. No. 3019 which only contemplates

offenses enumerated under R.A. No. 3019, Title VII, Book II of the RPC or which involve “fraud

upon government or public funds or property.”[22]

In a Resolution dated 4 February 2002, the Sandiganbayan preventively suspended

Mayor Miranda from office for 90 days.[23] The anti-graft court held that a violation of Article

177 of the RPC involves fraud “which in a general sense is deemed to comprise anything

calculated to deceive, including all acts, omissions, and concealment involving a breach of legal or

equitable duty, trust or confidence justly reposed, resulting in damage to another or by which an

undue and unconscious advantage is taken of another.”[24] It further ruled that Miranda’s act fell

within the catch-all provision “x x x or for any offense involving fraud upon

government.”[25] Miranda’s motion for reconsideration was denied in the Sandiganbayan’s

Resolution dated 17 June 2002.[26] Hence, the present petition assailing the Sandiganbayan’s

orders of preventive suspension. The petitioner contends that the Sandiganbayan gravely abused

its discretion when it preventively suspended him on a ground not authorized by law and  raises

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the following issues: (1) whether Section 13 of R.A. No. 3019 applies only to fraudulent acts

involving public funds or property; and (2) whether the crime of usurpation of authority or official

functions involves “fraud upon government or public funds or property” found in Section 13 of

R.A. No. 3019.

We rule in the negative.

First.           Section 13 of R.A. No. 3019, as amended, provides:Section 13.  Suspension and loss of benefits. — Any incumbent public officer

against whom any criminal prosecution under a valid information under this Act or under Title 7, Book II of the Revised Penal Code or for any offense involving fraud upon government or public funds or property whether as a simple or as a complex offense and in whatever stage of execution and mode of participation, is pending in court, shall be suspended from office. Should he be convicted by final judgment, he shall lose all retirement or gratuity benefits under any law, but if he is acquitted, he shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during suspension, unless in the meantime administrative proceedings have been filed against him.

 In the event that such convicted officer, who may have already been separated

from the service, has already received such benefits he shall be liable to restitute the same to the Government.

 

The Sandiganbayan properly construed Section 13 of R.A. No. 3019 as covering two types

of offenses: (1) any offense involving fraud on the government; and (2) any offense involving

public funds or property. Contrary to the submission of the petitioner, nothing in R.A. No. 3019

evinces any legislative intent to limit Section 13 only to acts involving fraud on public funds or

property. The phrase “any offense involving fraud upon government or public funds or property”

is clear and categorical. To limit the use of “government” as an adjective that qualifies “funds” is

baseless. The word “public” precedes “funds” and distinguishes the same from private funds. To

qualify further “public funds” as “government” funds, as petitioner claims is the law’s intent, is

plainly superfluous. We are bound by the rule that a statute should be construed reasonably with

reference to its controlling purpose and its provisions should not be given a meaning that is

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inconsistent with its scope and object. R.A. No. 3019, commonly known as the Anti-Graft and

Corrupt Practices Act, should be read to protect the State from fraud by its own officials.

Second.  We further hold that the Sandiganbayan did not gravely abuse its discretion when

it ruled that petitioner’s act fell within the catch-all provision “x x x or for any offense involving

fraud upon government. The term “fraud” is defined, viz.:An instance or an act of trickery or deceit esp. when involving

misrepresentation: an act of deluding[27]

 

It is obvious to the eyes that the phrase “fraud upon government” means “any instance or act of

trickery or deceit against the government.” It cannot be read restrictively so as to be equivalent to

malversation of funds as this is covered by the preceding phrase “any offense involving . . . public

funds or property.” It ought to follow that “fraud upon government” was committed when the

petitioner allegedly assumed the duties and performed acts pertaining to the Office of the Mayor

under pretense of official position.

The dissent opines that fraud upon government is not necessarily an essential element of the

crime of usurpation of authority.  The submission may be correct as a general proposition but

general propositions hardly decide a case.  In the case at bar, the issue is whether the alleged acts

of usurpation of authority committed by the petitioner involve “fraud upon government or public

funds or property” as the term is understood under Section 13 of R.A. No. 3019. In ruling in the

affirmative, the Sandiganbayan held:Let us take a look at the acts complained of as alleged in the Amended

Information dated July 27, 2001:

x x x  the above-named accused, a public officer, being then the elected City Mayor of Santiago City, while under preventive suspension did then and there, willfully, unlawfully and knowingly and under pretense of official position, assume the duties and functions of the Office of the Mayor, issue directives and memoranda, and appoint certain persons to various positions in the City Government and perform acts pertaining to an office to which he knowingly was deprived of.

Moreover, in private complainant Amelita S. Navarro’s Affidavit of Complaint dated November 26, 1997, she said: “x x x, he proceeded to his office and started

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Miranda vs. SB giving directives to the various heads of office and other employees, the unexpected acts of respondents had caused serious disruptions in the day to day affairs of the city government.”

Accused’s acts therefore in assuming the duties and function of the Office of the Mayor despite his suspension from said office resulted to a clear disruption of office and worst, a chaotic situation in the affairs of the government as the employees, as well as the public, suffered confusion as to who is the head of the Office.  This actuation of herein accused constitutes fraud which in general sense is deemed to comprise anything calculated to deceive, including all acts, omissions, and concealment involving a breach of legal or equitable duty, trust or confidence justly reposed, resulting in damage to another or by which an undue and unconscious advantage is taken of another (37 Am. Jur. 2d 19 at Sec. 19).  Hence, the act complained of against accused herein falls in the catchall provision “x x x or for any offense involving fraud upon government x x x.”

Moreover, the firmly entrenched doctrine which was held by the Highest Tribunal in a long line of cases is that “x x x under Section 13 of the Anti-Graft and Corrupt Practices Law, the suspension of a public officer is mandatory after a determination has been made of the validity of the Information x x x.”  In fact, as early as 1984 in the case of Bayot v. Sandiganbayan, 128 SCRA 383, the Honorable Supreme Court speaking thru Justice Relova said:

Once the information is found to be sufficient in form and substance, then the Court must issue the order of suspension as a matter of course.  There are no ifs and buts about it. x x x

After a perusal of the amended information herein, it clearly appeared that the same was apparently valid for it conforms to the requirements laid down under Section 6[,] Rule 110 of the Rules of Court.  In fact, accused herein interposed a negative plea thereto thereby tacitly acquiescing to the validity of the said Information.

There being no valid ground raised by the accused sufficient enough to warrant denial of the prayer of the prosecution in its Motion to Suspend Accused Pende[n]te Lite (sic) and in consonance with the imperious mandate of the law, the said prayer should be accorded affirmative relief.[28] (Citations omitted)

 

In denying petitioner’s Motion for Reconsideration, the Sandiganbayan further held:Accused in his motion substantially alleged that Article 177 (Usurpation of

Authority and Official Function) of the Revised Penal Code, which is the charge against herein accused, does not fall under the catchall provision of Section 13 of Republic Act No. 3019 “x x x or for any offense involving fraud upon government or

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Miranda vs. SB public funds or property x x x.”  He said that the acts complained of as alleged in the Information do not constitute fraud upon government or public fund or property.

Though the argument by the accused seems plausible, this Court is still inclined to uphold its ruling suspending accused pendente lite.  The accused argued that the fraud contemplated in the law is one involving (1) government funds or property; and (2)  public funds or property.  This is precisely availing in the case at bar.  The Information in herein case, says: “x x x accused x x x assume the duties and functions of the Office of the Mayor, issue directives and memoranda and appoint certain persons to various positions in the city government, and perform acts pertaining to an office to which he knowingly was deprived of.” When accused-mayor appointed persons in various positions, he indirectly dealt with the city’s funds as those persons appointed will be given their respective salaries, benefits and other monetary consideration which will be paid wholly or mainly out of the city’s funds.  Additionally, when he performed acts pertaining to the Office of the Mayor, i.e.[,] approval of vouchers, and payment of other expenses which is subject to proof, he likewise indirectly dealt with the funds of the city.

Moreover, as the prosecution said, “when accused Miranda, willfully and knowingly, during the effectivity of his suspension barged into the City Hall, issued orders and directives and performed functions as City Mayor, he was sending the unwritten yet visible message that he was authorized to do and function as such. x x x.”  We hold this as a fraud upon government resulting in the chaos or confusion albeit temporary, as the employees would be in a quandary whom to follow or obey.

Hence, considering that the charge herein evidently falls within the compass of the suspension provision invoked by the prosecution, there is no cogent reason for this Court to depart from its previous ruling.  Further, considering the mandatory tenor of Section 13[,] Republic Act No. 3019, the motion for reconsideration is hereby denied.

Accordingly, the Motion for Reconsideration is denied for lack of merit.[29]

 

This Court finds no reason to disagree with the Sandiganbayan.  Its conclusions are

amply supported by the record. Additionally, the issue of whether petitioner committed fraud upon

the government or public funds or property is essentially factual.  In a special civil action

for certiorari, the only question that may be raised is whether or not the respondent acted without

or in excess of jurisdiction or with grave abuse of discretion. The Court cannot correct errors of

fact or law which do not amount to grave abuse of discretion.[30]

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The dissenting opinion, however, says there was no fraud.  It holds that “it would be fraud

of public funds if these public officials just collected their salaries without rendering service to

the government.”  It further asserts that “fraud upon government” must be read so as to require

that malversation of funds was committed.[31] This is a complete volte face from its claim that

Section 13 of R.A. No. 3019 covers two types of offenses:  (1) any offense involving fraud upon

the government; and (2) any offense involving public funds or property.[32] What is more,

adopting the dissenting opinion’s line of reasoning would render superfluous the phrase “fraud

upon government” as malversation is subsumed by “any offense involving public funds or

property.”

Third.  We are not a bit persuaded by the posture of the petitioner that he reassumed office

under an honest belief that he was no longer under preventive suspension. Petitioner’s pretense

cannot stand scrutiny.  Petitioner’s own affidavit states:[33]

8.       That on November 24, 1997, at that time, (sic) I had already served my single preventive suspension for a total number of ONE HUNDRED TWENTY (120) days more or less counted from July 24, 1997, which far exceeds the allowable period of 60 days as maximum preventive suspension, for a single suspension for a local elective official like me as provided for under the Local Government Code of 1991 (sic) on the same date, November 24, 1997 in good faith and upon the advise (sic) of my lawyers, I notified both the Ombudsman and DILG of my intention to assume my office as the duly elected City Mayor of Santiago City; 

9.       That earlier on November 24, 1997 I started to reassume my office and functions as City Mayor of Santiago City; surprisingly on the same date, November 24, 1997 I received a memorandum issued by Undersecretary Manuel R. Sanchez of DILG instructing me to cease and desist from my plan to reassume the functions and duties of my office; 

10.     For less than a week, after November 24, 1997 Vice-Mayor AMELITA NAVARRO relentlessly harassed and threatened me and my constituents with bodily harm using the strong arm of the law thru the brute force of the PNP courteousy (sic) of Undersecretary Manuel R. Sanchez I was constrained to ceased (sic) from performing my duties and functions to avoid any possible unfortunate incident that may happen to me and any constituents;  x  x  x.[34] (Emphases supplied)

 

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By petitioner’s own admission, he refused to leave his position despite the memorandum

of Undersecretary Sanchez and left only a few days after receipt thereof due to the coercion of

the Philippine National Police. This contradicts his assertion that he immediately complied with

the memorandum of Undersecretary Sanchez.[35] Petitioner cannot escape from his own admission.

To be sure, petitioner’s honest belief defense is old hat.  In the 1956 case of  People v.

Hilvano,[36] the facts are:When Mayor Fidencio Latorre of Villareal, Samar, departed for Manila on

official business early in the morning of September 22, 1952, he designated the herein defendant Francisco Hilvano, councilor, to discharge the duties of his office. Later, during office hours on that same day, Vice-Mayor Juan Latorre went to the municipal building; and having found Hilvano acting in the place of the Mayor, he served written notices to the corresponding municipal officers, including Hilvano, that he (Juan Latorre) as Vice-Mayor was assuming the duties of the absent mayor.  However, Hilvano refused to yield, arguing that he had been designated by the Mayor.  Whereupon the Vice-Mayor sent a telegram to the Executive Secretary informing the latter of the controversy. And the said Secretary replied by letter, that under sec. 2195 of the Revised Administrative Code it was the Vice-Mayor who should discharge the duties of the Mayor during the latter’s temporary absence. Shown this official pronouncement, Hilvano still refused to surrender the position. Again the Vice-Mayor sought the opinion of the Provincial Fiscal, who by letter (Exhibit D), replied that the Vice-Mayor had the right to the office.  Notwithstanding such opinion which was exhibited to him – Hilvano declined to vacate the post, which he held for about a month, appointing some policemen, solemnizing marriages and collecting the corresponding salary for mayor.

 Wherefore Francisco Hilvano was prosecuted – and after trial – was convicted

of usurpation of public authority under Republic Act No. 10.  He appealed in due time.

 

In rejecting the defense of the accused Hilvano, we ruled:[37]

 There is no excuse for defendant-appellant. In the beginning he might have

pleaded good faith, invoking the designation by the Mayor;but after he had been shown the letter of the Executive Secretary and the opinion of the provincial fiscal, he had no right thereafter stubbornly to stick to the position.  He was rightfully convicted. 

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Petitioner’s excuse for violating the order of preventive suspension is too flimsy to merit

even a side-glance.  He alleged that he merely followed the advice of his lawyer.  If petitioner

and his counsel had an iota of respect for the rule of law, they should have assailed the validity

of the order of suspension in court instead of taking the law into their own hands.

Fourth.       It should be stressed that petitioner was suspended by the Sandiganbayan. 

Under Section 13 of R.A. No. 3019, this suspension is mandatory if the information is sufficient. 

Understandably, the dissent argues that the Amended Information is insufficient in form as it

should have “expressly and clearly stated that Miranda re-assumed office to defraud the

government or that in re-assuming office Miranda committed acts that defrauded the

government”[38] and that it is improper to take into account the petitioner’s admissions in his

affidavit for this purpose.

With due respect, the dissent is way off-line.  The records will show that petitioner did not

file a motion to quash the information or a motion for bill of particulars before pleading to the

information. It is basic that entering a plea waives any objection the petitioner may have to the

validity of the information except on the following grounds: (1) the information charges no

offense; (2)  the trial court has no jurisdiction over the offense charged; (3) the penalty or the

offense has been extinguished; and (4) double jeopardy has attached.[39] Objections to the

sufficiency of the allegations in the Amended Information do not fall among the exceptions to the

rule. They fall under the objection that the information “does not conform substantially to the

prescribed form.”[40] Needless to state, the petitioner has by his acts acquiesced to the validity and

sufficiency of the Amended Information. It is, thus, incorrect for the dissenting opinion to peddle

the proposition that the petitioner has been deprived of his constitutional right to be apprised of the

nature and cause of the accusation against him. Worse, it is improper for the dissenting opinion to

raise this issue motu proprio. Under our Rules of Court, it is the petitioner who should raise this

objection in a motion to quash or motion for bill of particulars before entering his plea.[41] The

irregular procedure followed by the dissent would encourage the pernicious practice of

“sandbagging” where counsel foregoes raising a pleading defect before trial where it can be easily

corrected only to raise the defect later in the hope of obtaining an arrest of judgment or new trial

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from a sympathetic magistrate.[42] It is precisely this evil that is addressed by Rule 117, Section 9

of our Revised Rules of Criminal Procedure.

Even assuming for the nonce, that the objection to the sufficiency of the information was

raised in a timely fashion by the petitioner, the dissenting opinion’s arguments still do not

convince. The validity or sufficiency of allegations in an information is determined according to

the provisions of Section 9 of the Revised Rules of Criminal Procedure, viz:SECTION 9.        Cause of the Accusation. — The acts or omissions

complained of as constituting the offense and the qualifying and aggravating circumstances must be stated in ordinary and concise language and not necessarily in the language used in the statute but in terms sufficient to enable a person of common understanding to know what offense is being charged as well as its qualifying and aggravating circumstances and for the court to pronounce judgment.[43]

 

The test is whether the crime is described in intelligible terms with such particularity as to

apprise the accused, with reasonable certainty, of the offense charged. The raison d’etre of the rule

is to enable the accused to suitably prepare his defense.[44] A perusal of the Amended Information

will bear out that it has hurdled this legal bar. We quote its contents:That on or about 24 November 1997, in the City of Santiago, Isabela,

Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, a public officer, being then the elected City Mayor of Santiago City, while under preventive suspension, did, then and there, willfully, unlawfully, and knowingly and under pretense of official position, assume the duties and function of the Office of the Mayor, issue directives and memoranda, and appoint certain persons to various positions in the city government, and perform acts pertaining to an office to which he knowingly was deprived of.[45]

 

Using this test, it cannot be said that the Amended Information failed to properly apprise the

petitioner of the charge against him. The information charged the petitioner with assuming the

duties and performing acts pertaining to the office of Mayor willfully, unlawfully and knowingly

under the pretense of official position. Moreover, it states some of the specific acts which

constitute usurpation of official functions, namely, issuing directives and memoranda and

appointing certain persons to various positions in the city government. These allegations are clear

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enough for a layman to understand. Indeed, even the petitioner does not complain about their

ambiguity. Only the dissent does.

Fifth.  The dissenting opinion also contends that the Ombudsman’s authority to

preventively suspend local elective officials for 6 months is limited by Section 63(b) of the Local

Government Code. Under the latter law, petitioner can only be suspended for a maximum period

of 60 days. It then jumps to the conclusion that petitioner could not have usurped authority

because he reassumed office after 60 days.[46]

With due respect, the dissent fails to focus on the proper issue. The issue before this Court

is whether the Sandiganbayan committed a grave abuse of discretion in suspending the petitioner

for 90 days. The validity of the Ombudsman’s order of preventive suspension of the petitioner for

6 months is not the one assailed in the case at bar. The irrelevance of the suspension order of the

Ombudsman notwithstanding, the reliance of the dissenting opinion on Garcia v.

Mojica is inapropos.  In Garcia, we held:Given these findings, we cannot say now that there is no evidence sufficiently

strong to justify the imposition of preventive suspension against petitioner. But considering its purpose and the circumstances in the case brought before us, it does appear to us that the imposition of the maximum period of six months is unwarranted. 

On behalf of respondents, the Solicitor General stated during his oral argument at the hearing that the documents mentioned in respondents' comment (such as purchase orders, purchase requests, and disbursement vouchers), documents that show petitioner's guilt, were obtained after petitioner had been suspended. Even if an afterthought, he claimed they strengthen the evidence of respondents against petitioner. If the purpose of the preventive suspension was to enable the investigating authority to gather documents without intervention from petitioner, then, from respondents' submission, we can only conclude that this purpose was already achieved, during the nearly month-long suspension of petitioner from June 25 to July 19, 1999. Granting that now the evidence against petitioner is already strong, even without conceding that initially it was weak, it is clear to us that the maximum six-month period is excessive and definitely longer than necessary for the Ombudsman to make its legitimate case against petitioner. We must conclude that the period during which petitioner was already preventively suspended, has been sufficient for the lawful purpose of preventing

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Miranda vs. SB petitioner from hiding and destroying needed documents, or harassing and preventing witnesses who wish to appear against him.

We reach the foregoing conclusion, however, without necessarily subscribing to petitioner's claim that the Local Government Code, which he averred should apply to this case of an elective local official, has been violated. True, under said Code, preventive suspension may only be imposed after the issues are joined, and only for a maximum period of sixty days. Here, petitioner was suspended without having had the chance to refute first the charges against him, and for the maximum period of six months provided by the Ombudsman Law. But as respondents argue, administrative complaints commenced under the Ombudsman Law are distinct from those initiated under the Local Government Code. Respondents point out that the shorter period of suspension under the Local Government Code is intended to limit the period of suspension that may be imposed by a mayor, a governor, or the President, who may be motivated by partisan political considerations. In contrast the Ombudsman, who can impose a longer period of preventive suspension, is not likely to be similarly motivated because it is a constitutional body. The distinction is valid but not decisive, in our view, of whether there has been grave abuse of discretion in a specific case of preventive suspension. [47] (Emphases supplied)

  

Nowhere in Garcia is it stated that the limits provided in the Local Government Code apply

to the Ombudsman. In fact, the Court expressly stated that its decision was rendered without

subscribing to the petitioner’s claim that the Local Government Code had been violated. In fine,

the Court only ruled that the Ombudsman acted with grave abuse of discretion in imposing a 6-

month preventive suspension since it was admitted that the documents required were already

obtained by 19 July 1999 or 24 days after the imposition of the preventive suspension. Therefore,

the purpose for which the suspension was imposed was already served.

The dissenting opinion also cites the case of Rios v. Sandiganbayan[48] as basis for

assailing the Ombudsman’s order of preventive suspension.Rios is neither here nor there since the

powers of the Sandiganbayan were at issue in that case, not those of the Ombudsman. It is also

worth noting thatRios cited Section 63 of the Local Government Code as its legal basis. This

provision provides:SECTION 63. Preventive Suspension. -  (a)      Preventive suspension may be imposed:  

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Miranda vs. SB (1)     By the President, if the respondent is an elective official of a province, a

highly urbanized or an independent component city;

(2)     By the governor, if the respondent is an elective official of a component city or municipality; or

(3)     By the mayor, if the respondent is an elective official of the barangay. (b)     Preventive suspension may be imposed at any time after the issues are joined,

when the evidence of guilt is strong, and given the gravity of the offense, there is great probability that the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence: Provided, That, any single preventive suspension of local elective officials shall not extend beyond sixty (60) days: Provided, further, That in the event that several administrative cases are filed against an elective official, he cannot be preventively suspended for more than ninety (90) days within a single year on the same ground or grounds existing and known at the time of the first suspension.

(c)     Upon expiration of the preventive suspension, the suspended elective official shall be deemed reinstated in office without prejudice to the continuation of the proceedings against him, which shall be terminated within one hundred twenty (120) days from the time he was formally notified of the case against him. However, if the delay in the proceedings of the case is due to his fault, neglect, or request, other than the appeal duly filed, the duration of such delay shall not be counted in computing the time of termination of the case.

  

It is plain that the provision was only meant as a cap on the discretionary power of the

President, governor and mayor to impose excessively long preventive suspensions. The

Ombudsman is not mentioned in the said provision and was not meant to be governed thereby.

Indeed, the reason is not hard to distill. The President, governor and mayor are political

personages. As such, the possibility of extraneous factors influencing their decision to impose

preventive suspensions is not remote. The Ombudsman, on the other hand, is not subject to

political pressure given the independence of the office which is protected by no less than the

Constitution. This view was embraced by the Court in Hagad v. Gozo-Dadole[49] and Garcia v.

Mojica.[50]  In Hagad, we held:Respondent local officials contend that the 6-month preventive suspension

without pay under Section 24 of the Ombudsman Act is much too repugnant to the 60-day preventive suspension provided by Section 63 of the Local

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Miranda vs. SB Government Code to even now maintain its application. The two provisions govern differently. In order to justify the preventive suspension of a public official under Section 24 of R.A. No. 6770, the evidence of guilt should be strong, and (a) the charge against the officer or employee should involve dishonestly, oppression or grave misconduct or neglect in the performance of duty; (b) that the charges should warrant removal from the service; or (c) the respondent's continued stay in office would prejudice the case filed against him. The Ombudsman can impose the 6-month preventive suspension to all public officials, whether elective or appointive, who are under investigation. Upon the other hand, in imposing the shorter period of sixty (60) days of preventive suspension prescribed in the Local Government Code of 1991 on an elective local official (at any time after the issues are joined), it would be enough that (a) there is reasonable ground to believe that the respondent has committed the act or acts complained of, (b) the evidence of culpability is strong,(c) the gravity of the offense so warrants, or (d) the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence.[51]

  In the same vein, we made the following observations in Garcia, viz.:

 Respondents may be correct in pointing out the reason for the shorter period of

preventive suspension imposable under the Local Government Code. Political color could taint the exercise of the power to suspend local officials by the mayor, governor, or President's office.In contrast the Ombudsman, considering the constitutional origin of his Office, always ought to be insulated from the vagaries of politics, as respondents would have us believe.   x   x   x

 It was also argued in Hagad, that the six-month preventive suspension

under the Ombudsman Law is "much too repugnant" to the 60-day period that may be imposed under the Local Government Code. But per J. Vitug, "the two provisions govern differently."[52] (Emphases supplied)

  

There is no reason to reverse this ruling. Our above ruling is in accord with the intent of the

law. It bears emphasis that Senator Pimentel[53] explained during the Senate deliberations that the

purpose of Section 63 of the Code is to prevent the abuse of the power of preventive

suspension by members of the executive branch, to wit:The President.[54] I recall that in the case of Iloilo City Mayor Ganzon, he

challenged the right of the President, acting through the Secretary of Local Government, I think, Luis Santos, to suspend him -  -

 

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Miranda vs. SB Senator Pimentel. That is true, Mr. President. The President.  -  -  contending that under the new Constitution, even the

President does not have that right. Senator Pimentel.  Now, as far as we are concerned, the Senate Committee

is ready to adopt a more stringent rule regarding the power of removal and suspension by the Office of the President over local government officials, Mr. President. We would only wish to point out that in a subsequent section, we have provided for the power of suspension of local government officials to be limited only to 60 days and not more than 90 days in any one year, regardless of the number of administrative charges that may be filed against a local government official. We, in fact, had in mind the case of Mayor Ganzon of Iloilo where the Secretary of Local Government sort of serialized the filing of charges against him so that he can be continuously suspended when one case is filed right after the other, Mr. President.

 

The President. Can that be done under this new Code? 

Senator Pimentel. Under our proposal, that can no longer be done, Mr. President.[55]

 

Verily, Section 63 of the Local Government Code does not govern preventive suspensions

imposed by the Ombudsman, which is a constitutionally created office and independent from the

Executive branch of government.[56] The Ombudsman’s power of preventive suspension is

governed by Republic Act No. 6770,[57] otherwise known as “The Ombudsman Act of 1989,”

which provides:SECTION 24.     Preventive Suspension. — The Ombudsman or his Deputy

may preventively suspend any officer or employee under his authority pending an investigation, if in his judgment the evidence of guilt is strong, and (a) the charge against such officer or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal from the service; or (c) the respondent's continued stay in office may prejudice the case filed against him. 

The preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but not more than six months, without pay, except when the delay in the disposition of the case by the Office of the Ombudsman is due to the fault, negligence or petition of the respondent, in which case the period of such delay

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Miranda vs. SB shall not be counted in computing the period of suspension herein provided.[58] (Emphasis supplied)

 

The six-month period of preventive suspension imposed by the Ombudsman[59] was indubitably

within the limit provided by its enabling law. This enabling law has not been modified by the

legislature.

The dissenting opinion submits that providing for a six-month limit for the Ombudsman

while keeping the limit for executive officials at sixty days violates the constitutional proscription

against equal protection of the law. In essence, it avers that there is no substantial distinction

between preventive suspensions handed down by the Ombudsman and those imposed by executive

officials. On the contrary, there is a world of difference between them. The Constitution has

endowed the Ombudsman with unique safeguards to ensure immunity from political pressure.

Among these statutory protections are fiscal autonomy,[60] fixed term of office[61] and classification

as an impeachable officer.[62] This much was recognized by this Court in the earlier cited case

ofGarcia v. Mojica.[63] Moreover, there are stricter safeguards for imposition of preventive

suspension by the Ombudsman. The Ombudsman Act of 1989 requires that the Ombudsman

determine: (1) that the evidence of guilt is strong; and (2) that any of the following circumstances

are present: (a) the charge against such officer or employee involves dishonesty, oppression, or

grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal

from the service; or (c) the respondent's continued stay in office may prejudice the case filed

against him.[64]

The dissenting opinion finally points out the possibility of abuse by the Ombudsman in

imposing preventive suspensions.  The short reply is that all powers are susceptible of abuse but

that is no reason to strike down the grant of power. Suffice it to say that the proper remedies

against abuse in the exercise of power are a petition for certiorari under Rule 65 of the 1997 Rules

of Civil Procedure or amendment of the Ombudsman’s enabling law by the legislature,not a

contortionist statutory interpretation by this Court.

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Miranda vs. SB

IN VIEW WHEREOF, the instant petition is DISMISSED there being no showing that the

Sandiganbayan gravely abused its discretion in issuing its Resolution of 4 February 2002,

preventively suspending the petitioner for 90 days.

SO ORDERED.

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Atienza vs. Villarosa

EN BANC

[G.R. No. 161081.  May 10, 2005]

RAMON M. ATIENZA, in his capacity as Vice-Governor of the Province of Occidental Mindoro, petitioner, vs. JOSE T. VILLAROSA, in his capacity as Governor of the Province of Occidental Mindoro, respondent.

D E C I S I O N

CALLEJO, SR., J.:

Before the Court is the petition for review on certiorari filed by Ramon M. Atienza, in his capacity as Vice-Governor of the Province of Occidental  Mindoro, seeking to reverse and set aside the Decision[1] dated November 28, 2003 of the Court of Appeals in CA-G.R. SP No. 72069.  The assailed decision dismissed the petition for prohibition under Rule 65 of the Rules of Court filed by petitioner Atienza which had sought to enjoin the implementation of the Memoranda dated June 25, 2002 and July 1, 2002 issued by Jose T. Villarosa, Governor of the same province.

The present case arose from the following undisputed facts:

Petitioner Atienza and respondent Villarosa were the Vice-Governor and Governor, respectively, of the Province of Occidental Mindoro.  On June 26, 2002, the petitioner Vice-Governor received the Memorandum dated June 25, 2002 issued by the respondent Governor concerning the “AUTHORITY TO SIGN PURCHASE ORDERS OF SUPPLIES, MATERIALS, EQUIPMENT[S], INCLUDING FUEL, REPAIRS AND MAINTENANCE OF THE SANGGUNIANG PANLALAWIGAN.”  The said memorandum reads:

For proper coordination and to ensure efficient and effective local government administration particularly on matters pertaining to supply and property management, effective immediately, all Purchase Orders issued in connection with the procurement of supplies, materials and equipment[s] including fuel, repairs and maintenance needed in the transaction of public business or in the pursuit of any undertaking, project or activity of the Sangguniang Panlalawigan, this province, shall be approved by the undersigned in his capacity as the local chief executive of the province.

The provision of DILG Opinion No. 148-1993 which states that the authority to sign Purchase Orders of supplies, materials and equipment[s] of the Sanggunian belongs to the local chief executive, serves as basis of this memorandum.

For strict compliance.[2]

In reply to the above memorandum, the petitioner Vice-Governor wrote the respondent Governor stating that:

We are of the opinion that … purchase orders for supplies, materials and equipment are included under those as authorized for signature by the Vice-chief executive of the Sanggunian on the basis of

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Atienza vs. Villarosa the DILG Opinion No. 96-1995 as affirmed by the COA Opinions on June 28, April 11 and February 9, 1994 and coursing it to the Governor for his approval is no longer necessary, the fact that [Secs.] 466 and 468, RA 7160 already provides for the separation of powers between the executive and legislative.  Such authority even include everything necessary for the legislative research program of the Sanggunian.[3]

Unimpressed, the respondent Governor issued the Memorandum dated July 1, 2002 relating to the “TERMINATION OF CONTRACT OF SERVICES OF CASUAL/JOB ORDER EMPLOYEES AND REAPPOINTMENT OF THE RESPECTIVE RECOMMENDEES.”  The said memorandum reads:

For faithful and appropriate enforcement and execution of laws and issuances and to promote efficiency in the government service, effective immediately, all existing contract of employment – casual/job order basis and reappointment of the recommendees – entered into by Vice-Governor Ramon M. Atienza are hereby terminated for being unauthorized.

Aside from being signed by the unauthorized signatory, the following facts regarding the appointments were considered:

1.   The appointment of 28 clerks – on top of existing permanent employees – is a clear manifestation of an excessive and bloated bureaucracy;

2.   The appointment of an X-ray Technician detailed at the Provincial Health Office and some clerks detailed at various offices in the province were not proper to be assigned by the Vice-Governor;

3.   The appointment of 30 messengers, utility workers and drivers ran counter to COA Opinion as cited in the letter of the undersigned dated 28 June 2002, addressed to the Vice-Governor.

However, in order to accommodate the Vice-Governor and the members of the Sangguniang Panlalawigan, the undersigned, in his capacity as the local chief executive of the province, will allow four (4) casual/job order employees to be assigned to the Vice-Governor and one (1) casual/job order employee to be assigned to each member of the Sangguniang Panlalawigan.

The Vice-Governor and all the Sanggunian Members are hereby directed to submit immediately the names of their recommendees to the undersigned for immediate approval of their respective appointments.

Please be guided accordingly.[4]

On July 3, 2002, the respondent Governor issued another Memorandum regarding the “ENFORCIBILITY (sic) OF PREVIOUS MEMORANDA ISSUED ON JUNE 20, 26 AND JULY 1, 2002.” It provides that:

Please be properly advised that the Memoranda dated June 20, 26 and July 1, 2002 issued by the undersigned regarding the issuance of permit to travel and authority to sign Purchase Orders of

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Atienza vs. Villarosa supplies, materials, equipment, including fuel, repairs and maintenance of the Sangguniang Panlalawigan, is to be strictly adhered to for compliance.

Likewise for strict compliance is the Memorandum dated July 1, 2002 with reference to the Cancellation of the Appointment of Casual/Job Order Employees of the Sangguniang Panlalawigan Members/Office of the Vice-Governor previously signed by Vice-Governor Ramon M. Atienza.

Please be guided accordingly.[5]

In his Letter dated July 9, 2002, the petitioner Vice-Governor invoked the principle of separation of powers as applied to the local government units, i.e., the respondent, as the Governor, the head of the executive branch, and the petitioner, as the Vice-Governor, the head of the legislative branch, which is the Sangguniang Panlalawigan.  The petitioner Vice-Governor reiterated his request for the respondent to make a “deeper study” on the matter before implementing his memoranda.   The request, however, went unheeded as the respondent Governor insisted on obliging the department heads of the provincial government to comply with the memoranda.

The petitioner Vice-Governor thus filed with the Court of Appeals the petition for prohibition assailing as having been issued with grave abuse of discretion the respondent Governor’s Memoranda dated June 25, 2002 and July 1, 2002.  The petitioner Vice-Governor claimed that these memoranda excluded him from the use and enjoyment of his office in violation of the pertinent provisions of Republic Act No. 7160, or the Local Government Code of 1991, and its implementing rules and regulations.  It was prayed that the respondent Governor be enjoined from implementing the assailed memoranda.

The appellate court, in its Decision dated November 28, 2003, dismissed the petition for prohibition.  Citing Section 344[6] of Rep. Act No. 7160, the CA upheld the authority of the respondent Governor to issue the Memorandum dated June 25, 2002 as it recognized his authority to approve the purchase orders.  The said provision provides in part that “approval of the disbursement voucher by the local chief executive himself shall be required whenever local funds are disbursed.”

The CA explained that Section 466(a)(1)[7] of the same Code, relied upon by the petitioner Vice-Governor, speaks of the authority of the Vice-Governor to sign “allwarrants drawn on the public treasury for all expenditures appropriated for the operation of the sangguniang panlalawigan.” In declaring this provision inapplicable, the CA reasoned that the approval of purchase orders is different from the power of the Vice-Governor to sign warrants drawn against the public treasury.

Section 361[8] was, likewise, held to be inapplicable ratiocinating, thus:

[R]equisitioning, which is provided under Section 361 of RA 7160, is the act of requiring that something be furnished.  In the procurement function, it is the submission of written requests for supplies and materials and the like.  It could be inferred that, in the scheme of things, approval of purchase requests is different from approval of purchase orders.  Thus, the inapplicability of Section 361.

Anent the Memorandum dated July 1, 2002, the CA ruled that the issue on whether it could be enjoined had already been rendered moot and academic.  The CA pointed out that the subject of the said memorandum could no longer be enjoined or restrained as the termination of the employees had already been effected.  It opined that where the act sought to be enjoined in the prohibition proceedings had already been performed and there is nothing more to restrain, the case is already moot and academic.

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Atienza vs. Villarosa The petitioner Vice-Governor now seeks recourse to this Court alleging that the appellate court

committed reversible error in ruling that it is the Governor, and not the Vice-Governor, who has the authority to sign purchase orders of supplies, materials, equipment, including fuel, repairs and maintenance of the Sangguniang Panlalawigan.  The petitioner Vice-Governor, likewise, takes exception to the holding of the CA that the issue relating to the July 1, 2002 Memorandum had been rendered moot and academic.  He points out that the appointment of casual/job order employees is exercised by the appointing authority every six months in the case of casual employees and per job order as to job order employees.  Thus, while the July 1, 2002 Memorandum had already been implemented, what is being sought to be enjoined is the respondent Governor’s continued usurpation of the petitioner Vice-Governor’s authority to appoint the employees of the Sangguniang Panlalawigan under the pertinent provisions of Rep. Act No. 7160.

For his part, the respondent Governor maintains that his Memoranda dated June 25, 2002 and July 1, 2002 are valid.  He asserts that the approval of purchase orders is different from the power of the Vice-Governor to sign warrants drawn against the provincial treasury under Section 466(a)(1) of Rep. Act No. 7160.  Rather, he insists on the application of the last clause in Section 344 which states that the approval of the disbursement by the local chief executive is required whenever local funds are disbursed.

The respondent Governor likewise defends the validity of the Memorandum dated July 1, 2002 stating that it was issued upon finding that the petitioner Vice-Governor appointed, among others, 28 clerks on top of the existing permanent employees resulting in an excessive and bloated bureaucracy.  He concedes the appointing power of the Vice-Governor but submits that this is limited to the employees of the Sangguniang Panlalawigan and that he is not authorized to appoint officials and employees of the Office of the Vice-Governor.

As correctly presented by the appellate court, the issues for resolution in this case are:

A.      Who between the petitioner and the respondent is authorized to approve purchase orders issued in connection with the procurement of supplies, materials, equipment, including fuel, repairs and maintenance of the Sangguniang Panlalawigan?

B.      Does respondent Villarosa, as local chief executive, have the authority to terminate or cancel the appointments of casual/job order employees of the Sangguniang Panlalawigan Members and the Office of the Vice-Governor?[9]

Before resolving the foregoing issues, it is noted that petitioner Atienza and respondent Villarosa had ceased to be the Vice-Governor and Governor, respectively, of the Province of Occidental Mindoro effective June 30, 2004 when the newly-elected officials of the province took their oaths of offices.  The petitioner Vice-Governor did not run for re-election during the May 2004 elections while the respondent Governor did not succeed in his re-election bid.  The expiration of their terms of offices has effectively rendered the case moot.  However, even in cases where supervening events had made the cases moot, the Court did not hesitate to resolve the legal or constitutional issues raised to formulate controlling principles to guide the bench, bar and the public.[10] In this case, there is compelling reason for the Court to resolve the issues presented in order to clarify the scope of the respective powers of the Governor and Vice-Governor under the pertinent provisions of the Local Government Code of 1991.

To resolve the substantive issues presented in the instant case, it is well to recall that Rep. Act No. 7160 was enacted to give flesh to the constitutional mandate to “provide for a more responsive and accountable local government structure instituted through a system of decentralization with effective mechanism of recall, initiative and referendum, allocate among the different local government units their

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Atienza vs. Villarosa powers, responsibilities, and resources, and provide for the qualifications, election, appointment and removal, term, salaries, powers and functions and duties of local officials, and all matters relating to the organization and operation of the local units.”[11]

In this connection, the provisions of Rep. Act No. 7160 are anchored on principles that give effect to decentralization.  Among these principles are: [t]here shall be an effective allocation among the different local government units of their respective powers, functions, responsibilities, and resources; [t]here shall be established in every local government unit an accountable, efficient, and dynamic organizational structure and operating mechanism that will meet the priority needs and service requirements of its communities; [p]rovinces with respect to component cities and municipalities, and cities and municipalities with respect to component barangays, shall ensure that the acts of their component units are within the scope of their prescribed powers and functions; and [e]ffective mechanisms for ensuring the accountability of local government units to their respective constituents shall be strengthened in order to upgrade continually the quality of local leadership.[12]

With these guideposts, the Court shall now address the issue on who between the Governor and Vice-Governor is authorized to approve purchase orders issued in connection with the procurement of supplies, materials, equipment, including fuel, repairs and maintenance of the Sangguniang Panlalawigan.

We hold that it is the Vice-Governor who has such authority.

Under Rep. Act No. 7160, local legislative power for the province is exercised by the Sangguniang Panlalawigan[13] and the Vice-Governor is its presiding officer. [14]Being vested with legislative powers, the Sangguniang Panlalawigan enacts ordinances, resolutions and appropriates funds for the general welfare of the province in accordance with the provisions of Rep. Act No. 7160. [15] The same statute vests upon the Vice-Governor the power to:

(1)     Be the presiding officer of the sangguniang panlalawigan and sign all warrants drawn on the provincial treasury for all expenditures appropriated for the operation of the sangguniang panlalawigan. [16]

Further, Section 344 provides:

Sec. 344. Certification on, and Approval of, Vouchers. – No money shall be disbursed unless the local budget officer certifies to the existence of appropriation that has been legally made for the purpose, the local accountant has obligated said appropriation, and the local treasurer certifies to the availability of funds for the purpose.  Vouchers and payrolls shall be certified to and approved by the head of the department or office who has administrative control of the fund concerned, as to validity, propriety and legality of the claim involved.  Except in cases of disbursements involving regularly recurring administrative expenses such as payrolls for regular or permanent employees, expenses for light, water, telephone and telegraph services, remittances to government creditor agencies such as the GSIS, SSS, LBP, DBP, National Printing Office, Procurement Service of the DBM and others, approval of the disbursement voucher by the local chief executive himself shall be required whenever local funds are disbursed.

In cases of special or trust funds, disbursements shall be approved by the administrator of the fund.

In case of temporary absence or incapacity of the department head or chief of office, the officer next-in-rank shall automatically perform his function and he shall be fully responsible therefor.

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Atienza vs. Villarosa Reliance by the CA on the clause “approval of the disbursement voucher by the local chief executive

himself shall be required whenever local funds are disbursed” of the above section (Section 344) to rule that it is the Governor who has the authority to approve purchase orders for the supplies, materials or equipment for the operation of theSangguniang Panlalawigan is misplaced.  This clause cannot prevail over the more specific clause of the same provision which provides that “vouchers and payrolls shall be certified to and approved by the head of the department or office who has administrative control of the fund concerned.”  The Vice-Governor, as the presiding officer of the Sangguniang Panlalawigan, has administrative control of the funds of the said body.  Accordingly, it is the Vice-Governor who has the authority to approve disbursement vouchers for expenditures appropriated for the operation of the Sangguniang Panlalawigan.

On this point, Section 39 of the Manual on the New Government Accounting System for Local Government Units, prepared by the Commission on Audit (COA), is instructive:

Sec. 39. Approval of Disbursements. – Approval of disbursements by the Local Chief Executive (LCE) himself shall be required whenever local funds are disbursed, except for regularly recurring administrative expenses such as: payrolls for regular or permanent employees, expenses for light, water, telephone and telegraph services, remittances to government creditor agencies such as GSIS, BIR, PHILHEALTH, LBP, DBP, NPO, PS of the DBM and others, where the authority to approve may be delegated.  Disbursement vouchers for expenditures appropriated for the operation of the Sanggunian shall be approved by the provincial Vice Governor, the city Vice-Mayor or the municipal Vice-Mayor, as the case may be.[17]

While Rep. Act No. 7160 is silent as to the matter, the authority granted to the Vice-Governor to sign all warrants drawn on the provincial treasury for all expenditures appropriated for the operation of the Sangguniang Panlalawigan as well as to approve disbursement vouchers relating thereto necessarily includes the authority to approve purchase orders covering the same applying the doctrine of necessary implication.  This doctrine is explained, thus:

No statute can be enacted that can provide all the details involved in its application.  There is always an omission that may not meet a particular situation.  What is thought, at the time of enactment, to be an all-embracing legislation may be inadequate to provide for the unfolding of events of the future.  So-called gaps in the law develop as the law is enforced.  One of the rules of statutory construction used to fill in the gap is the doctrine of necessary implication.  The doctrine states that what is implied in a statute is as much a part thereof as that which is expressed.  Every statute is understood, by implication, to contain all such provisions as may be necessary to effectuate its object and purpose, or to make effective rights, powers, privileges or jurisdiction which it grants, including all such collateral and subsidiary consequences as may be fairly and logically inferred from its terms.  Ex necessitate legis.  And every statutory grant of power, right or privilege is deemed to include all incidental power, right or privilege.  This is so because the greater includes the lesser, expressed in the maxim, in eo plus sit, simper inest et minus.[18]

Warrants are “order[s] directing the treasurer of the municipality to pay money out of funds in city treasury which are or may become available for purpose specified to designated person[s].” [19] Warrants of a municipal corporation are generally orders payable when funds are found.  They are issued for the payment of general municipal debts and expenses subject to the rule that they shall be paid in the order of presentation.[20]

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Atienza vs. Villarosa The ordinary meaning of “voucher” is a document which shows that services have been performed

or expenses incurred.  It covers any acquittance or receipt discharging the person or evidencing payment by him.  When used in connection with disbursement of money, it implies some instrument that shows on what account or by what authority a particular payment has been made, or that services have been performed which entitle the party to whom it is issued to payment.[21]

Purchase order, on the other hand, is “an authorization by the issuing party for the recipient to provide materials or services for which issuing party agrees to pay; it is an offer to buy which becomes binding when those things ordered have been provided.”[22]

When an authorized person approves a disbursement voucher, he certifies to the correctness of the entries therein, among others: that the expenses incurred were necessary and lawful, the supporting documents are complete and the availability of cash therefor. Further, the person who performed the services or delivered the supplies, materials or equipment is entitled to payment. [23] On the other hand, the terms and conditions for the procurement of supplies, materials or equipment, in particular, are contained in a purchase order.  The tenor of a purchase order basically directs the supplier to deliver the articles enumerated and subject to the terms and conditions specified therein. [24] Hence, the express authority to approve disbursement vouchers and, in effect, authorize the payment of money claims for supplies, materials or equipment, necessarily includes the authority to approve purchase orders to cause the delivery of the said supplies, materials or equipment.

Since it is the Vice-Governor who approves disbursement vouchers and approves the payment for the procurement of the supplies, materials and equipment needed for the operation of the Sangguniang Panlalawigan, then he also has the authority to approve the purchase orders to cause the delivery of the said supplies, materials or equipment.

Indeed, the authority granted to the Vice-Governor to sign all warrants drawn on the provincial treasury for all expenditures appropriated for the operation of theSangguniang Panlalawigan as well as to approve disbursement vouchers relating thereto is greater and includes the authority to approve purchase orders for the procurement of the supplies, materials and equipment necessary for the operation of the Sangguniang Panlalawigan.

Anent the second issue, the appellate court likewise committed reversible error in holding that the implementation of the Memorandum dated July 1, 2002 had rendered the petition moot and academic.  It is recognized that courts will decide a question otherwise moot and academic if it is “capable of repetition yet evading review.”[25] Even if the employees whose contractual or job order employment had been terminated by the implementation of the July 1, 2002 Memorandum may no longer be reinstated, still, similar memoranda may be issued by other local chief executives.  Hence, it behooves the Court to resolve whether the Governor has the authority to terminate or cancel the appointments of casual/job order employees of the Sangguniang Panlalawigan and the Office of the Vice-Governor.

We hold that the Governor, with respect to the appointment of the officials and employees of the Sangguniang Panlalawigan, has no such authority.

Among the powers granted to the Governor under Section 465 of Rep. Act No. 7160 are:

Sec. 465. The Chief Executive: Powers, Duties, Functions and Compensation.– (a) The provincial governor, as the chief executive of the provincial government, shall exercise such powers and perform such duties and functions as provided by this Code and other laws.

(b) For efficient, effective and economical governance the purpose of which is the general welfare of the province and its inhabitants pursuant to Section 16 of this Code, the provincial governor shall:

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Atienza vs. Villarosa …

(v) Appoint all officials and employees whose salaries and wages are wholly or mainly paid out of provincial funds and whose appointments are not otherwise provided for in this Code, as well as those he may be authorized by law to appoint.

On the other hand, Section 466 vests on the Vice-Governor the power to, among others:

(2) Subject to civil service law, rules and regulations, appoint all officials and employees of the sangguniang panlalawigan, except those whose manner of appointment is specifically provided in this Code.

Thus, while the Governor has the authority to appoint officials and employees whose salaries are paid out of the provincial funds, this does not extend to the officials and employees of the Sangguniang Panlalawigan because such authority is lodged with the Vice-Governor.  In the same manner, the authority to appoint casual and job order employees of the Sangguniang Panlalawigan belongs to the Vice-Governor.

The authority of the Vice-Governor to appoint the officials and employees of the Sangguniang Panlalawigan is anchored on the fact that the salaries of these employees are derived from the appropriation specifically for the said local legislative body.  Indeed, the budget source of their salaries is what sets the employees and officials of the Sangguniang Panlalawigan apart from the other employees and officials of the province.  Accordingly, the appointing power of the Vice-Governor is limited to those employees of the Sangguniang Panlalawigan, as well as those of the Office of the Vice-Governor, whose salaries are paid out of the funds appropriated for the Sangguniang Panlalawigan.  As a corollary, if the salary of an employee or official is charged against the provincial funds, even if this employee reports to the Vice-Governor or is assigned to his office, the Governor retains the authority to appoint the said employee pursuant to Section 465(b)(v) of Rep. Act No. 7160.

However, in this case, it does not appear whether the contractual/job order employees, whose appointments were terminated or cancelled by the Memorandum dated July 1, 2002 issued by the respondent Governor, were paid out of the provincial funds or the funds of the Sangguniang Panlalawigan.  Nonetheless, the validity of the said memorandum cannot be upheld because it absolutely prohibited the respondent Vice-Governor from exercising his authority to appoint the employees, whether regular or contractual/job order, of the Sangguniang Panlalawigan and restricted such authority to one of recommendatory nature only. [26] This clearly constituted an encroachment on the appointment power of the respondent Vice- Governor under Section 466(a)(2) of Rep. Act No. 7160.

At this juncture, it is well to note that under Batas Pambansa Blg. 337, the Local Government Code prior to Rep. Act No. 7160, the Governor was the presiding officer of the Sangguniang Panlalawigan:

Sec. 205. Composition. (1) Each provincial government shall have a provincial legislature hereinafter known as the sangguniang panlalawigan, upon which shall be vested the provincial legislative power.

(2) The sangguniang panlalawigan shall be composed of the governor, vice-governor, elective members of the said sanggunian, and the presidents of the katipunang panlalawigan and thekabataang barangay provincial federation who shall be appointed by the President of the Philippines.

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Atienza vs. Villarosa Sec. 206. Sessions. –

(3) The governor, who shall be the presiding officer of the sangguniang panlalawigan, shall not be entitled to vote except in case of a tie.

With Rep. Act No. 7160, the union of legislative and executive powers in the office of the local chief executive under the BP Blg. 337 has been disbanded, so that either department now comprises different and non-intermingling official personalities with the end in view of ensuring a better delivery of public service and provide a system of check and balance between the two.[27]

Senator Aquilino Pimentel, the principal author of Rep. Act No. 7160, explained that “the Vice-Governor is now the presiding officer of the Sangguniang Panlalawigan. The City Vice-Mayor presides at meetings of the Sangguniang Panlungsod and the Municipal Vice-Mayor at the sessions of the Sangguniang Bayan.  The idea is to distribute powers among elective local officials so that the legislative, which is the Sanggunian, can properly check the executive, which is the Governor or the Mayor and vice versa and exercise their functions without any undue interference from one by the other.”[28]

The avowed intent of Rep. Act. No. 7160, therefore, is to vest on the Sangguniang Panlalawigan independence in the exercise of its legislative functions vis-a-vis the discharge by the Governor of the executive functions. The Memoranda dated June 25, 2002 and July 1, 2002 of the respondent Governor, which effectively excluded the petitioner Vice-Governor, the presiding officer of the Sangguniang Panlalawigan, from signing the purchase orders for the procurement of supplies, materials or equipment needed for the operation of the Sangguniang Panlalawigan as well as from appointing its casual and job order employees, constituted undue interference with the latter’s functions.  The assailed memoranda are clearly not in keeping with the intent of Rep. Act No. 7160 and their implementation should thus be permanently enjoined.

WHEREFORE, the petition is GRANTED.  The Memoranda dated June 25, 2002 and July 1, 2002 issued by respondent Governor Jose T. Villarosa are NULL AND VOID.

SO ORDERED.

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Catu vs. Rellosa

Republic of the PhilippinesSUPREME COURT

Manila

FIRST DIVISION

A.C. No. 5738             February 19, 2008

WILFREDO M. CATU, complainant, vs.ATTY. VICENTE G. RELLOSA, respondent.

R E S O L U T I O N

CORONA, J.:

Complainant Wilfredo M. Catu is a co-owner of a lot1 and the building erected thereon located at 959 San Andres Street, Malate, Manila. His mother and brother, Regina Catu and Antonio Catu, contested the possession of Elizabeth C. Diaz-Catu2 and Antonio Pastor3 of one of the units in the building. The latter ignored demands for them to vacate the premises. Thus, a complaint was initiated against them in the Lupong Tagapamayapa of Barangay 723, Zone 79 of the 5th District of Manila4 where the parties reside.

Respondent, as punong barangay of Barangay 723, summoned the parties to conciliation meetings.5 When the parties failed to arrive at an amicable settlement, respondent issued a certification for the filing of the appropriate action in court.

Thereafter, Regina and Antonio filed a complaint for ejectment against Elizabeth and Pastor in the Metropolitan Trial Court of Manila, Branch 11. Respondent entered his appearance as counsel for the defendants in that case. Because of this, complainant filed the instant administrative complaint,6 claiming that respondent committed an act of impropriety as a lawyer and as a public officer when he stood as counsel for the defendants despite the fact that he presided over the conciliation proceedings between the litigants as punong barangay.

In his defense, respondent claimed that one of his duties as punong barangay was to hear complaints referred to the barangay's Lupong Tagapamayapa. As such, he heard the complaint of Regina and Antonio against Elizabeth and Pastor. As head of the Lupon, he performed his task with utmost objectivity, without bias or partiality towards any of the parties. The parties, however, were not able to amicably settle their dispute and Regina and Antonio filed the ejectment case. It was then that Elizabeth sought his legal assistance. He acceded to her request. He handled her case for free because she was financially distressed and he wanted to prevent the commission of a patent injustice against her.

The complaint was referred to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation. As there was no factual issue to thresh out, the IBP's Commission on Bar Discipline (CBD) required the parties to submit their respective position papers. After evaluating the contentions of the parties, the IBP-CBD found sufficient ground to discipline respondent.7

According to the IBP-CBD, respondent admitted that, as punong barangay, he presided over the conciliation proceedings and heard the complaint of Regina and Antonio against Elizabeth and Pastor. Subsequently, however, he represented Elizabeth and Pastor in the ejectment case filed against them by Regina and Antonio. In the course thereof, he prepared and signed pleadings including the answer with counterclaim, pre-trial brief, position paper and notice of appeal. By so doing, respondent violated Rule 6.03 of the Code of Professional Responsibility:

Rule 6.03 - A lawyer shall not, after leaving government service, accept engagement or employment in connection with any matter in which he intervened while in said service.

Furthermore, as an elective official, respondent contravened the prohibition under Section 7(b)(2) of RA 6713:8

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Catu vs. RellosaSEC. 7. Prohibited Acts and Transactions. - In addition to acts and omissions of public officials and employees now prescribed in the Constitution and existing laws, the following shall constitute prohibited acts and transactions of any public official ands employee and are hereby declared to be unlawful:

xxx       xxx       xxx

(b) Outside employment and other activities related thereto. - Public officials and employees during their incumbency shall not:

xxx       xxx       xxx

(2) Engage in the private practice of profession unless authorized by the Constitution or law, provided that such practice will not conflict or tend to conflict with their official functions; xxx (emphasis supplied)

According to the IBP-CBD, respondent's violation of this prohibition constituted a breach of Canon 1 of the Code of Professional Responsibility:

CANON 1. A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY THE LAWS OF THE LAND, PROMOTE RESPECT FOR LAW AND LEGAL PROCESSES. (emphasis supplied)

For these infractions, the IBP-CBD recommended the respondent's suspension from the practice of law for one month with a stern warning that the commission of the same or similar act will be dealt with more severely.9 This was adopted and approved by the IBP Board of Governors.10

We modify the foregoing findings regarding the transgression of respondent as well as the recommendation on the imposable penalty.

Rule 6.03 of the Code of Professional Responsibility Applies Only to Former Government Lawyers

Respondent cannot be found liable for violation of Rule 6.03 of the Code of Professional Responsibility. As worded, that Rule applies only to a lawyer who has left government service and in connection "with any matter in which he intervened while in said service." In PCGG v. Sandiganbayan,11 we ruled that Rule 6.03 prohibits former government lawyers from accepting "engagement or employment in connection with any matter in which [they] had intervened while in said service."

Respondent was an incumbent punong barangay at the time he committed the act complained of. Therefore, he was not covered by that provision.

Section 90 of RA 7160, Not Section 7(b)(2) of RA 6713, Governs The Practice of Profession of Elective Local Government Officials

Section 7(b)(2) of RA 6713 prohibits public officials and employees, during their incumbency, from engaging in the private practice of their profession "unless authorized by the Constitution or law, provided that such practice will not conflict or tend to conflict with their official functions." This is the general law which applies to all public officials and employees.

For elective local government officials, Section 90 of RA 716012 governs:

SEC. 90. Practice of Profession. - (a) All governors, city and municipal mayors are prohibited from practicing their profession or engaging in any occupation other than the exercise of their functions as local chief executives.

(b) Sanggunian members may practice their professions, engage in any occupation, or teach in schools except during session hours: Provided, That sanggunian members who are members of the Bar shall not:

Page 243: Municipal Corporations

Catu vs. Rellosa(1) Appear as counsel before any court in any civil case wherein a local government unit or any office, agency, or instrumentality of the government is the adverse party;

(2) Appear as counsel in any criminal case wherein an officer or employee of the national or local government is accused of an offense committed in relation to his office;

(3) Collect any fee for their appearance in administrative proceedings involving the local government unit of which he is an official; and

(4) Use property and personnel of the Government except when the sanggunian member concerned is defending the interest of the Government.

(c) Doctors of medicine may practice their profession even during official hours of work only on occasions of emergency: Provided, That the officials concerned do not derive monetary compensation therefrom.

This is a special provision that applies specifically to the practice of profession by elective local officials. As a special law with a definite scope (that is, the practice of profession by elective local officials), it constitutes an exception to Section 7(b)(2) of RA 6713, the general law on engaging in the private practice of profession by public officials and employees. Lex specialibus derogat generalibus.13

Under RA 7160, elective local officials of provinces, cities, municipalities and barangays are the following: the governor, the vice governor and members of the sangguniang panlalawigan for provinces; the city mayor, the city vice mayor and the members of the sangguniang panlungsod for cities; the municipal mayor, the municipal vice mayor and the members of the sangguniang bayan for municipalities and the punong barangay, the members of the sangguniang barangay and the members of the sangguniang kabataan for barangays.

Of these elective local officials, governors, city mayors and municipal mayors are prohibited from practicing their profession or engaging in any occupation other than the exercise of their functions as local chief executives. This is because they are required to render full time service. They should therefore devote all their time and attention to the performance of their official duties.

On the other hand, members of the sangguniang panlalawigan, sangguniang panlungsod or sangguniang bayanmay practice their professions, engage in any occupation, or teach in schools except during session hours. In other words, they may practice their professions, engage in any occupation, or teach in schools outside their session hours. Unlike governors, city mayors and municipal mayors, members of the sangguniang panlalawigan,sangguniang panlungsod or sangguniang bayan are required to hold regular sessions only at least once a week.14 Since the law itself grants them the authority to practice their professions, engage in any occupation or teach in schools outside session hours, there is no longer any need for them to secure prior permission or authorization from any other person or office for any of these purposes.

While, as already discussed, certain local elective officials (like governors, mayors, provincial board members and councilors) are expressly subjected to a total or partial proscription to practice their profession or engage in any occupation, no such interdiction is made on the punong barangay and the members of the sangguniang barangay. Expressio unius est exclusio alterius.15 Since they are excluded from any prohibition, the presumption is that they are allowed to practice their profession. And this stands to reason because they are not mandated to serve full time. In fact, the sangguniang barangay is supposed to hold regular sessions only twice a month.16

Accordingly, as punong barangay, respondent was not forbidden to practice his profession. However, he should have procured prior permission or authorization from the head of his Department, as required by civil service regulations.

A Lawyer In Government Service Who Is Not Prohibited To Practice Law Must Secure Prior Authority From The Head Of His Department

A civil service officer or employee whose responsibilities do not require his time to be fully at the disposal of the government can engage in the private practice of law only with the written permission of the head of the department concerned.17 Section 12, Rule XVIII of the Revised Civil Service Rules provides:

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Catu vs. RellosaSec. 12. No officer or employee shall engage directly in any private business, vocation, or professionor be connected with any commercial, credit, agricultural, or industrial undertaking without a written permission from the head of the Department: Provided, That this prohibition will be absolute in the case of those officers and employees whose duties and responsibilities require that their entire time be at the disposal of the Government; Provided, further, That if an employee is granted permission to engage in outside activities, time so devoted outside of office hours should be fixed by the agency to the end that it will not impair in any way the efficiency of the officer or employee: And provided, finally, that no permission is necessary in the case of investments, made by an officer or employee, which do not involve real or apparent conflict between his private interests and public duties, or in any way influence him in the discharge of his duties, and he shall not take part in the management of the enterprise or become an officer of the board of directors. (emphasis supplied)

As punong barangay, respondent should have therefore obtained the prior written permission of the Secretary of Interior and Local Government before he entered his appearance as counsel for Elizabeth and Pastor. This he failed to do.

The failure of respondent to comply with Section 12, Rule XVIII of the Revised Civil Service Rules constitutes a violation of his oath as a lawyer: to obey the laws. Lawyers are servants of the law, vires legis, men of the law. Their paramount duty to society is to obey the law and promote respect for it. To underscore the primacy and importance of this duty, it is enshrined as the first canon of the Code of Professional Responsibility.

In acting as counsel for a party without first securing the required written permission, respondent not only engaged in the unauthorized practice of law but also violated civil service rules which is a breach of Rule 1.01 of the Code of Professional Responsibility:

Rule 1.01 - A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct. (emphasis supplied)

For not living up to his oath as well as for not complying with the exacting ethical standards of the legal profession, respondent failed to comply with Canon 7 of the Code of Professional Responsibility:

CANON 7. A LAWYER SHALL AT ALL TIMES UPHOLD THE INTEGRITY AND THE DIGNITY OF THE LEGAL PROFESSION AND SUPPORT THE ACTIVITIES OF THE INTEGRATED BAR. (emphasis supplied)

Indeed, a lawyer who disobeys the law disrespects it. In so doing, he disregards legal ethics and disgraces the dignity of the legal profession.

Public confidence in the law and in lawyers may be eroded by the irresponsible and improper conduct of a member of the bar.18 Every lawyer should act and comport himself in a manner that promotes public confidence in the integrity of the legal profession.19

A member of the bar may be disbarred or suspended from his office as an attorney for violation of the lawyer's oath20 and/or for breach of the ethics of the legal profession as embodied in the Code of Professional Responsibility.

WHEREFORE, respondent Atty. Vicente G. Rellosa is hereby found GUILTY of professional misconduct for violating his oath as a lawyer and Canons 1 and 7 and Rule 1.01 of the Code of Professional Responsibility. He is therefore SUSPENDED from the practice of law for a period of six months effective from his receipt of this resolution. He is sternly WARNED that any repetition of similar acts shall be dealt with more severely.

Respondent is strongly advised to look up and take to heart the meaning of the word delicadeza.

Let a copy of this resolution be furnished the Office of the Bar Confidant and entered into the records of respondent Atty. Vicente G. Rellosa. The Office of the Court Administrator shall furnish copies to all the courts of the land for their information and guidance.

SO ORDERED.

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Quirog vs. Aumentado

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 163443             November 11, 2008

LIZA M. QUIROG and RENE L. RELAMPAGOS, petitioners vs.GOVERNOR ERICO B. AUMENTADO, respondent.

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

G.R. No. 163568             November 11, 2008

CIVIL SERVICE COMMISSION, petitioner vs.COURT OF APPEALS and GOV. ERICO B. AUMENTADO, respondents.

D E C I S I O N

LEONARDO-DE CASTRO, J.:

Before this Court are two consolidated petitions for review under Rule 45 of the Rules of Court both assailing and seeking to set aside the Court of Appeals' (CA) Decision1 dated March 31, 2003 and theResolution2 dated April 12, 2004 in CA-G.R. SP No. 70255. The Decision set aside Resolution Nos. 011812 and 020271 dated November 20, 2001 and February 22, 2002, respectively, of the Civil Service Commission in Administrative NDC No. 01-88 and reinstated the (a) June 28, 2001 Order and (b) July 23, 2001 Decision of the Civil Service Commission Regional Office No. VII.

The facts as culled from the records are as follows:

On May 28, 2001, Bohol Provincial Governor Rene L. Relampagos permanently appointed3 Liza M. Quirog as Provincial Government Department Head4 of the Office of the Bohol Provincial Agriculture (PGDH-OPA). The appointment was confirmed by the Sangguniang Panlalawigan in Resolution No. 2001-1995 on June 1, 2001. On even date, Quirog took her oath of office.

Before the issuance of the permanent appointment, the Personnel Selection Board (PSB) of the Human Resource Management and Development Office of Bohol issued a certification6 that Quirog was one of two candidates qualified for the position of PGDH-OPA.

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Quirog vs. AumentadoA copy of the Monthly Report on Personnel Actions (ROPA) covering the months of May and June 2001 of the provincial government was submitted to the Civil Service Commission Regional Office No. VII (CSCROVII), Cebu City.

In the Order dated June 28, 20017, the Director of CSCROVII invalidated Quirog's appointment as PGDH-OPA upon finding that the same was part of the bulk appointments issued by then Governor Relampagos after the May 14, 2001 elections allegedly in violation of Item No. 3(d)8 of CSC Resolution No. 010988 dated June 4, 2001. The Order pointed out that the prohibition against the issuance ofmidnight appointments was already laid down as early as February 29, 2000 in CSC Resolution No. 000550.9

Both Relampagos and Quirog moved for reconsideration of the CSCROVII Order, alleging that when the latter took her oath of office on June 1, 2001, CSC Resolution No. 010988 was not yet effective as it took effect only on June 4, 2001. They argued that the subject appointment cannot be considered a midnight appointment because it was made days before the expiration of Relampagos' term, and that Quirog was already the acting Provincial Agriculturist a year prior to said appointment or since June 19, 2000.10Besides, so they asserted, since Quirog had already taken her oath of office, assumed her duties and collected her salary for the month of June, 2001, she had already acquired a legal, not merely equitable, right to the position in question, which cannot be taken away from her either by revocation of the appointment or by removal except for cause and with previous notice and hearing.

In a decision11 dated July 23, 2001, the CSCROVII denied Quirog's and Relampagos' motion for reconsideration for lack of legal personality to file such pleading, citing Section 2, Rule VI of CSC Memorandum Circular (MC) No. 40, series of 1998. The CSCROVII explained that only the appointing officer may request reconsideration of the disapproval of an appointment by the Civil Service Commission. Even if Relampagos was the one who appointed Quirog, he could not file a motion for reconsideration because his term as governor had already expired.

Aggrieved, the petitioners in G.R. No. 163443 appealed to the Civil Service Commission (CSC) where their joint appeal was docketed as Adm. NDC No. 01-88.

On November 20, 2001, the CSC issued Resolution No. 011812,12 which granted the said joint appeal and set aside the order and decision of the CSCROVII. More specifically, the Resolution states:

WHEREFORE, the joint appeal of former Governor Rene L. Relampagos and Liza M. Quirog is hereby GRANTED. Accordingly, the decision dated July 23, 2001 of the Civil Service Commission-Regional Office No. VII and CSCRO No. VII Order dated June 28, 2001 are hereby set aside. Said Regional Office is enjoined to approve the appointment of Quirog to the position of Provincial Government Head, Office of the Provincial Agriculturist, Province of Bohol.

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Quirog vs. AumentadoAccording to the CSC, since Relampagos had ceased to be the appointing authority upon the expiration of his term as governor and incumbent Governor Erico B. Aumentado was not the official who made the subject appointment, equity dictates that the appointee Quirog be allowed to question the decision to obviate possible damage or injury to the delivery of public service. The CSC also declared that the appointment of Quirog was not a midnight appointment as it was not hurriedly issued nor did it subvert the policies of the incoming administration. The CSC relaxed the application of Item 3(a)13 in CSC Resolution 01-0988 requiring that appointments should have gone through the regular screening by the PSB before the election ban or the prohibited period from March 30, 2001 to May 14, 2001. After noting that the selection board only deliberated upon Quirog's qualifications on May 24, 2001, or after the election ban, the CSC ratiocinated that the spirit, rather than the letter of the said rule should prevail as long as the case did not involve a midnight appointment proscribed by Aytona v. Castillo, et al.14 Lastly, the CSC justified Quirog's appointment even though such was included among 46 post-election appointments because of the need to immediately fill up in a permanent capacity the vacant position of Provincial Agriculturist and the fact that Governor Aumentado expressly declared his trust and confidence in Quirog in his Memorandum No. 115 dated July 2, 2001.

On December 10, 2001, incumbent Bohol Governor Erico B. Aumentado filed an amended Motion for Reconsideration16 of the CSC Resolution No. 011812. He insisted that Quirog and Relampagos had no legal personality to file a motion for reconsideration of the disapproved appointment or to appeal the same. He insisted that Quirog's appointment was a midnight appointment. Aumentado added that the selection board which screened Quirog's qualifications was not validly constituted and that the subject appointment was made more than six months from the time it was published on July 23, 2000 in violation of CSC Resolution No. 01011417 dated January 10, 2001. Aumentado insisted that Relampagos made 97, not 46, mass appointments on the eve of his term, 95 of which were invalidated by the CSC Bohol Field Office and two, including that of Quirog, by the CSCROVII.

In Resolution No. 02027118 dated February 22, 2002, the CSC denied Aumentado's motion for reconsideration. Aumentado then filed a petition for review19 under Rule 43 of the Rules of Court with the CA where it was docketed as CA-G.R. SP No. 70255.

On March 31, 2003, the CA rendered the herein challenged Decision,20 granting Aumentado's petition. The CA reversed and set aside CSC Resolution No. 011812 and ruled that Quirog's appeal should have been dismissed outright for lack of legal personality:

WHEREFORE, based on the foregoing premises, the instant petition is hereby GRANTED, the assailed CSC Resolution Nos. 011812 and 020271, dated November 20, 2001 and February 22, 2002 respectively, are REVERSED and SET ASIDE. The CSCROVII's June 28, 2001 Order and its July 23, 2001 Decision are hereby REINSTATED.

SO ORDERED.

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Quirog vs. AumentadoOn April 12, 2004, the CA rendered the second assailed Resolution,21 denying Quirog and Relampagos' motion for reconsideration.

From the adverse decision of the CA, the CSC as well as Relampagos and Quirog interposed separate petitions for review on certiorari. Relampagos and Quirog's petition22 filed on June 25, 2004, was docketed as G.R. No. 163443, while the CSC's petition23 filed on July 8, 2004, was docketed as G.R. No. 163568.

In the Resolution24 dated July 13, 2004, the Court ordered the consolidation of the two petitions.

The consolidated petitions present the following issues for the Court's resolution: (1) whether or not petitioners Relampagos and Quirog have the legal standing to file a motion for reconsideration of, or appeal from, the disapproval of the latter's appointment by the Civil Service Commission, (2) whether or not Quirog's appointment violated Item 3 of CSC Resolution No. 010988 dated June 4, 2001, and 3) whether or not the subject appointment was a midnight appointment.

In the herein challenged decision, the CA held that only the appointing authority could challenge the CSC's disapproval of an appointment. In arriving at such a conclusion, the CA relied solely on Section 2 of Rule VI of CSC Memorandum Circular (MC) No. 40, series of 199825 which provides:

Sec. 2. Requests for reconsideration of, or appeal from, the disapproval of an appointment may be made by the appointing authority and submitted to the Commission within fifteen (15) days from receipt of the disapproved appointment.

The petitioners share the view that the word may in the afore-quoted provision simply means that a request for reconsideration or appeal from a disapproved appointment is not vested exclusively in the appointing authority and that Quirog's appeal should have been given due course because she was the real party-in-interest, being the one aggrieved by the disapproval of the appointment.

Petitioners Quirog and Relampagos contend that their appeal before the CA should not have been dismissed on a mere technicality such as lack of legal personality. They argued that litigants must be afforded full opportunity for the adjudication of their case on the merits.

The CSC for its part, pointed out that in previously decided cases, the CSC allowed the appointees to take relief from the disapproval of their appointments as an exception to the rule on legal standing.

Upon the other hand, respondent Aumentado maintains that the controlling rule on the matter of legal standing is the afore-cited Section 2, Rule VI, CSC MC No. 40, series of 1998. He anchors his argument in Mathay, Jr. v. Civil Service Commission,26 where the

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Quirog vs. AumentadoCourt laid down the ruling that only the appointing authority can request for reconsideration of a CSC-disapproved appointment.

The Court rules for the petitioners.

In the recent case of Abella, Jr. v. Civil Service Commission,27 the Court declared that both the appointing authority and the appointee are equally real parties in interest who have the requisite legal standing to bring an action challenging a CSC disapproval of an appointment. In said case, we held that:

The CSC's disapproval of an appointment is a challenge to the exercise of the appointing authority's discretion. The appointing authority must have the right to contest the disapproval. Thus, Section 2 of Rule VI of CSC Memorandum Circular 40, s. 1998 is justified insofar as it allows the appointing authority to request reconsideration or appeal.

x x x

Although the earlier discussion demonstrates that the appointing authority is adversely affected by the CSC's Order and is a real party in interest, the appointee is rightly a real party in interest too. He is also injured by the CSC disapproval, because he is prevented from assuming the office in a permanent capacity. Moreover, he would necessarily benefit if a favorable judgment is obtained, as an approved appointment would confer on him all the rights and privileges of a permanent appointee.

x x x

Section 2 of Rule VI of CSC Memorandum Circular 40, s. 1998 should not be interpreted to restrict solely to the appointing authority the right to move for a reconsideration of, or to appeal, the disapproval of an appointment. PD 807 and EO 292, from which the CSC derives the authority to promulgate its rules and regulations, are silent on whether appointees have a similar right to file motions for reconsideration of, or appeals from, unfavorable decisions involving appointments. Indeed, there is no legislative intent to bar appointees from challenging the CSC's disapproval.

The view that only the appointing authority may request reconsideration or appeal is too narrow. The appointee should have the same right. Parenthetically, CSC Resolution 99-1936 recognizes the right of the adversely affected party to appeal to the CSC Regional Offices prior to elevating a matter to the CSC Central Office. The adversely affected party necessarily includes the appointee.28

Also, in Abella, Jr, we held that the right of the appointee to seek reconsideration or appeal was not the main issue in Mathay:

This judicial pronouncement does not override Mathay v. Civil Service Commission xxx. The Court merely noted in passing -- by way of obiter -- that based on a similar provision, only the

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Quirog vs. Aumentadoappointing officer could request reconsideration of actions taken by the CSC on appointments.

In that case, Quezon City Mayor Ismael A. Mathay Jr. sought the nullification of CSC Resolutions that recalled his appointment of a city government officer. He filed a Petition assailing the CA Decision, which had previously denied his Petition for Certiorari for being the wrong remedy and for being filed out of time. We observed then that the CSC Resolutions were already final and could no longer be elevated to the CA. Furthermore, Mathay's Petition for Certiorari filed with the CA was improper, because there was an available remedy of appeal. And the CSC could not have acted without jurisdiction, considering that it was empowered to recall an appointment initially approved.

The right of the appointee to seek reconsideration or appeal was not the main issue in Mathay. At any rate, the present case is being decided en banc, and the ruling may reverse previous doctrines laid down by this Court. 29

Clearly, pursuant to Abella, Jr., Quirog had the right to ask for reconsideration of, or to appeal the adverse ruling of CSCROVII. In contrast, Relampagos, by reason of the expiration of his term as governor, had lost the legal personality to contest the disapproval of the appointment.

As to the validity of Quirog's appointment, the CSCROVII disapproved Quirog's appointment for non-compliance with Item No. 3 of CSC Resolution No. 010988 dated June 4, 2001. Item No. 3 refers to the disapproval of appointments unless certain requisites are complied with. Item No. 3 reads:

3. All appointments, whether original, transfer, reemployment, reappointment, promotion or demotion, x x x which are issued AFTER the elections, regardless of their dates of effectivity and/or date of receipt by the Commission, x x x shall be disapproved unless the following requisites concur relative to their issuance:

a) The appointment has gone through the regular screening by the Personnel Selection Board (PSB) before the prohibited period on the issuance of appointments as shown by the PSB report or minutes of its meeting;

b) That the appointee is qualified;

c) There is a need to fill up the vacancy immediately in order not to prejudice public service and/or endanger public safety;

d) That the appointment is not one of those mass appointments issued after the elections.

The CSC ruled that the promotional appointment extended to Quirog by Governor Relampagos was not violative of the aforesaid CSC Resolution. This interpretation by the

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Quirog vs. AumentadoCSC of its own rules should be given great weight and consideration for after all, it is the agency tasked with interpreting or applying the same.

Records disclose that on May 28, 2001, the PSB of the Human Resource Management and Development Office of Bohol, issued a certification30 that Quirog was one of two candidates qualified for the position of PGDH-OPA. On the same day, Quirog was appointed by then Governor Relampagos and on June 1, 2001, she took her oath of office. CSC Resolution No. 010988 was issued three days later, or on June 4, 2001. Evidently, the CSCROVII should not have subjected Quirog's appointment to the requirements under said resolution, as its application is against the prospective application of laws. Having no provision regarding its retroactive application to appointments made prior to its effectivity, CSC Resolution No. 010988 must be taken to be of prospective application. As we have held time and again:

Since the retroactive application of a law usually divests rights that have already become vested, the rule in statutory construction is that all statutes are to be construed as having only a prospective operation unless the purpose and intention of the legislature to give them a retrospective effect is expressly declared or is necessarily implied from the language used.31

Prescinding therefrom, it cannot be said that Quirog's appointment violated CSC Resolution No. 010988, the said Resolution having taken effect after the questioned appointment was extended.

It cannot also be said that Quirog's appointment was a midnight appointment. The constitutional prohibition on so-called midnight appointments, specifically, those made within two (2) months immediately prior to the next presidential elections, applies only to the President or Acting President.32

As the Court ruled in De Rama v. CA33:

The records reveal that when the petitioner brought the matter of recalling the appointments of the fourteen (14) private respondents before the CSC, the only reason he cited to justify his action was that these were midnight appointments that are forbidden under Article VII, Section 15 of the Constitution. However, the CSC ruled, and correctly so, that the said prohibition applies only to presidential appointments. In truth and in fact, there is no law that prohibits local elective officials from making appointments during the last days of his or her tenure.

We, however, hasten to add that the aforementioned ruling does not mean that the raison d' etre behind the prohibition against midnight appointments may not be applied to those made by chief executives of local government units, as here. Indeed, the prohibition is precisely designed to discourage, nay, even preclude, losing candidates from issuing appointments merely for partisan purposes thereby depriving the incoming administration of the opportunity to make the corresponding appointments in line with its new policies. As we held in Aytona v. Castillo:

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Quirog vs. AumentadoThe filling up of vacancies in important positions, if few, and so spaced as to afford some assurance of deliberate action and careful consideration of the need for the appointment and the appointee's qualifications may undoubtedly be permitted. But the issuance of 350 appointments in one night and the planned induction of almost all of them in a few hours before the inauguration of the new President may, with some reason, be regarded by the latter as an abuse of Presidential prerogatives, the steps taken being apparently a mere partisan effort to fill all vacant positions irrespective of fitness and other conditions, and thereby to deprive the new administration of an opportunity to make the corresponding appointments.34 (Emphasis ours)

The appointment of Quirog cannot be categorized as a midnight appointment. For it is beyond dispute that Quirog had been discharging and performing the duties concomitant with the subject position for a year prior to her permanent appointment thereto. Surely, the fact that she was only permanently appointed to the position of PGDH-OPA after a year of being the Acting Provincial Agriculturist more than adequately shows that the filling up of the position resulted from deliberate action and a careful consideration of the need for the appointment and the appointee's qualifications. The fact that Quirog had been the Acting Provincial Agriculturist since June 2000 all the more highlights the public need for said position to be permanently filled up.

Besides, as correctly held by the CSC:

A careful evaluation of the circumstances obtaining in the issuance of the appointment of Quirog shows the absence of the element of hurriedness on the part of former Governor Relampagos which characterizes a midnight appointment. There is also wanting in the records of the case the subversion by the former governor of the policies of the incumbent Governor Erico Aumentado as a logical consequence of the issuance of Quirog's appointment by the latter. Both elements are the primordial considerations by the Supreme Court when it laid down its ruling in prohibiting midnight appointments in the landmark case of Aytona vs Castillo, et. al.35

In any event, respondent Governor Aumentado, in a Memorandum36 dated March 4, 2003, has reinstated Quirog to the permanent position of PGDH-OPA. Such act of respondent bespeaks of his acceptance of the validity of Quirog's appointment and recognition that indeed, the latter is qualified for the subject position.

WHEREFORE, the assailed Decision dated March 31, 2003 and the Resolution dated April 12, 2004 of the Court of Appeals are REVERSED AND SET ASIDE and CSC Resolution Nos. 011812 and 020271 dated November 20, 2001 and February 22, 2002, respectively, are AFFIRMED.

SO ORDERED.

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Laceda Sr. Vs. Limena

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 182867             November 25, 2008

ROBERTO LACEDA, SR., petitioner, vs.RANDY L. LIMENA and COMMISSION ON ELECTIONS, respondents.

R E S O L U T I O N

QUISUMBING, J.:

From this Court's June 10, 2008 Resolution1 dismissing his petition for certiorari, petitioner Roberto Laceda, Sr. filed the instant motion for reconsideration,2 insisting that the Commission on Elections (COMELEC) committed grave abuse of discretion in issuing the Resolutions dated January 15, 20083and May 7, 20084 in SPA No. 07-028 (BRGY).

The facts are as follows:

Petitioner Roberto Laceda, Sr., and private respondent Randy L. Limena were candidates for Punong Barangay of Barangay Panlayaan, West District, Sorsogon City, during the October 29, 2007 Barangay and Sangguniang Kabataan Elections. On October 23, 2007, Limena filed a petition for disqualification and/or declaration as an ineligible candidate5 against Laceda before the COMELEC, contending that Laceda had already served as Punong Barangay for Brgy. Panlayaan for three consecutive terms since 1994, and was thus prohibited from running for the fourth time under Section 2 of Republic Act No. 91646which provides:

SEC. 2. Term of Office.-The term of office of all barangay and sangguniang kabataan officials after the effectivity of this Act shall be three (3) years.

No barangay elective official shall serve for more than three (3) consecutive terms in the same position: Provided, however, That the term of office shall be reckoned from the 1994 barangay elections. Voluntary renunciation of office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which the elective official was elected.

Limena likewise attached the following certification from the Department of the Interior and Local Government:

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Laceda Sr. Vs. LimenaTHIS IS TO CERTIFY that per records in this office HON. ROBERTO LACEDA, SR., incumbent Punong Barangay of Panlayaan, West District, Sorsogon City. …was elected as Punong Barangay during the May 9, 1994, May 12, 1997 and July 15, 2002 Barangay Elections. He resigned from office on March 20, 1995 to run as Municipal Councilor. Hence, he is covered by the three-term rule of paragraph 2, Section 2 of RA 9164 which provides that: "No barangay elective official shall serve for more than three (3) consecutive terms in the same position: Provided, however, that the term of office shall be reckoned from the 1994 barangay elections. Voluntary renunciation of office [for] any length of time shall not be considered as an interruption in the continuity of service for the full term for which the elective official was elected."7

x x x x

In his Answer,8 Laceda admitted having served as Punong Barangay of Panlayaan for three consecutive terms. However, he asserted that when he was elected for his first two terms, Sorsogon was still a municipality, and that when he served his third term, the Municipality of Sorsogon had already been merged with the Municipality of Bacon to form a new political unit, the City of Sorsogon, pursuant to Republic Act No. 8806.9 Thus, he argued that his third term was actually just his first in the new political unit and that he was accordingly entitled to run for two more terms.

Laceda likewise argued that assuming he had already served three consecutive terms, Rep. Act No. 9164 which imposes the three-term limit, cannot be made to apply to him as it would violate his vested right to office. He alleged that when he was elected in 1994 the prohibition did not exist. Had he known that there will be a law preventing him to run for the fourth time, he would not have run for office in 1994 as he was looking forward to the election in 2007.10

On January 15, 2008, the COMELEC declared Laceda disqualified and cancelled his certificate of candidacy:

WHEREFORE, this Commission RESOLVED, as it hereby RESOLVED, to declare Respondent Roberto Laceda, Sr. DISQUALIFIED from running as Punong Barangay of Panlayaan, West District, Sorsogon City and consequently denies due course and cancels his Certificate of Candidacy.

SO ORDERED.11

Laceda moved for reconsideration, but his motion was denied by the COMELEC in a Resolution dated May 7, 2008. Aggrieved, Laceda filed a petition for certiorari before this Court.

On June 10, 2008, this Court dismissed the petition for failure to sufficiently show that any grave abuse of discretion was committed by the COMELEC in rendering the assailed Resolutions of January 15, 2008 and May 7, 2008. Hence, this motion for reconsideration.

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Laceda Sr. Vs. LimenaLaceda insists that the COMELEC committed grave abuse of discretion in basing its decision on the requisites enunciated in Lonzanida v. Commission on Elections12 for the application of the three-term prohibition in Section 4313 of the Local Government Code.14 Laceda argues that said case is inapplicable since it involved the position of municipal mayor while the instant case concerned the position of Punong Barangay. He likewise insists that he served his third term in a new political unit and therefore he should not be deemed already to have served a third term as Punong Barangay for purposes of applying the three-term limit.15

For reasons hereafter discussed, the motion for reconsideration cannot prosper.

Section 2 of Rep. Act No. 9164, like Section 43 of the Local Government Code from which it was taken, is primarily intended to broaden the choices of the electorate of the candidates who will run for office, and to infuse new blood in the political arena by disqualifying officials from running for the same office after a term of nine years. This Court has held that for the prohibition to apply, two requisites must concur: (1) that the official concerned has been elected for three consecutive terms in the same local government post and (2) that he or she has fully served three consecutive terms.16

In this case, while it is true that under Rep. Act No. 8806 the municipalities of Sorsogon and Bacon were merged and converted into a city thereby abolishing the former and creating Sorsogon City as a new political unit, it cannot be said that for the purpose of applying the prohibition in Section 2 of Rep. Act No. 9164, the office of Punong Barangay of Barangay Panlayaan, Municipality of Sorsogon, would now be construed as a different local government post as that of the office of Punong Barangay of Barangay Panlayaan, Sorsogon City. The territorial jurisdiction of Barangay Panlayaan, Sorsogon City, is the same as before the conversion. Consequently, the inhabitants of the barangay are the same. They are the same group of voters who elected Laceda to be their Punong Barangay for three consecutive terms and over whom Laceda held power and authority as their Punong Barangay. Moreover, Rep. Act No. 8806 did not interrupt Laceda's term.

In Latasa v. Commission on Elections,17 which involved a similar question, this Court held that where a person has been elected for three consecutive terms as a municipal mayor and prior to the end or termination of such three-year term the municipality has been converted by law into a city, without the city charter interrupting his term until the end of the three-year term, the prohibition applies to prevent him from running for the fourth time as city mayor thereof, there being no break in the continuity of the terms.

Thus, conformably with the democratic intent of Rep. Act No. 9164 and this Court's ruling in Latasa v. Commission on Elections, we hold that the prohibition in Section 2 of said statute applies to Laceda. The COMELEC did not err nor commit any abuse of discretion when it declared him disqualified and cancelled his certificate of candidacy.

WHEREFORE, petitioner Roberto Laceda, Sr.'s Motion for Reconsideration18 dated July 25, 2008 assailing this Court's Resolution dated June 10, 2008 is DENIED with FINALITY.

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Laceda Sr. Vs. LimenaSO ORDERED.

Page 257: Municipal Corporations

Ong vs. Alegre

EN BANC  

FRANCIS G. ONG,                            G.R. No. 163295                                                              Petitioner,      

Present:                                                       

             PANGANIBAN, C.J.             PUNO,             QUISUMBING,             YNARES-SANTIAGO,

                                                     SANDOVAL-GUTIERREZ,                - versus -                              CARPIO                                                             AUSTRIA-MARTINEZ,                                                             CORONA,                                                             CARPIO MORALES,                                                             CALLEJO, SR.,                                                             AZCUNA,                                                             TINGA,                                                             CHICO-NAZARIO, and                                                               GARCIA, JJ. JOSEPH STANLEY ALEGRE and       Promulgated:COMMISSION ON ELECTIONS,                              Respondents.          January 23, 2006x - - - - - - - - - - - - - - - - - - - - - x 

ROMMEL G. ONG,                        Petitioner,  

- versus  -                         G.R. No. 163354  

JOSEPH STANLEY ALEGRE andCOMMISSION ON ELECTIONS,                                Respondents.                   x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

D E C I S I O N

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Ong vs. Alegre

  

GARCIA, J.:  

        Before the Court are these two separate petitions under Rule 65 of the

Rules of Court to nullify and set aside certain issuances of the Commission on

Elections (COMELEC) en banc. 

         The first, docketed as G.R. No. 163295, is a petition for certiorari with

petitioner Francis G. Ong impugning the COMELEC en bancresolution[1] dated

May 7, 2004 in SPA Case No. 04-048, granting private respondent Joseph

Stanley Alegre's motion for reconsideration of the resolution dated March 31,

2004[2] of the COMELEC’s First Division. 

        The second, G.R. No. 163354, is for certiorari, prohibition and

mandamus, with application for injunctive relief, filed by petitioner Rommel

Ong, brother of Francis, seeking, among other things, to stop the COMELEC

from enforcing and implementing its aforesaid May 7, 2004 en banc resolution

in SPA Case No. 04-048 pending the outcome of the petition in G.R. No.

163295. 

        Per its en banc Resolution of June 1, 2004, the Court ordered the

consolidation of these petitions.  

The recourse stemmed from the following essential and undisputed

factual backdrop: 

        Private respondent Joseph Stanley Alegre (Alegre) and

petitioner Francis Ong (Francis) were candidates who filed certificates of

candidacy for mayor of San Vicente, Camarines Norte in the May 10, 2004

elections. Francis was then the incumbent mayor.  

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Ong vs. Alegre

        On January 9, 2004, Alegre filed with the COMELEC Provincial Office

a Petition to Disqualify, Deny Due Course and Cancel Certificate of

Candidacy[3] of Francis.  Docketed as SPA Case No. 04-048, the petition to

disqualify was predicated on the three-consecutive term rule, Francis having,

according to Alegre, ran in the May 1995, May 1998, and May 2001 mayoralty

elections and have assumed office as mayor and discharged the duties

thereof for three (3) consecutive full terms corresponding to those elections. 

To digress a bit, the May 1998 elections saw both Alegre and Francis

opposing each other for the office of mayor of San Vicente, Camarines Norte,

with the latter being subsequently proclaimed by COMELEC winner in that

contest.  Alegre subsequently filed an election protest, docketed as Election

Case No. 6850 before the Regional Trial Court (RTC) at Daet, Camarines

Norte.  In it, the RTC declared Alegre as the duly elected mayor in that 1998

mayoralty contest,[4] albeit the decision came out only on July 4, 2001, when

Francis had fully served the 1998-2001 mayoralty term and was in fact 

already starting to serve the 2001-2004  term as mayor-elect  of the

municipality of San Vicente. 

        Acting on Alegre’s petition to disqualify and to cancel Francis’ certificate

of candidacy for the May 10, 2004 elections, the First Division of the COMELEC

rendered on March 31, 2004 a resolution[5] dismissing the said petition of

Alegre, rationalizing as follows: 

        We see the circumstances in the case now before us analogous to those obtaining in the sample situations addressed by the Highest

Court in the Borja case. Herein, one of the requisites for the application of the three term rule is not present. Francis Ong might have indeed fully served the mayoral terms of 1995 to 1998; 1998 to 2001 and 2001 to 2004. The mayoral term however, from 1998 to 2001 cannot be considered his because he was not duly elected thereto. The [RTC] of Daet, Camarines Norte, Branch 41 has voided his election for the 1998 term when it held, in its decision that Stanley Alegre was the “legally elected mayor in the 1998 mayoralty election in San Vicente, Camarines Norte.”  This disposition had become final after the [COMELEC] dismissed the appeal filed by Ong, the case having become moot and academic. xxx xxx xxx On the basis of the words of the Highest Court pronounced in the Lonzanida case and applicable in the case at bench, Ong could not be considered as having served as mayor from 1998 to 2001 because “he was not duly elected to the post; he merely assumed office as a presumptive winner; which presumption was later overturned … when [the RTC] decided with finality that [he] lost in the May 1998 elections.” (Words in bracket and emphasis in the original).

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Ong vs. Alegre

          Undaunted, Alegre filed a timely motion for reconsideration, contending,

in the main, that there was a misapplication of the three-term rule, as applied

in the cited cases of Borja vs. Comelec and Lonzanida vs. Comelec, infra.  

        On May 7, 2004, the COMELEC en banc issued, in SPA No. 04-048, a

resolution[6] reversing the March 31, 2004 resolution of the COMELEC’s First

Division and thereby (a) declaring Francis “as disqualified to run for mayor of

San Vicente, Camarines Norte in the …May 10, 2004”; (b) ordering the

deletion of Francis’ name from the official list of candidates; and (c) directing

the concerned board of election inspectors not to count the votes cast in his

favor.           

The following day, May 8,  Francis received a fax machine copy of the

aforecited May 7, 2004  resolution, sending him posthaste to  seek the

assistance of his political party, the Nationalist People’s Coalition, which

immediately nominated his older brother, Rommel Ong(Rommel), as

substitute candidate.  At about 5:05 p.m. of the very same day - which is past

the deadline for filing a certificate of candidacy, Rommel filed his own

certificate of candidacy for the position of mayor, as substitute candidate for

his brother Francis. 

The following undisputed events then transpired: 1. On May 9, 2004, or a day before the May 10 elections, Alegre filed a Petition to Deny Due Course to or Cancel Certificate of

Rommel Ong. 

  2.  Atty. Evillo C. Pormento, counsel for the Ong brothers, addressed a letter [7] to Provincial Election Supervisor (PES) of

Camarines Norte Liza Z. Cariño and Acting Election Officer Emily G. Basilonia in which he appealed that, owing to the COMELEC’s inaction on Alegre's petition to cancel Rommel’s certificate of candidacy, the name “Rommel Ong” be included in the official certified list of candidates for mayor of San Vicente, Camarines Norte.  The desired listing was granted by the PES Carino.

  3. On May 10, 2004, Alegre wrote[8] to then COMELEC Commissioner Virgilio Garcillano, Commissioner-in-Charge for Regions IV

and V, seeking clarification on the legality of the action thus taken by the PES Cariño. Responding, Commissioner Garcillano issued a Memorandum under date May 10, 2004[9] addressed to PES Liza D. Zabala-Cariño, ordering her to implement the resolution of the COMELEC en banc in SPA No. 04-048 promulgated on May 7, 2004.[10]  Said Memorandum partly stated:

 The undersigned ADOPTS the recommendation of Atty. Alioden D. Dalaig [Director IV, Law Department], which he quote your

stand, "that substitution is not proper if the certificate of the substituted candidacy is denied due course. In the Resolution of the Commission En banc, the Certificate of candidacy of Francis Ong was denied due course," and elaborated further that:

"x x x there is an existing policy of the Commission not to include the name of a substitute candidate in the certified

list of candidates unless the substitution is approved by the Commission.

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Ong vs. Alegre In view, thereof, it is recommended that 1) the substitute certificate of candidacy of Rommel Ong Gan Ong,

should be denied due course; and 2) the election officer be directed to delete his name from the list of candidates."

The above position of the Commission was in line with the pronouncement of Supreme Court in Miranda vs. Abaya (311 SCRA 617) which states:

"There can no valid substitution where a candidate is excluded not only by disqualification but also by denial and

cancellation of his certificate of candidacy."

In view thereof, you are hereby directed to faithfully implement the said Resolution of the Commission En Banc in SPA No. 04-048 promulgated on May 7, 2004. (Emphasis in the original; words in bracket added].

4. Owing to the aforementioned Garcillano Memorandum, it would seem that the Chairman of the Municipal Board of Canvasser

of San Vicente issued an order enjoining all concerned not to canvass the votes cast for Rommel, prompting the latter to file a protest with that Board.[11]

 5. On May 11, 2004, the Municipal Board of Canvassers proclaimed Alegre as the winning candidate for the mayoralty post in

San Vicente, Camarines Norte.[12]

  

On May 12, 2004, Francis filed before the Court a petition for certiorari,

presently docketed as G.R. No. 163295. His brother Rommel’s petition

in G.R. No. 163354 followed barely a week after. 

   In our en banc resolution dated June 1, 2004, G.R. No.

163295 and G.R. No. 163354 were consolidated.[13]

 

Meanwhile, on June 4, 2004, the COMELEC issued an order dismissing

private respondent Alegre’s Petition to Deny Due Course to or Cancel

Certificate of Candidacy of Rommel Ong, for being moot and academic.[14]  

The issues for resolution of the Court are: 

        In G.R. No. 163295, whether the COMELEC acted with grave abuse of

discretion amounting to lack or excess of jurisdiction in issuing its en

banc resolution dated May 7, 2004 declaring petitioner Francis as disqualified

to run for Mayor of San Vicente, Camarines Norte in the May 10, 2004

elections and consequently ordering the deletion of his name from the official

list of candidates so that any vote cast in his favor shall be considered stray. 

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Ong vs. Alegre

        In G.R. No. 163354, whether the COMELEC committed grave abuse of

discretion when it denied due course to Rommel’s certificate of candidacy in

the same mayoralty election as substitute for his brother Francis. 

        A resolution of the issues thus formulated hinges on the question of

whether or not petitioner Francis’s assumption of office as Mayor of San

Vicente, Camarines Norte for the mayoralty term  1998 to 2001 should be

considered as full service for the purpose of the three-term limit rule. 

Respondent COMELEC resolved the question in the affirmative. Petitioner

Francis, on the other hand, disagrees. He argues that, while he indeed

assumed office and discharged the duties as Mayor of San Vicente for three

consecutive terms, his proclamation as mayor-elect in the May 1998 election

was contested and eventually nullified per the decision of the RTC of Daet,

Camarines Norte dated July 4, 2001. Pressing the point, petitioner argues,

citing Lonzanida vs. Comelec[15], that a proclamation subsequently declared

void is no proclamation at all and one assuming office on the strength of a

protested proclamation does so as a presumptive winner and subject to the

final outcome of the election protest. 

        The three-term limit rule for elective local officials is found in Section 8,

Article X of the 1987 Constitution, which provides: 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.

Section 43 (b) of the Local Government Code restates the same rule as

follows: Sec. 43. Term of Office. xxx xxx xxx (b) No local elective official shall serve for more than three consecutive years in the same position. Voluntary renunciation of the office for any length of time shall not be considered an interruption in the continuity of service for the full term for which the elective official concerned was elected.

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Ong vs. Alegre

        For the three-term limit for elective local government officials to apply,

two conditions or requisites  must concur, to wit: (1) that the official

concerned has been elected for three (3)  consecutive terms in the same local

government post, and  (2) that he has fully served three (3) consecutive

terms.[16]

 

        With the view we take of the case, the disqualifying requisites are

present herein, thus effectively barring petitioner Francis from running for

mayor of San Vicente, Camarines Norte in the May 10, 2004 elections. There

can be no dispute about petitioner Francis Ong having been duly elected

mayor of that municipality in the May 1995 and again in the May 2001

elections and serving the July 1, 1995- June 30, 1998 and the July 1, 2001-June

30, 2004 terms in full.  The herein controversy revolves around the 1998-2001

mayoral term, albeit there can also be no quibbling that Francis ran for mayor

of the same municipality in the May 1998 elections and actually served  the

1998-2001 mayoral term by virtue of a proclamation initially declaring him

mayor-elect of the municipality of San Vicente.  The question that begs to

be addressed, therefore, is whether or not  Francis’s assumption of

office as Mayor of San Vicente, Camarines Norte from July 1, 1998 to

June 30, 2001, may be considered as one full term service in the

context of the consecutive three-term limit rule. 

        We hold that such assumption of office constitutes, for Francis, “service

for the full term”, and should be counted as a full term served in

contemplation of the three-term limit prescribed by the constitutional and

statutory provisions, supra, barring local elective officials from being elected

and serving for more than three consecutive term for the same position.   

        It is true that the RTC-Daet, Camarines Norte ruled in Election Protest

Case No. 6850,[17]  that it was Francis’ opponent (Alegre) who “won” in the

1998 mayoralty race and, therefore, was the legally elected mayor of San

Vicente. However, that disposition, it must be stressed, was without practical

and legal use and value, having been promulgated after the term of the

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Ong vs. Alegre

contested office has expired.  Petitioner Francis’ contention that he was only a

presumptive winner in the 1998 mayoralty derby as his proclamation was

under protest did not make him less than a duly elected mayor. His

proclamation by the Municipal Board of Canvassers of San Vicente as the duly

elected mayor in the 1998 mayoralty election coupled by his assumption of

office and his continuous exercise of the functions thereof from start to finish

of the term, should  legally be taken as service for a full term in contemplation

of the three-term rule. 

        The absurdity and the deleterious effect of a contrary view is not hard to

discern. Such contrary view would mean that Alegre would – under the three-

term rule - be considered as having  served a term by virtue of a veritably

meaningless electoral protest ruling, when another actually served such term

pursuant to a proclamation made in due course after an election.      

Petitioner cites, but, to our mind, cannot seek refuge from the Court’s

ruling in, Lonzanida vs. Comelec,[18] citing Borja vs. Comelec[19].  In Lonzanida,

petitioner Lonzanida was elected and served for two consecutive terms as

mayor of San Antonio, Zambales prior to the May 8, 1995 elections.  He then

ran again for the same position in the May 1995 elections, won and

discharged his duties as Mayor.  However, his opponent contested his

proclamation and filed an election protest before the RTC of Zambales, which,

in a decision dated January 9, 1997, ruled that there was a failure of elections

and declared the position vacant.  The COMELEC affirmed this ruling and

petitioner Lonzanida acceded to the order to vacate the post.  Lonzanida

assumed the office and performed his duties up to March 1998 only.  Now,

during the May 1998 elections, Lonzanida again ran for mayor of the same

town.  A petition to disqualify, under the three-term rule, was filed and was

eventually granted. There, the Court held that Lonzanida cannot be

considered as having been duly elected to the post in the May 1995 election,

and that he did not fully serve the 1995-1998 mayoralty term by reason of

involuntary relinquishment of office.  As the Court pointedly observed,

Lonzanida “cannot be deemed to have served the May 1995 to 1998 term

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Ong vs. Alegre

because he was ordered to vacate [and in fact vacated] his post  before the

expiration of the term.” 

 The difference between the case at bench and Lonzanida is at once

apparent. For one, in Lonzanida, the result of the mayoralty election was

declared a nullity for the stated reason of “failure of election”, and, as a

consequence thereof, the proclamation of Lonzanida as mayor-elect was

nullified, followed by an order for him to vacate the office of mayor. For

another, Lonzanida did not fully serve the 1995-1998 mayoral term, there

being an involuntary severance from office as a result of legal processes. In

fine, there was an effective interruption of the continuity of service. 

On the other hand, the failure-of-election factor does not obtain in the

present case. But more importantly, here, there was actually no interruption

or break in the continuity of  Francis’ service respecting the 1998-2001 term. 

Unlike Lonzanida, Francis was never unseated during the term in question; he

never ceased discharging his duties and responsibilities as mayor of San

Vicente, Camarines Norte for the entire period covering the 1998-2001 term. 

The ascription, therefore, of grave abuse of discretion on the part of the

COMELEC en banc when it disqualified Francis from running in the May 10,

2004 elections for the mayoralty post of San Vicente and denying due course

to his certificate of candidacy by force of the constitutional and statutory

provisions regarding the three-term limit rule for any local elective official

cannot be sustained.  What the COMELEC en banc said in its May 7, 2004

assailed Resolution commends itself for concurrence: 

As correctly pointed out by Petitioner-Movant [Alegre]in applying the ruling in the Borja and Lonzanida cases in the instant petition will be erroneous because the factual milieu in those cases is different from the one obtaining here.  Explicitly, the three-term limit was not made applicable in the cases of Borja and Lonzanida because there was an interruption in the continuity of service of the three consecutive terms.  Here, Respondent Ong would have served continuously for three consecutive terms, from 1995 to 2004.  His full term from 1998 to 2001 could not be simply discounted on the basis that he was not duly elected thereto on account of void proclamation because it would have iniquitous effects producing outright injustice and inequality as it rewards a legally disqualified and repudiated loser with a crown of victory. (Word in bracket added; emphasis in the original)

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Ong vs. Alegre 

          Given the foregoing consideration, the question of whether or not then Commissioner Virgilio Garcillano overstepped his discretion when he issued the May 10, 2004 Memorandum, ordering the implementation of aforesaid May 7, 2004 COMELEC en banc resolution even before its finality[20] is now of little moment and need not detain us any longer.

        Just as unmeritorious as Francis’ petition in G.R. No. 163295 is Rommel’s petition in G.R. No. 163354 in which he (Rommel) challenges the COMELEC's act of not including his name as a substitute candidate in the official list of candidates for the May 10, 2004 elections. As it were, existing COMELEC policy[21] provides for the non-inclusion of the name of substitute candidates in the certified list of candidates pending approval of the  substitution.

 

        Not to be overlooked is the Court’s holding in Miranda vs. Abaya,[22]  that a candidate whose certificate of candidacy has been cancelled or not given due course cannot be substituted by another belonging to the same political party as that of the former, thus:

 While there is no dispute as to whether or not a nominee of a registered or accredited

political party may substitute for a candidate of the same party who had been disqualified for any cause, this does not include those cases where the certificate of candidacy of the person to be substituted had been denied due course and cancelled under Section 78 of the Code.

 Expressio unius est exclusio alterius.  While the law enumerated the occasions where a

candidate may be validly substituted, there is no mention of the case where a candidate is excluded not only by disqualification but also by denial and cancellation of his certificate of candidacy.  Under the foregoing rule, there can be no valid substitution  for the latter case, much in the same way that a nuisance candidate whose certificate of candidacy is denied due course and/or cancelled may not be substituted.  If the intent of the lawmakers were otherwise, they could have so easily and conveniently included those persons whose certificates of candidacy have been denied due course and/or cancelled under the provisions of Section 78 of the Code.

 xxx                       xxx                      xxx

 A person without a valid certificate of candidacy cannot be considered a candidate in much

the same way as any person who has not filed any certificate of candidacy at all can not, by any stretch of the imagination, be a candidate at all.

 xxx                       xxx                       xxx

 

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Ong vs. AlegreAfter having considered the importance of a certificate of candidacy, it can be readily

understood why in Bautista [Bautista vs. Comelec, G.R. No. 133840, November 13, 1998] we ruled that a person with a cancelled certificate is no candidate at all.  Applying this principle to the case at bar and considering that Section 77 of the Code is clear and unequivocal that only an official candidate of a registered or accredited party may be substituted, there demonstrably cannot be any possible substitution of a person whose certificate of candidacy has been cancelled and denied due course.

  

        In any event, with the hard reality that the May 10, 2004 elections were already passé, Rommel Ong’s petition in G.R. No. 163354 is already moot and academic.

 

        WHEREFORE, the instant petitions are DISMISSED and  the assailed en banc  Resolution dated May 7, 2004 of the COMELEC, in SPA No.  04-048  AFFIRMED.

 

        Costs against petitioners.

 

        SO ORDERED.

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Rivera III vs. COMELECEN BANC

 ATTY. VENANCIO Q. RIVERA III and ATTY. NORMANDICK DE GUZMAN,

                                     Petitioners, 

-versus- 

COMELEC and MARINO “BOKING” MORALES,

                                   Respondents.x---------------------------------------------xANTHONY D. DEE,

Petitioner,       

-versus-        COMELEC and MARINO “BOKING” MORALES,

                                   Respondents. 

G.R. No. 167591          

G.R. No. 170577 Present: PUNO, C.J.,QUISUMBING,YNARES-SANTIAGO,SANDOVAL-GUTIERREZ,CARPIO,

    *AUSTRIA-MARTINEZ,    *CORONA,

CARPIO MORALES,AZCUNA,TINGA,CHICO-NAZARIO,GARCIA,VELASCO, JR., and**NACHURA, JJ. Promulgated:    

May 9, 2007

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

 DECISION

 

  

SANDOVAL-GUTIERREZ, J.:              

For our resolution are two consolidated petitions for certiorari under Rule 65 of the 1997 Rules of Civil Procedure, as amended, assailing the Resolutions dated March 14, 2005 and November 8, 2005 of the COMELEC En Banc.

 G.R. No. 167591

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Rivera III vs. COMELEC 

ATTY. VENANCIO Q. RIVERA III and ATTY. NORMANDICK DE GUZMAN v. COMELEC and MARINO “BOKING” MORALES

  

In the May 2004 Synchronized National and Local Elections, respondent Marino “Boking” Morales ran as candidate for mayor of Mabalacat, Pampanga for the term commencing July 1, 2004 to June 30, 2007.    Prior thereto or on January 5, 2004, he filed his Certificate of Candidacy.

 On January 10, 2004, Attys. Venancio Q. Rivera and Normandick De Guzman, petitioners,

filed with the Second Division of the Commission on Elections (COMELEC) a petition to cancel respondent Morales’ Certificate of Candidacy on the ground that he was elected and had served three previous consecutive terms as mayor of Mabalacat.  They alleged that his candidacy violated Section 8, Article X of the Constitution and Section 43 (b) of Republic Act (R.A.) No. 7160, also known as the Local Government Code.

 In his answer to the petition, respondent Morales admitted that he was elected mayor of

Mabalacat for the term commencing July 1, 1995 to June 30, 1998 (first term) and July 1, 2001 to June 30, 2004 (third term), but he served the second term from July 1, 1998 to June 30, 2001 only as a  “caretaker of the office” or as a “de facto officer” because of the following reasons:

 a. He was not validly elected for the second term 1998 to 2001 since his

proclamation as mayor was declared void by the Regional Trial Court (RTC), Branch 57, Angeles City in its Decision dated April 2, 2001 in Election Protest Case (EPC) No. 98-131.  The Decision became final and executory on August 6, 2001; and  

 b. He was preventively suspended by the Ombudsman in an anti-graft case

from January 16, 1999 to July 15, 1999.   On May 6, 2004, the COMELEC Second Division rendered its Resolution finding

respondent Morales disqualified to run for the position of municipal mayor on the ground that he had already served three (3) consecutive terms.  Accordingly, his Certificate of Candidacy was cancelled.  On May 7, 2004, he filed with the COMELEC En Banc a motion for reconsideration.

 On March 14, 2005, the COMELEC En Banc issued a Resolution granting respondent

Morales’ motion for reconsideration and setting aside that of the Second Division.  The COMELEC En Banc held that since the Decision in EPC No. 98-131 of the RTC, Branch 57, Angeles City declared respondent Morales’ proclamation void, his discharge of the duties in

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Rivera III vs. COMELEC

the Office of the Mayor in Mabalacat is that of a de facto officer or a de facto mayor.  Therefore, his continuous service for three consecutive terms has been severed.

 Hence, this petition for certiorari. 

G.R. No. 170577 

ANTHONY DEE v. COMMISSION ON ELECTIONS and MARIO “BOKING” MORALES

 On May 24, 2004, after respondent Morales was proclaimed the duly elected mayor of

Mabalacat for the term commencing July 1, 2004 to           June 30, 2007, petitioner Anthony Dee, also a candidate for mayor, filed with the RTC, Branch 61, Angeles City a petition for quo warranto against the said respondent.  Petitioner alleged that respondent Morales, having served as mayor for three consecutive terms, is ineligible to run for another term or fourth term.    The case was docketed as Civil Case No. 11503.

 In his answer, respondent Morales raised the following defenses: 

a. He was not validly elected for the term 1998 to 2001 since the RTC, Branch 57, Angeles City declared in its Decision that his proclamation as mayor of Mabalacat was void.  Petitioner Dee was then proclaimed the duly elected mayor; and

    b. He was preventively suspended for six months by the Ombudsman, during the

same term in an anti-graft case, an interruption in the continuity of his service as municipal mayor of Mabalacat.[1]   

 In its Decision dated November 22, 2004, the RTC dismissed petitioner Dee’s petition

for quo warranto on the ground that respondent Morales did not serve the three-term limit since he was not the duly elected mayor of Mabalacat, but petitioner Dee in the May 1998 elections for the term 1998 to 2001, thus:

 Respondent, Marino Morales, was not the duly elected mayor of Mabalacat, Pampanga in

the May 1998 elections for the term 1998 to 2001 because although he was proclaimed as the elected mayor of Mabalacat, Pampanga by the Municipal Board of Canvassers, had assumed office and discharged the duties of mayor, his close rival, the herein petitioner, Anthony D. Dee, was declared the duly elected Mayor of Mabalacat, Pampanga in the Decision promulgated on April 2, 2001 in Election Protest EPC No. 98-131 filed by Anthony Dee against herein respondent, Marino Morales, and decided by RTC, Br. 57, Angeles City.   x x x.

 

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Rivera III vs. COMELEC

Petitioner Dee interposed an appeal to the COMELEC First Division, alleging that respondent Morales violated the three-term limit rule when he ran for re-election (fourth time) as mayor in the 2004 elections.   Consequently, his proclamation as such should be set aside.  In a Resolution dated July 29, 2005 the COMELEC First Division issued a Resolution dismissing the appeal.   It held that respondent Morales cannot be deemed to have served as mayor of Mabalacat during the term 1998 to 2001 because his proclamation was declared void by the RTC, Branch 57 of Angeles City.   He only served as a caretaker, thus, his service during that term should not be counted.

 On August 12, 2005, petitioner Dee filed with the COMELEC En Banc a motion for

reconsideration.  In a Resolution dated November 8, 2005, the COMELEC En Banc affirmed the questioned Resolution of the Second Division.

 Hence, petitioner Dee’s instant petition for certiorari. Both cases may be decided based on the same facts and issues. It is undisputed that respondent Morales was elected to the position of mayor of Mabalacat

for the following consecutive terms: a)                 July 1, 1995 to June 30, 1998  b)                July 1, 1998 to June 30, 2001c)                 July 1, 2001 to June 30, 2004d)                July 1, 2004 to June 30, 2007    

 THE PRINCIPAL ISSUE. – Respondent Morales argued and the Comelec held that the July 1, 2003 to June 30,

2007 term is not his fourth because his second term, July 1, 1998 toJune 30, 2001 to which he was elected and which he served, may not be counted since his proclamation was declared void by the RTC, Branch 57 of Angeles City.

 Respondent Morales is wrong.   This Court, through Mr. Justice Cancio C. Garcia, resolved

the same issue in Ong v. Alegre[2] with identical facts, thus: 

To digress a bit, the May 1998 elections saw both Alegre and Francis opposing each other for the office of mayor of San Vicente, Camarines Norte, with the latter being subsequently proclaimed by the COMELEC winner in the contest.  Alegre subsequently filed an election protest, docketed as Election Case No. 6850 before the Regional Trial Court (RTC) at Daet, Camarines Norte.  In it, the RTC declared Alegre as the duly elected mayor in that 1998 mayoralty contest,

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Rivera III vs. COMELECalbeit the decision came out only on July 4, 2001, when Francis had fully served the 1998-2001 mayoralty term and was in fact already starting to serve the 2001-2004 term as mayor-elected for the municipality of San Vicente.

x  x  x

A resolution of the issues thus formulated hinges on the question of whether or not petitioner Francis’ assumption of office as mayor of San Vicente, Camarines Norte for the mayoralty term 1998 to 2001 should be considered as full service for the purpose of the three-term limit rule.

Respondent COMELEC resolved the question in the affirmative.  Petitioner Francis, on the other hand, disagrees.  He argues that, while he indeed assumed office and discharged the duties as Mayor of San Vicente for three consecutive terms, his proclamation as mayor-elected in the May 1998 election was contested and eventually nullified per the Decision of the RTC of Daet, Camarines Norte dated July 4, 2001.  Pressing the point, petitioner argues, citing Lonzanida v. Comelec, that a proclamation subsequently declared void is no proclamation at all and one assuming office on the strength of a protested proclamation does so as a presumptive winner and subject to the final outcome of the election protest.

x  x  x

For the three-term limit for elective local government officials to apply, two conditions or requisites must concur, to wit: (1) that the official concerned has been elected for three (3) consecutive terms in the same local government post, and (2) that he has fully served three (3) consecutive terms.

With the view we take of the case, the disqualifying requisites are present herein, thus effectively barring petitioner Francis from running for mayor of San Vicente, Camarines Norte in the May 10, 2004 elections.  There can be no dispute about petitioner Francis Ong having been duly elected mayor of that municipality in the May 1995 and again in the May 2001 elections and serving the July 1, 1995-June 30, 1998 and the July 1, 2001-June 30, 2004 terms in full.  The herein controversy revolves around the 1998-2001 mayoral term, albeit there can also be no quibbling that Francis ran for mayor of the same municipality in the May 1998 elections and actually served the 1998-2001 mayoral term by virtue of a proclamation initially declaring him mayor-elect of the municipality of San Vicente.  The question that begs to be addressed, therefore, is whether or not Francis’ assumption of office as Mayor of San Vicente, Camarines Norte from July 1, 1998 to June 30, 2001, may be considered as one full term service in the context of the consecutive three-term limit rule.         

We hold that such assumption of office constitutes, for Francis, “service for the full term,” and should be counted as a full term served in contemplation of the three-term limit prescribed by the constitutional and statutory provisions, supra, barring local elective officials from being elected and serving for more than three consecutive terms for the same position.

It is true that the RTC-Daet, Camarines Norte ruled in Election Protest Case No. 6850, that it was Francis’ opponent (Alegre) who “won” in the 1998 mayoralty race and, therefore, was the legally elected mayor of San Vicente.  However, that disposition, it must be stressed, was without practical and legal use and value, having been promulgated after the term of the contested office has expired.  Petitioner Francis’ contention that he was only a presumptive winner in the 1998 mayoralty derby as his proclamation was under protest did not make him less than a duly elected mayor.  His proclamation by the Municipal Board of Canvassers of San Vicente as the duly elected

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Rivera III vs. COMELECmayor in the 1998 mayoralty election coupled by his assumption of office and his continuous exercise of the functions thereof from start to finish of the term, should legally be taken as service for a full term in contemplation of the three-term rule.

The absurdity and the deleterious effect of a contrary view is not hard to discern.  Such contrary view would mean that Alegre would-under the three-term rule-be considered as having served a term by virtue of a veritably meaningless electoral protest ruling, when another actually served such term pursuant to a proclamation made in due course after an election.

Petitioner cites, but, to our mind, cannot seek refuge from the Court’s ruling in Lonzanida v. Comelec, citing Borja v. Comelec.  In Lonzanida, petitioner Lonzanida was elected and served for two consecutive terms as mayor of San Antonio, Zambales prior to the May 8, 1995 elections.  He then ran again for the same position in the May 1995 elections, won and discharged his duties as Mayor.   However, his opponent contested his proclamation and filed an election protest before the RTC of Zambales, which, in a decision dated January 8, 1997, ruled that there was a failure of elections and declared the position vacant.  The COMELEC affirmed this ruling and petitioner Lonzanida acceded to the order to vacate the post.  Lonzanida assumed the office and performed his duties up to March 1998 only.  Now, during the May 1998 elections, Lonzanida again ran for mayor of the same town.  A petition to disqualify, under the three-term rule, was filed and was eventually granted.  There, the Court held that Lonzanida cannot be considered as having been duly elected to the post in the May 1995 election, and that he did not fully serve the 1995-1998 mayoralty term by reason of involuntary relinquishment of office.  As the Court pointedly observed, Lonzanida “cannot be deemed to have served the May 1995 to 1998 term because he was ordered to vacate [and in fact vacated] his post before the expiration of the term.”

The difference between the case at bench and Lonzanida is at once apparent.  For one, in Lonzanida, the result of the mayoralty elections was declared a nullity for the stated reason of “failure of election,” and, as a consequence thereof, the proclamation of Lonzanida as mayor-elect was nullified, followed by an order for him to vacate the office of the mayor.  For another, Lonzanida did not fully serve the 1995-1998 mayoral term, there being an involuntary severance from office as a result of legal processes.  In fine, there was an effective interruption of the continuity of service.

On the other hand, the failure-of-election factor does not obtain in the present case.  But more importantly, here, there was actually no interruption or break in the continuity of Francis’ service respecting the 1998-2001 term.  Unlike Lonzanida, Francis was never unseated during the term in question; he never ceased discharging his duties and responsibilities as mayor of San Vicente, Camarines Norte for the entire period covering the 1998-2001 term.

  

It bears stressing that in Ong v. Alegre cited above, Francis Ong was elected and assumed the duties of the mayor of San Vicente, Camarines Norte for three consecutive terms.    But his proclamation as mayor in the May 1998 election was declared void by the RTC of Daet, Camarines Norte in its Decision dated July 4, 2001.    As ruled by this Court, his service for the term 1998 to 2001 is for the full term.   Clearly, the three-term limit rule applies to him.   Indeed, there is no reason why this ruling should not also apply to respondent Morales who is similarly situated.

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Rivera III vs. COMELEC

 Here, respondent Morales invoked not only Lonzanida v. COMELEC,[3] but also Borja, Jr. v.

Commission on Elections[4] which is likewise inapplicable.    The facts in Borja are: 

Private respondent Jose T. Capco was elected vice-mayor of Pateros on January 18, 1998 for a term ending June 30, 1992.  On September 2, 1989, he became mayor, by operation of law, upon the death of the incumbent, Cesar Borja.  On May 11, 1992, he ran and was elected mayor for a term of three years which ended on June 30, 1995.  On May 8, 1995, he was reelected mayor for another term of three years ending June 30, 1998.

 On March 27, 1998, private respondent Capco filed a certificate of candidacy for mayor of

Pateros relative to the May 11, 1998 elections, Petitioner Benjamin U. Borja, Jr., who was also a candidate for mayor, sought Capco’s disqualification on the theory that the latter would have already served as mayor for three consecutive terms by June 30, 1998 and would therefore be ineligible to serve for another term after that.

 On April 30, 1998, the Second Division of the Commission on Elections ruled in favor of

petitioner and declared private respondent Capco disqualified from running for reelection as mayor of Pateros.   However, on motion of private respondent, the COMELEC en banc, voting 5-2, reversed the decision and declared Capco eligible to run for mayor in the May 11, 1998 elections.  x x x

  

This Court held that Capco’s assumption of the office of mayor upon the death of the incumbent may not be regarded as a “term” under Section 8, Article X of the Constitution and Section 43 (b) of R.A. No. 7160 (the Local Government Code).  He held the position from September 2, 1989 to        June 30, 1992, a period of less than three years.  Moreover, he was not elected to that position.

 Similarly, in Adormeo v. COMELEC,[5] this Court ruled that assumption of the office of

mayor in a recall election for the remaining term is not the “term” contemplated under Section 8, Article X of the Constitution and Section 43 (b) of R.A. No. 7160 (the Local Government Code).  As the Court observed, there was a “break” in the service of private respondent Ramon T. Talanga as mayor.  He was a “private citizen” for a time before running for mayor in the recall elections.

 Here, respondent Morales was elected for the term July 1, 1998 to June 30, 2001.  He

assumed the position.  He served as mayor until             June 30, 2001.  He was mayor for the entire period notwithstanding the Decision of the RTC in the electoral protest case filed by petitioner Dee ousting him (respondent) as mayor.  To reiterate, as held in Ong v. Alegre,[6] such circumstance does not constitute an interruption in serving the full term.

 Section 8, Article X of the Constitution can not be more clear and explicit –

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Rivera III vs. COMELEC

           The term of the office of elected local officials x x x, shall be three years and no such official shall serve for more than three consecutive terms. x x x         

                            Upon the other hand, Section 43 (b) of R.A. No. 7160 (the Local Government Code) clearly provides:                    No local official shall serve for more than three consecutive terms in the same position.  x x x  

            Respondent Morales is now serving his fourth term.  He has been mayor of Mabalacat continuously without any break since July 1, 1995.  In just over a month, by June 30, 2007, he will have been mayor of Mabalacat for twelve (12) continuous years.           In Latasa v. Comelec,[7] the Court explained the reason for the maximum term limit, thus:                            The framers of the Constitution, by including this exception, wanted to establish some

safeguards against the excessive accumulation of power as a result of consecutive terms.  As Commissioner Blas Ople stated during the deliberations:

                                     x x x  I think we want to prevent future situations where, as a result of

continuous service and frequent re-elections, officials from the President down to the municipal mayor tend to develop a proprietary interest in their positions and to accumulate these powers and prerequisites that permit them to stay on indefinitely or to transfer these posts to members of their families in a subsequent election. x x x

                                                 x x x

                         It is evident that in the abovementioned cases, there exists a rest period or a break in the

service of local elective official.  In Lonzanida, petitioner therein was a private citizen a few months before the next mayoral elections.  Similarly, in Adormeo and Socrates, the private respondents therein lived as private citizens for two years and fifteen months respectively.  Indeed, the law contemplates a rest period during which the local elective official steps down from office and ceases to exercise power or authority over the inhabitants of the territorial jurisdiction of a particular local government unit.

                         This Court reiterates that the framers of the Constitution specifically included an exception

to the people’s freedom to choose those who will govern them in order to avoid the evil of a single person accumulating excessive power over a particular territorial jurisdiction as a result of a prolonged stay in the same office.  To allow petitioner Latasa to vie for the position of city mayor after having served for three consecutive terms as municipal mayor would obviously defeat the very intent of the framers when they wrote this exception.  Should he be allowed another three consecutive term as mayor of the City of Digos, petitioner would then be possibly holding office as chief executive over the same territorial jurisdiction and inhabitants for a total of

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Rivera III vs. COMELECeighteen consecutive years.  This is the very scenario sought to be avoided by the Constitution, if not abhorred by it.

  

            This is the very situation in the instant case.  Respondent Morales maintains that he served his second term (1998 to 2001) only as a “caretaker of the office” or as a “de facto officer.”   Section 8, Article X of the Constitution is violated and its purpose defeated when an official serves in the same position for three consecutive terms.  Whether as “caretaker” or “de facto” officer, he exercises the powers and enjoys the prerequisites of the office which enables him “to stay on indefinitely”.           Respondent Morales should be promptly ousted from the position of mayor of Mabalacat.   G.R. No. 167591 –

           Having found respondent Morales ineligible, his Certificate of Candidacy dated December 30, 2003 should be cancelled.  The effect of the cancellation of a Certificate of Candidacy is provided under Sections 6 and 7 of  R.A. No. 6646, thus:                    SECTION 6. Effect of Disqualification Case. – Any candidate who has been declared by

final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of guilt is strong.

                         SECTION 7. Petition to Deny Due Course To or Cancel a Certificate of Candidacy. – The

procedure hereinabove provided shall apply to petitions to deny due course to or cancel a certificate of candidacy as provided in Section 78 of  Batas Pambansa Blg. 881.

  

in relation to Section 211 of the Omnibus Election Code,  which provides:                       SEC. 211.  Rules for the appreciation of ballots. – In the reading and appreciation of ballots,

every ballot shall be presumed to be valid unless there is clear and good reason to justify its rejection.  The board of election inspectors shall observe the following rules, bearing in mind that the object of the election is to obtain the expression of the voter’s will:

x x x                         19.  Any vote in favor of a person who has not filed a certificate of candidacy or in favor

of a candidate for an office for which he did not present himself shall be considered as a stray vote but it shall not invalidate the whole ballot.

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Rivera III vs. COMELEC 

x x x 

 In the light of the foregoing, respondent Morales can not be considered a candidate in the

May 2004 elections.  Not being a candidate, the votes cast for him SHOULD NOT BE COUNTED and must be considered stray votes. G.R. No. 170577 – 

Since respondent Morales is DISQUALIFIED from continuing to serve as mayor of Mabalacat, the instant petition for quo warranto has become moot.

 Going back to G.R. No. 167591, the question now is whether it is the vice-mayor or

petitioner Dee who shall serve for the remaining portion of the 2004 to 2007 term.   In Labo v. Comelec,[8] this Court has ruled that a second place candidate cannot be

proclaimed as a substitute winner, thus:        

The rule, therefore, is: the ineligibility of a candidate receiving majority votes does not entitle the eligible candidate receiving the next highest number of votes to be declared elected.    A minority or defeated candidate cannot be deemed elected to the office.

 x x x

 It is therefore incorrect to argue that since a candidate has been disqualified, the votes

intended for the disqualified candidate should, in effect, be considered null and void.  This would amount to disenfranchising the electorate in whom sovereignty resides.   At the risk of being repetitious, the people of Baguio City opted to elect petitioner Labo bona fide, without any intention to misapply their franchise, and in the honest belief that Labo was then qualified to be the person to whom they would entrust the exercise of the powers of the government.   Unfortunately, petitioner Labo turned out to be disqualified and cannot assume the office.

 Whether or not the candidate whom the majority voted for can or cannot be installed, under

no circumstances can minority or defeated candidate be deemed elected to the office.  Surely, the 12,602 votes cast for petitioner Ortega is not a larger number than the 27,471 votes cast for petitioner Labo (as certified by the Election Registrar of Baguio City; rollo, p. 109; GR No. 105111).

 x x x

 As a consequence of petitioner’s ineligibility, a permanent vacancy in the contested office

has occurred.    This should now be filled by the vice-mayor in accordance with Section 44 of the Local Government Code, to wit:

 

Page 278: Municipal Corporations

Rivera III vs. COMELECSec. 44. Permanent vacancies in the Offices of the Governor, Vice-Governor,

Mayor and Vice-Mayor. – (a) If a permanent vacancy occurs in the office of the governor or mayor, the vice-governor or the vice-mayor concerned shall become the governor or mayor. x x x

  

WHEREFORE, the petition in G.R. No. 167591 is GRANTED.  Respondent Morales’ Certificate of Candidacy dated December 30, 2003 is cancelled.   In view of the vacancy in the Office of the Mayor in Mabalacat, Pampanga, the vice-mayor elect of the said municipality in the May 10, 2004 Synchronized National and Local Elections is hereby declared mayor and shall serve as such for the remaining duration of the term July 1, 2004 to June 30, 2007.   The petition in G.R. No. 170577 is DISMISSED for being moot.

 This Decision is immediately executory. SO ORDERED.

Page 279: Municipal Corporations

Montebon vs. COMELEC

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 182088               January 30, 2009

ROBERTO L. DIZON, Petitioner, vsCOMMISSION ON ELECTIONS and MARINO P. MORALES, Respondents.

D E C I S I O N

CARPIO, J.:

The Case

This is a petition for certiorari and prohibition, with prayer for the issuance of a temporary restraining order and writ of preliminary injunction under Rule 65 of the 1997 Rules of Civil Procedure. The present petition seeks the reversal of the Resolution dated 27 July 2007 of the Commission on Elections’ (COMELEC) Second Division which dismissed the petition to disqualify and/or to cancel Marino P. Morales’ (Morales) certificate of candidacy, as well as the Resolution dated 14 February 2008 of the COMELEC En Banc which denied Roberto L. Dizon’s (Dizon) motion for reconsideration.

The Facts

The COMELEC Second Division stated the facts as follows:

Roberto L. Dizon, hereinafter referred to as petitioner, is a resident and taxpayer of the Municipality of Mabalacat, Pampanga. Marino P. Morales, hereinafter referred to as respondent, is the incumbent Mayor of the Municipality of Mabalacat, Pampanga.

Petitioner alleges respondent was proclaimed as the municipal mayor of Mabalacat, Pampanga during the 1995, 1998, 2001 and 2004 elections and has fully served the same. Respondent filed his Certificate of Candidacy on March 28, 2007 again for the same position and same municipality.

Petitioner argues that respondent is no longer eligible and qualified to run for the same position for the May 14, 2007 elections under Section 43 of the Local Government Code of 1991. Under the said provision, no local elective official is allowed to serve for more than three (3) consecutive terms for the same position.

Respondent, on the other hand, asserts that he is still eligible and qualified to run as Mayor of the Municipality of Mabalacat, Pampanga because he was not elected for the said position in the 1998 elections. He avers that the Commission en banc in SPA Case No. A-04-058, entitled Atty. Venancio Q. Rivera III and Normandick P. De Guzman vs. Mayor Marino P. Morales, affirmed the decision of the Regional Trial Court of Angeles City declaring Anthony D. Dee as the duly elected Mayor of Mabalacat, Pampanga in the 1998 elections.

Respondent alleges that his term should be reckoned from 2001 or when he was proclaimed as Mayor of Mabalacat, Pampanga. Respondent further asserts that his election in 2004 is only for his second term. Hence, the three term rule provided under the Local Government Code is not applicable to him.

Respondent further argues that the grounds stated in the instant petition are not covered under Section 78 of the Omnibus Election Code. Respondent further contend [sic] that even if it is covered under the aforementioned provision, the instant petition failed to allege any material misrepresentation in the respondent’s Certificate of Candidacy.1

Page 280: Municipal Corporations

Montebon vs. COMELECThe Ruling of the COMELEC Second Division

In its Resolution dated 27 July 2007, the COMELEC Second Division took judicial notice of this Court’s ruling in the consolidated cases of Atty. Venancio Q. Rivera III v. COMELEC and Marino "Boking" Morales in G.R. No. 167591

and Anthony Dee v. COMELEC and Marino "Boking" Morales in G.R. No. 170577 (Rivera case) promulgated on 9 May 2007. The pertinent portions of the COMELEC Second Division’s ruling read as follows:

Respondent was elected as mayor of Mabalacat from July 1, 1995 to June 30, 1998. There was no interruption of his second term from 1998 to 2001. He was able to exercise the powers and enjoy the position of a mayor as "caretaker of the office" or a "de facto officer" until June 30, 2001 notwithstanding the Decision of the RTC in an electoral protest case. He was again elected as mayor from July 1, 2001 to June 30, 2003 [sic].

It is worthy to emphasize that the Supreme Court ruled that respondent has violated the three-term limit under Section 43 of the Local Government Code. Respondent was considered not a candidate in the 2004 Synchronized National and Local Elections. Hence, his failure to qualify for the 2004 elections is a gap and allows him to run again for the same position in the May 14, 2007 National and Local Elections.

WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES to DENY the instant Petition to Cancel the Certificate of Candidacy and/or Petition for the Disqualification of Marino P. Morales for lack of merit.2

Dizon filed a motion for reconsideration before the COMELEC En Banc.

The Ruling of the COMELEC   En Banc

The COMELEC En Banc affirmed the resolution of the COMELEC Second Division.

The pertinent portions of the COMELEC En Banc’s Resolution read as follows:

Respondent’s certificate of candidacy for the May 2004 Synchronized National and Local Elections was cancelled pursuant to the above-mentioned Supreme Court decision which was promulgated on May 9, 2007. As a result, respondent was not only disqualified but was also not considered a candidate in the May 2004 elections.

Another factor which is worth mentioning is the fact that respondent has relinquished the disputed position on May 16, 2007. The vice-mayor elect then took his oath and has assumed office as mayor of Mabalacat on May 17, 2007 until the term ended on June 30, 2007. For failure to serve for the full term, such involuntary interruption in his term of office should be considered a gap which renders the three-term limit inapplicable.

The three-term limit does not apply whenever there is an involuntary break. The Constitution does not require that the interruption or hiatus to be a full term of three years. What the law requires is for an interruption, break or a rest period from a candidate’s term of office "for any length of time." The Supreme Court in the case of Latasa v. Comelec ruled:

Indeed, the law contemplates a rest period during which the local elective official steps down from office and ceases to exercise power or authority over the inhabitants of the territorial jurisdiction of a particular local government unit.

In sum, the three-term limit is not applicable in the instant case for lack of the two conditions: 1) respondent was not the duly-elected mayor of Mabalacat for the July 1, 2004 to June 30, 2007 term primordially because he was not even considered a candidate thereat; and 2) respondent has failed to serve the entire duration of the term of office because he has already relinquished the disputed office on May 16, 2007 which is more than a month prior to the end of his supposed term.

x x x

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Montebon vs. COMELECWHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES, to DENY the instant Motion for Reconsideration for LACK OF MERIT. The Resolution of the Commission Second Division is hereby AFFIRMED.

SO ORDERED.3

The Issues

Dizon submits that the factual findings made in the Rivera case should still be applied in the present case because Morales had, except for one month and 14 days, served the full term of 2004-2007. Morales’ assumption of the mayoralty position on 1 July 2007 makes the 2007-2010 term Morales’ fifth term in office. Dizon raises the following grounds before this Court:

1. THE COMELEC GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF ITS JURISDICTION WHEN IT RULED THAT RESPONDENT MORALES DID NOT VIOLATE THE THREE-YEAR TERM LIMIT WHEN HE RAN AND WON AS MAYOR OF MABALACAT, PAMPANGA DURING THE MAY 14, 2007 ELECTION.

2. THE COMELEC GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT RULED THAT DUE TO THIS HONORABLE COURT’S RULING IN THE AFORESAID CONSOLIDATED CASES, RESPONDENT MORALES’ FOURTH TERM IS CONSIDERED A GAP IN THE LATTER’S SERVICE WHEN HE FILED HIS CERTIFICATE OF CANDIDACY FOR THE 2007 ELECTIONS.

3. THE COMELEC GRAVELY ABUSED ITS DISCRETION WHEN IT RULED THAT THE FOURTH TERM OF MORALES WAS INTERRUPTED WHEN HE "RELINQUISHED" HIS POSITION FOR ONE MONTH AND 14 DAYS PRIOR TO THE MAY 14, 2007 ELECTION.4

The Ruling of the Court

The petition has no merit.

The present case covers a situation wherein we have previously ruled that Morales had been elected to the same office and had served three consecutive terms, and wherein we disqualified and removed Morales during his fourth term. Dizon claims that Morales is currently serving his fifth term as mayor. Is the 2007-2010 term really Morales’ fifth term?

The Effect of our Ruling in the Rivera Case

In our decision promulgated on 9 May 2007, this Court unseated Morales during his fourth term. We cancelled his Certificate of Candidacy dated 30 December 2003. This cancellation disqualified Morales from being a candidate in the May 2004 elections. The votes cast for Morales were considered stray votes. The dispositive portion in theRivera case reads:

WHEREFORE, the petition in G.R. No. 167591 is GRANTED. Respondent Morales’ Certificate of Candidacy dated December 30, 2003 is cancelled. In view of the vacancy in the Office of the Mayor of Mabalacat, Pampanga, the vice-mayor elect of the said municipality in the May 10, 2004 Synchronized National and Local Elections is hereby declared mayor and shall serve as such for the remaining duration of the term July 1, 2004 to June 30, 2007. The petition in G.R. No. 170577 is DISMISSED for being moot.

This Decision is immediately executory.

SO ORDERED.5

Article X, Section 8 of the 1987 Constitution reads:

Page 282: Municipal Corporations

Montebon vs. COMELECThe 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.

Section 43(b) of the Local Government Code restated Article X, Section 8 of the 1987 Constitution as follows:

No local elective official shall serve for more than three (3) consecutive terms in the same position. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which the elective official concerned was elected.

For purposes of determining the resulting disqualification brought about by the three-term limit, it is not enough that an individual has served three consecutive terms in an elective local office, he must also have been elected to the same position for the same number of times.6 There should be a concurrence of two conditions for the application of the disqualification: (1) that the official concerned has been elected for three consecutive terms in the same local government post and (2) that he has fully served three consecutive terms.7

lavvphil.net

In the Rivera case, we found that Morales was elected as mayor of Mabalacat for four consecutive terms: 1 July 1995 to 30 June 1998, 1 July 1998 to 30 June 2001, 1 July 2001 to 30 June 2004, and 1 July 2004 to 30 June 2007. We disqualified Morales from his candidacy in the May 2004 elections because of the three-term limit. Although the trial court previously ruled that Morales’ proclamation for the 1998-2001 term was void, there was no interruption of the continuity of Morales’ service with respect to the 1998-2001 term because the trial court’s ruling was promulgated only on 4 July 2001, or after the expiry of the 1998-2001 term.

Our ruling in the Rivera case served as Morales’ involuntary severance from office with respect to the 2004-2007 term. Involuntary severance from office for any length of time short of the full term provided by law amounts to an interruption of continuity of service.8 Our decision in the Rivera case was promulgated on 9 May 2007 and was effective immediately. The next day, Morales notified the vice mayor’s office of our decision. The vice mayor assumed the office of the mayor from 17 May 2007 up to 30 June 2007. The assumption by the vice mayor of the office of the mayor, no matter how short it may seem to Dizon, interrupted Morales’ continuity of service. Thus, Morales did not hold office for the full term of 1 July 2004 to 30 June 2007.

2007-2010: Morales’ Fifth Term?

Dizon claims that the 2007-2010 term is Morales’ fifth term in office. Dizon asserts that even after receipt of our decision on 10 May 2007, Morales "waited for the election to be held on 14 May 2007 to ensure his victory for a fifth term."9

We concede that Morales occupied the position of mayor of Mabalacat for the following periods: 1 July 1995 to 30 June 1998, 1 July 1998 to 30 June 2001, 1 July 2001 to 30 June 2004, and 1 July 2004 to 16 May 2007. However, because of his disqualification, Morales was not the duly elected mayor for the 2004-2007 term. Neither did Morales hold the position of mayor of Mabalacat for the full term. Morales cannot be deemed to have served the full term of 2004-2007 because he was ordered to vacate his post before the expiration of the term. Morales’ occupancy of the position of mayor of Mabalacat from 1 July 2004 to 16 May 2007 cannot be counted as a term for purposes of computing the three-term limit. Indeed, the period from 17 May 2007 to 30 June 2007 served as a gap for purposes of the three-term limit rule. Thus, the present 1 July 2007 to 30 June 2010 term is effectively Morales’ first term for purposes of the three-term limit rule.

Dizon alleges that Morales "was able to serve his fourth term as mayor through lengthy litigations. x x x In other words, he was violating the rule on three-term limit with impunity by the sheer length of litigation and profit from it even more by raising the technicalities arising therefrom."10 To this, we quote our ruling in Lonzanida v. COMELEC:

The respondents harp on the delay in resolving the election protest between petitioner and his then opponent Alvez which took roughly about three years and resultantly extended the petitioner’s incumbency in an office to which he was not lawfully elected. We note that such delay cannot be imputed to the petitioner. There is no specific allegation nor proof that the delay was due to any political maneuvering on his part to prolong his stay in office. Moreover, protestant

Page 283: Municipal Corporations

Montebon vs. COMELECAlvez, was not without legal recourse to move for the early resolution of the election protest while it was pending before the regional trial court or to file a motion for the execution of the regional trial court’s decision declaring the position of mayor vacant and ordering the vice-mayor to assume office while the appeal was pending with the COMELEC. Such delay which is not here shown to have been intentionally sought by the petitioner to prolong his stay in office cannot serve as basis to bar his right to be elected and to serve his chosen local government post in the succeeding mayoral election.11

WHEREFORE, we DISMISS the petition. We AFFIRM the Resolution of the Commission on Elections En Bancdated 14 February 2008 as well as the Resolution of the Commission on Elections’ Second Division dated 27 July 2007.

SO ORDERED.

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Montebon vs. COMELEC

Republic of the PhilippinesSUPREME COURTManila

EN BANC

G.R. No. 180444             April 8, 2008

FEDERICO T. MONTEBON and ELEANOR M. ONDOY, petitioners, vs.COMMISSION ON ELECTION and SESINANDO F. POTENCIOSO, JR., respondents.

D E C I S I O N

YNARES-SANTIAGO, J.:

This petition1 for certiorari assails the June 2, 2007 Resolution2 of the First Division of the Commission on Elections (COMELEC) in SPA No. 07-421, denying the petition for disqualification filed by petitioners Federico T. Montebon and Eleanor M. Ondoy against respondent Sesinando F. Potencioso, Jr., as well as the September 28, 2007 Resolution3 of the COMELEC En Banc denying the motion for reconsideration.

Petitioners Montebon and Ondy and respondent Potencioso, Jr. were candidates for municipal councilor of the Municipality of Tuburan, Cebu for the May 14, 2007 Synchronized National and Local Elections. On April 30, 2007, petitioners and other candidates4 for municipal councilor filed a petition for disqualification against respondent with the COMELEC alleging that respondent had been elected and served three consecutive terms as municipal councilor in 1998-2001, 2001-2004, and 2004-2007. Thus, he is proscribed from running for the same position in the 2007 elections as it would be his fourth consecutive term.

In his answer, respondent admitted that he had been elected for three consecutive terms as municipal councilor. However, he claimed that the service of his second term in 2001-2004 was interrupted on January 12, 2004 when he succeeded as vice mayor of Tuburan due to the retirement of Vice Mayor Petronilo L. Mendoza. Consequently, he is not disqualified from vying for the position of municipal councilor in the 2007 elections.

In the hearing of May 10, 2007, the parties were directed to file their respective memoranda.

In petitioners’ memorandum, they maintained that respondent’s assumption of office as vice-mayor in January 2004 should not be considered an interruption in the service of his second term since it was a voluntary renunciation of his office as municipal councilor. They argued that, according to the law, voluntary renunciation of the office for any length of time shall not be considered an interruption in the continuity of service for the full term for which the official concerned was elected.

On the other hand, respondent alleged that a local elective official is not disqualified from running for the fourth consecutive time to the same office if there was an interruption in one of the previous three terms.

On June 2, 2007, the COMELEC First Division denied the petition for disqualification ruling that respondent’s assumption of office as vice-mayor should be considered an interruption in the continuity of his service. His second term having been involuntarily interrupted, respondent should thus not be disqualified to seek reelection as municipal councilor.5

On appeal, the COMELEC En Banc upheld the ruling of the First Division, as follows:

Respondent’s assumption to the office of the vice-mayor of Tuburan in January 2004 during his second term as councilor is not a voluntary renunciation of the latter office. The same therefore operated as an effective disruption in the full service of his second term as councilor. Thus, in running for councilor again in the May 14,

Page 285: Municipal Corporations

Montebon vs. COMELEC2007 Elections, respondent is deemed to be running only for a second consecutive term as councilor of Tuburan, the first consecutive term fully served being his 2004-2007 term.

Petitioner Montebon’s and Ondoy’s June 9, 2007 manifestation and omnibus motion are hereby declared moot and academic with the instant disposition of their motion for reconsideration.

WHEREFORE, premises considered, petitioners’ motion for reconsideration is hereby DENIED for lack of merit.

SO ORDERED.6

Petitioners filed the instant petition for certiorari on the ground that the COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction in ruling that respondent’s assumption of office as vice-mayor in January 2004 interrupted his 2001-2004 term as municipal councilor.

The petition lacks merit.

The 1987 Constitution bars and disqualifies local elective officials from serving more than three consecutive terms in the same post. Section 8, Article X thereof states:

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 officials 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.

Section 43 of the Local Government Code also provides:

Sec. 43. Term of Office.

(b) No local elective official shall serve for more than three consecutive terms in the same position. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which the elective official concerned was elected.

In Lonzanida v. Commission on Elections,7 the Court held that the two conditions for the application of the disqualification must concur: 1) that the official concerned has been elected for three consecutive terms in the same local government post; and 2) that he has fully served three consecutive terms.8 In Borja, Jr. v. Commission on Elections,9 the Court emphasized that the term limit for elective officials must be taken to refer to the right to be elected as well as the right to serve in the same elective position. Thus, for the disqualification to apply, it is not enough that the official has been elected three consecutive times; he must also have served three consecutive terms in the same position.10

While it is undisputed that respondent was elected municipal councilor for three consecutive terms, the issue lies on whether he is deemed to have fully served his second term in view of his assumption of office as vice-mayor of Tuburan on January 12, 2004.

Succession in local government offices is by operation of law.11 Section 4412 of Republic Act No. 7160, otherwise known as the Local Government Code, provides that if a permanent vacancy occurs in the office of the vice mayor, the highest ranking sanggunian member shall become vice mayor. Thus:

SEC. 44. Permanent Vacancies in the Offices of the Governor, Vice Governor, Mayor, and Vice Mayor. – (a) If a permanent vacancy occurs in the office of the governor or mayor, the vice governor or vice mayor concerned shall become the governor or mayor. If a permanent vacancy occurs in the offices of the governor, vice governor, mayor or vice mayor, the highest ranking sanggunian member or, in case of his permanent inability, the second highest ranking sanggunian member, shall become the governor, vice governor, mayor or vice mayor, as the case may be. Subsequent vacancies in the said office shall be filled automatically by the other sanggunian members according to their ranking as defined herein. x x x

Page 286: Municipal Corporations

Montebon vs. COMELECIn this case, a permanent vacancy occurred in the office of the vice mayor due to the retirement of Vice Mayor Mendoza. Respondent, being the highest ranking municipal councilor, succeeded him in accordance with law. It is clear therefore that his assumption of office as vice-mayor can in no way be considered a voluntary renunciation of his office as municipal councilor.

In Lonzanida v. Commission on Elections, the Court explained the concept of voluntary renunciation as follows:

The second sentence of the constitutional provision under scrutiny states, ‘Voluntary renunciation of office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which he was elected.’ The clear intent of the framers of the constitution to bar any attempt to circumvent the three-term limit by a voluntary renunciation of office and at the same time respect the people’s choice and grant their elected official full service of a term is evident in this provision. Voluntary renunciation of a term does not cancel the renounced term in the computation of the three term limit; conversely,involuntary severance from office for any length of time short of the full term provided by law amounts to an interruption of continuity of service.13 (Emphasis added)

Thus, respondent’s assumption of office as vice-mayor in January 2004 was an involuntary severance from his office as municipal councilor, resulting in an interruption in the service of his 2001-2004 term. It cannot be deemed to have been by reason of voluntary renunciation because it was by operation of law. We quote with approval the ruling of the COMELEC that –

The legal successor is not given any option under the law on whether to accept the vacated post or not. Section 44 of the Local Government Code makes no exception. Only if the highest-ranking councilor is permanently unable to succeed to the post does the law speak of alternate succession. Under no circumstances can simple refusal of the official concerned be considered as permanent inability within the contemplation of law. Essentially therefore, the successor cannot refuse to assume the office that he is mandated to occupy by virtue of succession. He can only do so if for some reason he is permanently unable to succeed and occupy the post vacated.

x x x x

Thus, succession by law to a vacated government office is characteristically not voluntary since it involves the performance of a public duty by a government official, the non-performance of which exposes said official to possible administrative and criminal charges of dereliction of duty and neglect in the performance of public functions. It is therefore more compulsory and obligatory rather than voluntary.14

WHEREFORE, the petition is DISMISSED for lack of merit. The June 2, 2007 Resolution of the COMELEC First Division denying the petition for disqualification and the September 28, 2007 Resolution of the COMELEC en banc denying the motion for reconsideration, are AFFIRMED.

SO ORDERED.

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Bolos Jr. Vs. COMELEC

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 184082               March 17, 2009

NICASIO BOLOS, JR., Petitioner, vs.THE COMMISSION ON ELECTIONS and REY ANGELES CINCONIEGUE, Respondents.

D E C I S I O N

PERALTA, J.:

This is a petition for certiorari, under Rule 65 of the Rules of Court, alleging that the Commission on Elections (COMELEC) committed grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the Resolutions promulgated on March 4, 2008 and August 7, 2008 holding that petitioner Nicasio Bolos, Jr. is disqualified as a candidate for the position of Punong Barangay of Barangay Biking, Dauis, Bohol in the October 29,

2007 Barangay and Sangguniang Kabataan Elections on the ground that he has served the three-term limit provided in the Constitution and Republic Act (R.A.) No. 7160, otherwise known as the Local Government Code of 1991.

The facts are as follows:

For three consecutive terms, petitioner was elected to the position of Punong Barangay of Barangay Biking, Dauis, Bohol in the Barangay Elections held in 1994, 1997 and 2002.

In May 2004, while sitting as the incumbent Punong Barangay of Barangay Biking, petitioner ran for Municipal Councilor of Dauis, Bohol and won. He assumed office as Municipal Councilor on July 1, 2004, leaving his post asPunong Barangay. He served the full term of the Sangguniang Bayan position, which was until June 30, 2007.

Thereafter, petitioner filed his Certificate of Candidacy for Punong Barangay of Barangay Biking, Dauis, Bohol in the October 29, 2007 Barangay and Sangguniang Kabataan Elections.

Respondent Rey Angeles Cinconiegue, the incumbent Punong Barangay and candidate for the same office, filed before the COMELEC a petition for the disqualification of petitioner as candidate on the ground that he had already served the three-term limit. Hence, petitioner is no longer allowed to run for the same position in accordance with Section 8, Article X of the Constitution and Section 43 (b) of R.A. No. 7160.

Cinconiegue contended that petitioner’s relinquishment of the position of Punong Barangay in July 2004 was voluntary on his part, as it could be presumed that it was his personal decision to run as municipal councilor in the May 14, 2004 National and Local Elections. He added that petitioner knew that if he won and assumed the position, there would be a voluntary renunciation of his post as Punong Barangay.

In his Answer, petitioner admitted that he was elected as Punong Barangay of Barangay Biking, Dauis, Bohol in the last three consecutive elections of 1994, 1997 and 2002. However, he countered that in the May 14, 2004 National and Local Elections, he ran and won as Municipal Councilor of Dauis, Bohol. By reason of his assumption of office as Sangguniang Bayan member, his remaining term of office as Punong Barangay, which would have ended in 2007, was left unserved. He argued that his election and assumption of office as Sangguniang Bayanmember was by operation of law; hence, it must be considered as an involuntary interruption in the continuity of his last term of service.

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Bolos Jr. Vs. COMELECPursuant to Section 10 of COMELEC Resolution No. 8297 dated September 6, 2007, the petition was heard by the Provincial Election Supervisor of Bohol. Upon completion of the proceedings, the evidence, records of the case, and the Hearing Officer’s action on the matter were endorsed to and received by the Commission on November 21, 2007.

The issue before the COMELEC was whether or not petitioner’s election, assumption and discharge of the functions of the Office of Sangguniang Bayan member can be considered as voluntary renunciation of his office asPunong Barangay of Barangay Biking, Dauis, Bohol which will render unbroken the continuity of his service asPunong Barangay for the full term of office, that is, from 2004 to 2007. If it is considered a voluntary renunciation, petitioner will be deemed to have served three consecutive terms and shall be disqualified to run for the same position in the October 29, 2007 elections. But if it is considered as an involuntary

renunciation, petitioner’s service is deemed to have been interrupted; hence, he is not barred from running for another term.

In a Resolution1 dated March 4, 2008, the First Division of the COMELEC ruled that petitioner’s relinquishment of the office of Punong Barangay of Biking, Dauis, Bohol, as a consequence of his assumption of office asSangguniang Bayan member of Dauis, Bohol, on July 1, 2004, was a voluntary renunciation of the Office ofPunong Barangay. The dispositive portion of the Resolution reads:

WHEREFORE, in view of the foregoing, the Commission (First Division) GRANTS the petition. Respondent NICASIO BOLOS, JR., having already served as Punong Barangay of Barangay Biking, Dauis, Bohol for three consecutive terms is hereby DISQUALIFIED from being a candidate for the same office in the October 29, 2007 Barangay and SK Elections. Considering that respondent had already been proclaimed, said proclamation is hereby ANNULLED. Succession to said office shall be governed by the provisions of Section 44 of the Local Government Code.2

Petitioner’s motion for reconsideration was denied by the COMELEC en banc in a Resolution3 dated August 7, 2008.

Hence, this petition for certiorari raising this lone issue:

WHETHER OR NOT THE HONORABLE COMMISSION ON ELECTIONS ACTED WITHOUT OR IN EXCESS OF ITS JURISDICTION AMOUNTING TO LACK OF JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION IN DISQUALIFYING [PETITIONER] AS A CANDIDATE FOR PUNONG BARANGAY IN THE OCTOBER 29, 2007 BARANGAY AND SANGGUNIANG KABATAAN ELECTIONS AND, SUBSEQUENTLY, ANNULLING HIS PROCLAMATION.4

The main issue is whether or not there was voluntary renunciation of the Office of Punong Barangay by petitioner when he assumed office as Municipal Councilor so that he is deemed to have fully served his third term as Punong Barangay, warranting his disqualification from running for the same position in the October 29, 2007 Barangayand Sangguniang Kabataan Elections.

Petitioner contends that he is qualified to run for the position of Punong Barangay in the October 29, 2007Barangay and Sangguniang Kabataan Elections since he did not serve continuously three consecutive terms. He admits that in the 1994, 1997 and 2002 Barangay elections, he was elected as Punong Barangay for three consecutive terms. Nonetheless, while serving his third term as Punong Barangay, he ran as Municipal Councilor of Dauis, Bohol, and won. On July 1, 2004, he assumed office and, consequently, left his post as Punong Barangay by operation of law. He averred that he served the full term as member of the Sangguniang Bayan until June 30, 2007. On October 29, 2007, he filed his Certificate of Candidacy for Punong Barangay and won. Hence, the COMELEC gravely abused its discretion in disqualifying him as a candidate for Punong Barangay since he did not complete his third term by operation of law.

The argument does not persuade.

The three-term limit for elective local officials is contained in Section 8, Article X of the Constitution, which provides:

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

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Bolos Jr. Vs. COMELECfor 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.

David v. Commission on Elections5 elucidates that the Constitution did not expressly prohibit Congress from fixing any term of office for barangay officials, thereby leaving to the lawmakers full discretion to fix such term in accordance with the exigencies of public service. The discussions in the Constitutional Commission showed that the term of office of barangay officials would be "[a]s may be determined by law," and more precisely, "[a]s provided for in the Local Government Code."6 Section 43(b) of the Local Government Code provides thatbarangay officials are covered by the three-term limit, while Section 43(c)7 thereof states that the term of office ofbarangay officials shall be five (5) years. The cited provisions read, thus:

Sec. 43. Term of Office. – x x x

(b) No local elective official shall serve for more than three (3) consecutive terms in the same position. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which the elective official concerned was elected.

(c) The term of barangay officials and members of the sangguniang kabataan shall be for five (5) years, which shall begin after the regular election of barangay officials on the second Monday of May 1997:Provided, That the sangguniang kabataan members who were elected in the May 1996 elections shall serve until the next regular election of barangay officials.

Socrates v. Commission on Elections8 held that the rule on the three-term limit, embodied in the Constitution and the Local Government Code, has two parts:

x x x The first part provides that an elective local official cannot serve for more than three consecutive terms. The clear intent is that only consecutive terms count in determining the three-term limit rule. The second part states that voluntary renunciation of office for any length of time does not interrupt the continuity of service. The clear intent is that involuntary severance from office for any length of time interrupts continuity of service and prevents the service before and after the interruption from being joined together to form a continuous service or consecutive terms.

After three consecutive terms, an elective local official cannot seek immediate reelection for a fourth term. The prohibited election refers to the next regular election for the same office following the end of the third consecutive term. 9

In Lonzanida v. Commission on Elections,10 the Court stated that the second part of the rule on the three-term limit shows the clear intent of the framers of the Constitution to bar any attempt to circumvent the three-term limit by a voluntary renunciation of office and at the same time respect the people’s choice and grant their elected official full service of a term. The Court held that two conditions for the application of the disqualification must concur: (1) that the official concerned has been elected for three consecutive terms in the same government post; and (2) that he has fully served three consecutive terms.11

In this case, it is undisputed that petitioner was elected as Punong Barangay for three consecutive terms, satisfying the first condition for disqualification.

What is to be determined is whether petitioner is deemed to have voluntarily renounced his position as Punong Barangay during his third term when he ran for and won as Sangguniang Bayan member and assumed said office.

The Court agrees with the COMELEC that there was voluntary renunciation by petitioner of his position as Punong Barangay.

The COMELEC correctly held:

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Bolos Jr. Vs. COMELECIt is our finding that Nicasio Bolos, Jr.’s relinquishment of the office of Punong Barangay of Biking, Dauis, Bohol, as a consequence of his assumption to office as Sangguniang Bayan member of Dauis, Bohol, on July 1, 2004, is a voluntary renunciation.

As conceded even by him, respondent (petitioner herein) had already completed two consecutive terms of office when he ran for a third term in the Barangay Elections of 2002. When he filed his certificate of candidacy for the Office of Sangguniang Bayan of Dauis, Bohol, in the May 10, 2004 [elections], he was not deemed resigned. Nonetheless, all the acts attending his pursuit of his election as municipal councilor point out to an intent and readiness to give up his post as Punong Barangay once elected to the higher elective office, for it was very unlikely that respondent had filed his Certificate of Candidacy for the Sangguniang Bayan post, campaigned and exhorted the municipal electorate to vote for him as such and then after being elected and proclaimed, return to his former position. He knew that his election as municipal councilor would entail abandonment of the position he held, and he intended to forego of it. Abandonment, like resignation, is voluntary.12

Indeed, petitioner was serving his third term as Punong Barangay when he ran for Sangguniang Bayan member and, upon winning, assumed the position of Sangguniang Bayan member, thus, voluntarily relinquishing his office as Punong Barangay which the Court deems as a voluntary renunciation of said office.

Petitioner erroneously argues that when he assumed the position of Sangguniang Bayan member, he left his post as Punong Barangay by

operation of law; hence, he did not fully serve his third term as Punong Barangay.

The term "operation of law" is defined by the Philippine Legal Encyclopedia13 as "a term describing the fact that rights may be acquired or lost by the effect of a legal rule without any act of the person affected." Black's Law Dictionary also defines it as a term that "expresses the manner in which rights, and sometimes liabilities, devolve upon a person by the mere application to the particular transaction of the established rules of law, without the act or cooperation of the party himself."14

An interruption in the service of a term of office, by operation of law, is exemplified in Montebon v. Commission on Elections.15 The respondent therein, Sesinando F. Potencioso, Jr., was elected and served three consecutive terms as Municipal Councilor of Tuburan, Cebu in 1998-2001, 2001-2004, and 2004-2007. However, during his second term, he succeeded as Vice-Mayor of Tuburan due to the retirement of the Vice-Mayor pursuant to Section 44 of R.A. No. 7160.16 Potencioso’s assumption of office as Vice-Mayor was considered an involuntary severance from his office as Municipal Councilor, resulting in an interruption in his second term of service.17 The Court held that it could not be deemed to have been by reason of voluntary renunciation because it was by operation of law.18 Hence, Potencioso was qualified to run as candidate for municipal councilor of the Municipality of Tuburan, Cebu in the May 14, 2007 Synchronized National and Local Elections.

Further, in Borja, Jr. v. Commission on Elections,19 respondent therein, Jose T. Capco, Jr., was elected as Vice-Mayor of Pateros on January 18, 1988 for a term ending on June 30, 1992. On September 2, 1989, Capco became Mayor, by operation of law, upon the death of the incumbent, Cesar Borja. Thereafter, Capco was elected and served as Mayor for two more terms, from 1992 to 1998. On March 27, 1998, Capco filed a Certificate of Candidacy for Mayor of Pateros in the May 11, 1998 election. Capco’s disqualification was sought on the ground that he would have already served as Mayor for three consecutive terms by June 30, 1998; hence, he would be ineligible to serve for another term. The Court declared that the term limit for elective local officials must be taken to refer to the right to be elected as well as the right to serve the same elective position.20 The Court held that Capco was qualified to run again as mayor in the next election because he was not elected to the office of mayor in the first term but simply found himself thrust into it by operation of law.21 Neither had he served the full term because he only continued the service, interrupted by the death, of the deceased mayor.22 The vice-mayor’s assumption of the mayorship in the event of the vacancy is more a matter of chance than of design.23 Hence, his service in that office should not be counted in the application of any term limit.24

In this case, petitioner did not fill in or succeed to a vacancy by operation of law. He instead relinquished his office as Punong Barangay during his third term when he won and assumed office as Sangguniang Bayan member of Dauis, Bohol, which is deemed a voluntary renunciation of the Office of Punong Barangay.

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Bolos Jr. Vs. COMELECIn fine, the COMELEC did not commit grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the Resolutions dated March 4, 2008 and August 7, 2008, disqualifying petitioner from being a candidate for Punong Barangay in the October 29, 2007 Barangay and Sangguniang Kabataan Elections.

WHEREFORE, the petition is DISMISSED. The COMELEC Resolutions dated March 4, 2008 and August 7, 2008 are hereby AFFIRMED. No pronouncement as to costs.

SO ORDERED.

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Aldovino vs. COMELEC

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 184836               December 23, 2009

SIMON B. ALDOVINO, JR., DANILO B. FALLER AND FERDINAND N. TALABONG, Petitioners, vs.COMMISSION ON ELECTIONS AND WILFREDO F. ASILO, Respondents.

D E C I S I O N

BRION, J.:

Is the preventive suspension of an elected public official an interruption of his term of office for purposes of the three-term limit rule under Section 8, Article X of the Constitution and Section 43(b) of Republic Act No. 7160 (RA 7160, or the Local Government Code)?

The respondent Commission on Elections (COMELEC) ruled that preventive suspension is an effective interruption because it renders the suspended public official unable to provide complete service for the full term; thus, such term should not be counted for the purpose of the three-term limit rule.

The present petition1 seeks to annul and set aside this COMELEC ruling for having been issued with grave abuse of discretion amounting to lack or excess of jurisdiction.

THE ANTECEDENTS

The respondent Wilfredo F. Asilo (Asilo) was elected councilor of Lucena City for three consecutive terms: for the 1998-2001, 2001-2004, and 2004-2007 terms, respectively. In September 2005 or during his 2004-2007 term of office, the Sandiganbayan preventively suspended him for 90 days in relation with a criminal case he then faced.This Court, however, subsequently lifted the Sandiganbayan’s suspension order; hence, he resumed performing the functions of his office and finished his term.

In the 2007 election, Asilo filed his certificate of candidacy for the same position. The petitioners Simon B. Aldovino, Jr., Danilo B. Faller, and Ferdinand N. Talabong (the petitioners) sought to deny due course to Asilo’s certificate of candidacy or to cancel it on the ground that he had been elected and had served for three terms; his candidacy for a fourth term therefore violated the three-term limit rule under Section 8, Article X of the Constitution and Section 43(b) of RA 7160.

The COMELEC’s Second Division ruled against the petitioners and in Asilo’s favour in its Resolution of November 28, 2007. It reasoned out that the three-term limit rule did not apply, as Asilo failed to render complete service for the 2004-2007 term because of the suspension the Sandiganbayan had ordered.

The COMELEC en banc refused to reconsider the Second Division’s ruling in its October 7, 2008 Resolution; hence, the PRESENT PETITION   raising the following ISSUES:

1. Whether preventive suspension of an elected local official is an interruption of the three-term limit rule; and

2. Whether preventive suspension is considered involuntary renunciation as contemplated in Section 43(b) of RA 7160

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Aldovino vs. COMELECThus presented, the case raises the direct issue of whether Asilo’s preventive suspension constituted an interruption that allowed him to run for a 4th term.

THE COURT’S RULING

We find the petition meritorious.

General Considerations

The present case is not the first before this Court on the three-term limit provision of the Constitution, but is the first on the effect of preventive suspension on the continuity of an elective official’s term. To be sure, preventive suspension, as an interruption in the term of an elective public official, has been mentioned as an example in Borja v. Commission on Elections.2 Doctrinally, however, Borja is not a controlling ruling; it did not deal with preventive suspension, but with the application of the three-term rule on the term that an elective official acquired by succession.

a. The Three-term Limit Rule:

The Constitutional Provision Analyzed

Section 8, Article X of the Constitution states:

Section 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.

Section 43 (b) of RA 7160 practically repeats the constitutional provision, and any difference in wording does not assume any significance in this case.

As worded, the constitutional provision fixes the term of a local elective office and limits an elective official’s stay in office to no more than three consecutive terms. This is the first branch of the rule embodied in Section 8, Article X.

Significantly, this provision refers to a "term" as a period of time – three years – during which an official has title to office and can serve. Appari v. Court of Appeals,3 a Resolution promulgated on November 28, 2007, succinctly discusses what a "term" connotes, as follows:

The word "term" in a legal sense means a fixed and definite period of time which the law describes that an officer may hold an office. According to Mechem, the term of office is the period during which an office may be held. Upon expiration of the officer’s term, unless he is authorized by law to holdover, his rights, duties and authority as a public officer must ipso facto cease. In the law of public officers, the most and natural frequent method by which a public officer ceases to be such is by the expiration of the terms for which he was elected or appointed. [Emphasis supplied].1avvphi1

A later case, Gaminde v. Commission on Audit,4 reiterated that "[T]he term means the time during which the officer may claim to hold office as of right, and fixes the interval after which the several incumbents shall succeed one another."

The "limitation" under this first branch of the provision is expressed in the negative – "no such official shall serve for more than three consecutive terms." This formulation – no more than three consecutive terms – is a clear command suggesting the existence of an inflexible rule. While it gives no exact indication of what to "serve. . . three consecutive terms" exactly connotes, the meaning is clear – reference is to the term, not to the service that a public official may render.1awphi1 In other words, the limitation refers to the term.

The second branch relates to the provision’s express initiative to prevent any circumvention of the limitation through voluntary severance of ties with the public office; it expressly states that voluntary renunciation of office "shall not be

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Aldovino vs. COMELECconsidered as an interruption in the continuity of his service for the full term for which he was elected." This declaration complements the term limitation mandated by the first branch.

A notable feature of the second branch is that it does not textually state that voluntary renunciation is the only actual interruption of service that does not affect "continuity of service for a full term" for purposes of the three-term limit rule. It is a pure declaratory statement of what does not serve as an interruption of service for a full term, but the phrase "voluntary renunciation," by itself, is not without significance in determining constitutional intent.

The word "renunciation" carries the dictionary meaning of abandonment. To renounce is to give up, abandon, decline, or resign.5 It is an act that emanates from its author, as contrasted to an act that operates from the outside. Read with the definition of a "term" in mind, renunciation, as mentioned under the second branch of the constitutional provision, cannot but mean an act that results in cutting short the term, i.e., the loss of title to office. The descriptive word "voluntary" linked together with "renunciation" signifies an act of surrender based on the surenderee’s own freely exercised will; in other words, a loss of title to office by conscious choice. In the context of the three-term limit rule, such loss of title is not considered an interruption because it is presumed to be purposely sought to avoid the application of the term limitation.

The following exchanges in the deliberations of the Constitutional Commission on the term "voluntary renunciation" shed further light on the extent of the term "voluntary renunciation":

MR. MAAMBONG. Could I address the clarificatory question to the Committee? This term "voluntary renunciation" does not appear in Section 3 [of Article VI]; it also appears in Section 6 [of Article VI].

MR DAVIDE. Yes.

MR. MAAMBONG. It is also a recurring phrase all over the Constitution. Could the Committee please enlighten us exactly what "voluntary renunciation" mean? Is this akin to abandonment?

MR. DAVIDE. Abandonment is voluntary. In other words, he cannot circumvent the restriction by merely resigning at any given time on the second term.

MR. MAAMBONG. Is the Committee saying that the term "voluntary renunciation" is more general than abandonment and resignation?

MR. DAVIDE. It is more general, more embracing.6

From this exchange and Commissioner Davide’s expansive interpretation of the term "voluntary renunciation," the framers’ intent apparently was to close all gaps that an elective official may seize to defeat the three-term limit rule, in the way that voluntary renunciation has been rendered unavailable as a mode of defeating the three-term limit rule. Harking back to the text of the constitutional provision, we note further that Commissioner Davide’s view is consistent with the negative formulation of the first branch of the provision and the inflexible interpretation that it suggests.

This examination of the wording of the constitutional provision and of the circumstances surrounding its formulation impresses upon us the clear intent to make term limitation a high priority constitutional objective whose terms must be strictly construed and which cannot be defeated by, nor sacrificed for, values of less than equal constitutional worth. We view preventive suspension vis-à-vis term limitation with this firm mindset.

b. Relevant Jurisprudence on the

Three-term Limit Rule

Other than the above-cited materials, jurisprudence best gives us a lead into the concepts within the provision’s contemplation, particularly on the "interruption in the continuity of service for the full term" that it speaks of.

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Aldovino vs. COMELECLonzanida v. Commission on Elections7 presented the question of whether the disqualification on the basis of the three-term limit applies if the election of the public official (to be strictly accurate, the proclamation as winner of the public official) for his supposedly third term had been declared invalid in a final and executory judgment. We ruled that the two requisites for the application of the disqualification (viz., 1. that the official concerned has been elected for three consecutive terms in the same local government post; and 2. that he has fully served three consecutive terms) were not present. In so ruling, we said:

The clear intent of the framers of the constitution to bar any attempt to circumvent the three-term limit by a voluntary renunciation of office and at the same time respect the people’s choice and grant their elected official full service of a term is evident in this provision. Voluntary renunciation of a term does not cancel the renounced term in the computation of the three term limit; conversely, involuntary severance from office for any length of time short of the full term provided by law amounts to an interruption of continuity of service. The petitioner vacated his post a few months before the next mayoral elections, not by voluntary renunciation but in compliance with the legal process of writ of execution issued by the COMELEC to that effect. Such involuntary severance from office is an interruption of continuity of service and thus, the petitioner did not fully serve the 1995-1998 mayoral term. [Emphasis supplied]

Our intended meaning under this ruling is clear: it is severance from office, or to be exact, loss of title, that renders the three-term limit rule inapplicable.

Ong v. Alegre8 and Rivera v. COMELEC,9 like Lonzanida, also involved the issue of whether there had been a completed term for purposes of the three-term limit disqualification. These cases, however, presented an interesting twist, as their final judgments in the electoral contest came after the term of the contested office had expired so that the elective officials in these cases were never effectively unseated.

Despite the ruling that Ong was never entitled to the office (and thus was never validly elected), the Court concluded that there was nevertheless an election and service for a full term in contemplation of the three-term rule based on the following premises: (1) the final decision that the third-termer lost the election was without practical and legal use and value, having been promulgated after the term of the contested office had expired; and (2) the official assumed and continuously exercised the functions of the office from the start to the end of the term. The Court noted in Ong the absurdity and the deleterious effect of a contrary view – that the official (referring to the winner in the election protest) would, under the three-term rule, be considered to have served a term by virtue of a veritably meaningless electoral protest ruling, when another actually served the term pursuant to a proclamation made in due course after an election. This factual variation led the Court to rule differently fromLonzanida.

In the same vein, the Court in Rivera rejected the theory that the official who finally lost the election contest was merely a "caretaker of the office" or a mere "de facto officer." The Court obeserved that Section 8, Article X of the Constitution is violated and its purpose defeated when an official fully served in the same position for three consecutive terms. Whether as "caretaker" or "de facto" officer, he exercised the powers and enjoyed the perquisites of the office that enabled him "to stay on indefinitely."

Ong and Rivera are important rulings for purposes of the three-term limitation because of what they directly imply. Although the election requisite was not actually present, the Court still gave full effect to the three-term limitation because of the constitutional intent to strictly limit elective officials to service for three terms. By so ruling, the Court signalled how zealously it guards the three-term limit rule. Effectively, these cases teach us to strictly interpret the term limitation rule in favor of limitation rather than its exception.

Adormeo v. Commission on Elections10 dealt with the effect of recall on the three-term limit disqualification. The case presented the question of whether the disqualification applies if the official lost in the regular election for the supposed third term, but was elected in a recall election covering that term. The Court upheld the COMELEC’s ruling that the official was not elected for three (3) consecutive terms. The Court reasoned out that for nearly two years, the official was a private citizen; hence, the continuity of his mayorship was disrupted by his defeat in the election for the third term.

Socrates v. Commission on Elections11 also tackled recall vis-à-vis the three-term limit disqualification. Edward Hagedorn served three full terms as mayor. As he was disqualified to run for a fourth term, he did not participate in the election that immediately followed his third term. In this election, the petitioner Victorino Dennis M. Socrates was

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Aldovino vs. COMELECelected mayor. Less than 1 ½ years after Mayor Socrates assumed the functions of the office, recall proceedings were initiated against him, leading to the call for a recall election. Hagedorn filed his certificate of candidacy for mayor in the recall election, but Socrates sought his disqualification on the ground that he (Hagedorn) had fully served three terms prior to the recall election and was therefore disqualified to run because of the three-term limit rule. We decided in Hagedorn’s favor, ruling that:

After three consecutive terms, an elective local official cannot seek immediate reelection for a fourth term. The prohibited election refers to the next regular election for the same office following the end of the third consecutive term. Any subsequent election, like a recall election, is no longer covered by the prohibition for two reasons. First, a subsequent election like a recall election is no longer an immediate reelection after three consecutive terms. Second, the intervening period constitutes an involuntary interruption in the continuity of service.

When the framers of the Constitution debated on the term limit of elective local officials, the question asked was whether there would be no further election after three terms, or whether there would be "no immediate reelection" after three terms.

x x x x

Clearly, what the Constitution prohibits is an immediate reelection for a fourth term following three consecutive terms. The Constitution, however, does not prohibit a subsequent reelection for a fourth term as long as the reelection is not immediately after the end of the third consecutive term. A recall election mid-way in the term following the third consecutive term is a subsequent election but not an immediate reelection after the third term.

Neither does the Constitution prohibit one barred from seeking immediate reelection to run in any other subsequent election involving the same term of office. What the Constitution prohibits is a consecutive fourth term.12

Latasa v. Commission on Elections13 presented the novel question of whether a municipal mayor who had fully served for three consecutive terms could run as city mayor in light of the intervening conversion of the municipality into a city. During the third term, the municipality was converted into a city; the cityhood charter provided that the elective officials of the municipality shall, in a holdover capacity, continue to exercise their powers and functions until elections were held for the new city officials. The Court ruled that the conversion of the municipality into a city did not convert the office of the municipal mayor into a local government post different from the office of the city mayor – the territorial jurisdiction of the city was the same as that of the municipality; the inhabitants were the same group of voters who elected the municipal mayor for 3 consecutive terms; and they were the same inhabitants over whom the municipal mayor held power and authority as their chief executive for nine years. The Court said:

This Court reiterates that the framers of the Constitution specifically included an exception to the people’s freedom to choose those who will govern them in order to avoid the evil of a single person accumulating excessive power over a particular territorial jurisdiction as a result of a prolonged stay in the same office. To allow petitioner Latasa to vie for the position of city mayor after having served for three consecutive terms as a municipal mayor would obviously defeat the very intent of the framers when they wrote this exception. Should he be allowed another three consecutive terms as mayor of the City of Digos, petitioner would then be possibly holding office as chief executive over the same territorial jurisdiction and inhabitants for a total of eighteen consecutive years. This is the very scenario sought to be avoided by the Constitution, if not abhorred by it.14

Latasa instructively highlights, after a review of Lonzanida, Adormeo and Socrates, that no three-term limit violation results if a rest period or break in the service between terms or tenure in a given elective post intervened. In Lonzanida, the petitioner was a private citizen with no title to any elective office for a few months before the next mayoral elections. Similarly, in Adormeo and Socrates, the private respondents lived as private citizens for two years and fifteen months, respectively. Thus, these cases establish that the law contemplates a complete break from office during which the local elective official steps down and ceases to exercise power or authority over the inhabitants of the territorial jurisdiction of a particular local government unit.

Seemingly differing from these results is the case of Montebon v. Commission on Elections,15 where the highest-ranking municipal councilor succeeded to the position of vice-mayor by operation of law. The question posed when he subsequently ran for councilor was whether his assumption as vice-mayor was an interruption of his term as councilor

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Aldovino vs. COMELECthat would place him outside the operation of the three-term limit rule. We ruled that an interruption had intervened so that he could again run as councilor. This result seemingly deviates from the results in the cases heretofore discussed since the elective official continued to hold public office and did not become a private citizen during the interim. The common thread that identifies Montebon with the rest, however, is that the elective official vacated the office of councilor and assumed the higher post of vice-mayor by operation of law. Thus, for a time he ceased to be councilor – an interruption that effectively placed him outside the ambit of the three-term limit rule.

c. Conclusion Based on Law and Jurisprudence

From all the above, we conclude that the "interruption" of a term exempting an elective official from the three-term limit rule is one that involves no less than the involuntary loss of title to office. The elective official must have involuntarily left his office for a length of time, however short, for an effective interruption to occur. This has to be the case if the thrust of Section 8, Article X and its strict intent are to be faithfully served, i.e., to limit an elective official’s continuous stay in office to no more than three consecutive terms, using "voluntary renunciation" as an example and standard of what does not constitute an interruption.

Thus, based on this standard, loss of office by operation of law, being involuntary, is an effective interruption of service within a term, as we held in Montebon. On the other hand, temporary inability or disqualification to exercise the functions of an elective post, even if involuntary, should not be considered an effective interruption of a term because it does not involve the loss of title to office or at least an effective break from holding office; the office holder, while retaining title, is simply barred from exercising the functions of his office for a reason provided by law.

An interruption occurs when the term is broken because the office holder lost the right to hold on to his office, and cannot be equated with the failure to render service. The latter occurs during an office holder’s term when he retains title to the office but cannot exercise his functions for reasons established by law. Of course, the term "failure to serve" cannot be used once the right to office is lost; without the right to hold office or to serve, then no service can be rendered so that none is really lost.

To put it differently although at the risk of repetition, Section 8, Article X – both by structure and substance – fixes an elective official’s term of office and limits his stay in office to three consecutive terms as an inflexible rule that is stressed, no less, by citing voluntary renunciation as an example of a circumvention. The provision should be read in the context of interruption of term, not in the context of interrupting the full continuity of the exercise of the powers of the elective position. The "voluntary renunciation" it speaks of refers only to the elective official’s voluntary relinquishment of office and loss of title to this office. It does not speak of the temporary "cessation of the exercise of power or authority" that may occur for various reasons, with preventive suspension being only one of them. To quote Latasa v. Comelec:16

Indeed, [T]he law contemplates a rest period during which the local elective official steps down from office and ceases to exercise power or authority over the inhabitants of the territorial jurisdiction of a particular local government unit. [Emphasis supplied].

Preventive Suspension and the Three-Term Limit Rule

a. Nature of Preventive Suspension

Preventive suspension – whether under the Local Government Code,17 the Anti-Graft and Corrupt Practices Act,18 or the Ombudsman Act19 – is an interim remedial measure to address the situation of an official who have been charged administratively or criminally, where the evidence preliminarily indicates the likelihood of or potential for eventual guilt or liability.

Preventive suspension is imposed under the Local Government Code "when the evidence of guilt is strong and given the gravity of the offense, there is a possibility that the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence." Under the Anti-Graft and Corrupt Practices Act, it is imposed after a valid information (that requires a finding of probable cause) has been filed in court, while under the Ombudsman Act, it is imposed when, in the judgment of the Ombudsman, the evidence of guilt is strong; and (a) the charge involves dishonesty, oppression or grave misconduct or neglect in the performance of duty;

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Aldovino vs. COMELECor (b) the charges would warrant removal from the service; or (c) the respondent’s continued stay in office may prejudice the case filed against him.

Notably in all cases of preventive suspension, the suspended official is barred from performing the functions of his office and does not receive salary in the meanwhile, but does not vacate and lose title to his office; loss of office is a consequence that only results upon an eventual finding of guilt or liability.

Preventive suspension is a remedial measure that operates under closely-controlled conditions and gives a premium to the protection of the service rather than to the interests of the individual office holder. Even then, protection of the service goes only as far as a temporary prohibition on the exercise of the functions of the official’s office; the official is reinstated to the exercise of his position as soon as the preventive suspension is lifted. Thus, while a temporary incapacity in the exercise of power results, no position is vacated when a public official is preventively suspended. This was what exactly happened to Asilo.

That the imposition of preventive suspension can be abused is a reality that is true in the exercise of all powers and prerogative under the Constitution and the laws. The imposition of preventive suspension, however, is not an unlimited power; there are limitations built into the laws20 themselves that the courts can enforce when these limitations are transgressed, particularly when grave abuse of discretion is present. In light of this well-defined parameters in the imposition of preventive suspension, we should not view preventive suspension from the extreme situation – that it can totally deprive an elective office holder of the prerogative to serve and is thus an effective interruption of an election official’s term.

Term limitation and preventive suspension are two vastly different aspects of an elective officials’ service in office and they do not overlap. As already mentioned above, preventive suspension involves protection of the service and of the people being served, and prevents the office holder from temporarily exercising the power of his office. Term limitation, on the other hand, is triggered after an elective official has served his three terms in office without any break. Its companion concept – interruption of a term – on the other hand, requires loss of title to office. If preventive suspension and term limitation or interruption have any commonality at all, this common point may be with respect to the discontinuity of service that may occur in both. But even on this point, they merely run parallel to each other and never intersect; preventive suspension, by its nature, is a temporary incapacity to render serviceduring an unbroken term; in the context of term limitation, interruption of service occurs after there has been abreak in the term.

b. Preventive Suspension and the Intent of the Three-Term Limit Rule

Strict adherence to the intent of the three-term limit rule demands that preventive suspension should not be considered an interruption that allows an elective official’s stay in office beyond three terms. A preventive suspension cannot simply be a term interruption because the suspended official continues to stay in office although he is barred from exercising the functions and prerogatives of the office within the suspension period.The best indicator of the suspended official’s continuity in office is the absence of a permanent replacement and the lack of the authority to appoint one since no vacancy exists.

To allow a preventively suspended elective official to run for a fourth and prohibited term is to close our eyes to this reality and to allow a constitutional violation through sophistry by equating the temporary inability to discharge the functions of office with the interruption of term that the constitutional provision contemplates. To be sure, many reasons exist, voluntary or involuntary – some of them personal and some of them by operation of law – that may temporarily prevent an elective office holder from exercising the functions of his office in the way that preventive suspension does. A serious extended illness, inability through force majeure, or the enforcement of a suspension as a penalty, to cite some involuntary examples, may prevent an office holder from exercising the functions of his office for a time without forfeiting title to office. Preventive suspension is no different because it disrupts actual delivery of service for a time within a term. Adopting such interruption of actual service as the standard to determine effective interruption of term under the three-term rule raises at least the possibility of confusion in implementing this rule, given the many modes and occasions when actual service may be interrupted in the course of serving a term of office. The standard may reduce the enforcement of the three-term limit rule to a case-to-case and possibly see-sawing determination of what an effective interruption is.

c. Preventive Suspension and Voluntary Renunciation

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Aldovino vs. COMELECPreventive suspension, because it is imposed by operation of law, does not involve a voluntary act on the part of the suspended official, except in the indirect sense that he may have voluntarily committed the act that became the basis of the charge against him. From this perspective, preventive suspension does not have the element of voluntariness that voluntary renunciation embodies. Neither does it contain the element of renunciation or loss of title to office as it merely involves the temporary incapacity to perform the service that an elective office demands. Thus viewed, preventive suspension is – by its very nature – the exact opposite of voluntary renunciation; it is involuntary and temporary, and involves only the actual delivery of service, not the title to the office. The easy conclusion therefore is that they are, by nature, different and non-comparable.

But beyond the obvious comparison of their respective natures is the more important consideration of how they affect the three-term limit rule.

Voluntary renunciation, while involving loss of office and the total incapacity to render service, is disallowed by the Constitution as an effective interruption of a term. It is therefore not allowed as a mode of circumventing the three-term limit rule.

Preventive suspension, by its nature, does not involve an effective interruption of a term and should therefore not be a reason to avoid the three-term limitation. It can pose as a threat, however, if we shall disregard its nature and consider it an effective interruption of a term. Let it be noted that a preventive suspension is easier to undertake than voluntary renunciation, as it does not require relinquishment or loss of office even for the briefest time. It merely requires an easily fabricated administrative charge that can be dismissed soon after a preventive suspension has been imposed. In this sense, recognizing preventive suspension as an effective interruption of a term can serve as a circumvention more potent than the voluntary renunciation that the Constitution expressly disallows as an interruption.

Conclusion

To recapitulate, Asilo’s 2004-2007 term was not interrupted by the Sandiganbayan-imposed preventive suspension in 2005, as preventive suspension does not interrupt an elective official’s term. Thus, the COMELEC refused to apply the legal command of Section 8, Article X of the Constitution when it granted due course to Asilo’s certificate of candidacy for a prohibited fourth term. By so refusing, the COMELEC effectively committed grave abuse of discretion amounting to lack or excess of jurisdiction; its action was a refusal to perform a positive duty required by no less than the Constitution and was one undertaken outside the contemplation of law.21

WHEREFORE, premises considered, we GRANT the petition and accordingly NULLIFY the assailed COMELEC rulings. The private respondent Wilfredo F. Asilo is declared DISQUALIFIED to run, and perforce to serve, as Councilor of Lucena City for a prohibited fourth term. Costs against private respondent Asilo.

SO ORDERED.

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Sema vs. COMELEC

Sema v. COMELEC (G.R. No. 177597, 2008) is a court case that was heard before the Supreme Court of the Philippines. It was consolidated with Marquez v. Comelec (G.R. No. 178628, 2008). It held that the Regional Assembly of the Autonomous Region in Muslim Mindanao does not have the power to create provinces and cities. Thus, the creation of the province of Shariff Kabunsuan was unconstitutional and that province no longer exists as a political entity in the Philippines.[1]

These consolidated certiorari, prohibition, mandamus and declaratory relief petitions sought the annulment of Commission on

Elections "Resolution No. 7902" (10 May 2007), treating Cotabato City as part of the legislative district of Shariff Kabunsuan.

In G.R. No. 177597, Bai Sandra S. A. Sema (Sema), asked the COMELEC "to exclude from the canvassing the votes cast in

Cotabato City for representative of the legislative district in question in the Philippine general election, 2007." In G.R. No.

178628, Perfecto Marquez, asked the Court "to order the COMELEC to conduct a special election for representative of the

“First District of Maguindanao with Cotabato City.”

The Ordinance appended to the 1987 Constitution of the Philippines apportioned 2 legislative districts for Maguindanao. The

first consists of Cotabato City and 8 municipalities. 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). Cotabato City, as part of Maguindanao’s first legislative district, is not part of the ARMM but of Region XII (having

voted against its inclusion in November 1989 plebiscite).

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, enacted Muslim Mindanao Autonomy Act No. 201 (MMA Act 201) creating the Province

ofShariff Kabunsuan composed of the 8 municipalities in the first district of Maguindanao.

Later, 2 new municipalities were carved out of the original 9, constituting Shariff Kabunsuan, resulting to total of 11. Cotabato

City is not part of Maguindanao. Maguindanao voters ratified Shariff Kabunsuan’s creation in 29 October 2006 plebiscite.

On 6 February 2007, Cotabato City passed Board 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. 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, adopted the COMELEC’s Law

Department recommendation under a Memorandum dated 27 February 2007. The COMELEC issued 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.

On 10 May 2007, the COMELEC issued Resolution No. 7902 (subject of these cases), 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).”

Meanwhile, the Shariff Kabunsuan creation plebiscite was supervised and officiated by the COMELEC pursuant to Resolution

No. 7727.

Option Votes

In favor for 285,372

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Sema vs. COMELEC

creation

Against the creation 8,802

The following municipalities seceded from Maguindanao and formed the new province. All of them were from the

first legislative district of Maguindanao.

Barira

Buldon

Datu Blah T. Sinsuat

Datu Odin Sinsuat

Kabuntalan

Matanog

Northern Kabuntalan

Parang

Sultan Kudarat

Sultan Mastura

Upi

Kabuntalan was chosen as the capital of the new province. The province was the first to be created under Republic Act No.

9054 or the Expanded ARMM law.

Sandra Sema questioned COMELEC Resolution 7902 which combined Shariff Kabunsuan and Cotabato City into a single

legislative district during the Philippine general election, 2007. Sema lost to incumbent Congress representative of the Shariff

Kabunsuan and Cotabato district, Didagen Dilangalen.[2]

[edit]Issues

The Court was asked to rule on "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 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."

Further, the High Tribunal had to render judgment on "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)."

[edit]Conclusion

On July 16, 2008 the Supreme Court of the Philippines's 33-page judgment (8-6) penned by Antonio Carpio annulled "Muslim

Mindanao Autonomy Act 201", which created Shariff Kabunsuan (carved out of Maguindanao, Autonomous Region in Muslim

Mindanao). Justice Antonio Carpio opined: "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."

Carpio stressed that “only Congress can create provinces and cities because the creation of provinces and cities necessarily

includes the creation of legislative districts. Creation of province or a city inherently involves the power to create a legislative

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Sema vs. COMELEC

district. The Constitution mandates that a province or a city with at least 250,000 inhabitants is entitled to at least one

representative."

The Court also declared unconstitutional the RLA’s power to create provinces and cities in the region but it did not pass upon

the constitutionality of the creation of new municipalities and barangays. Under Republic Act No. 9140 or the Expanded

ARMM Law, the RLA has the power to create new LGUs and to set its own criteria in creating, dividing, merging, or

abolishing LGUs.[3]

Carpio further ruled that "in the present 14th Congress, there are 219 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."

[edit]Summary

Carpio tersely put the judgment in this manner: "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.

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."

[edit]Aftermath

The landmark ruling resulted in the Philippines' reverting back to 80 provinces. The ruling also nullified the elections of the

governor, vice governor and provincial board of Shariff Kabunsuan and the entire provincial bureaucracy is deemed scrapped

as Shariff Kabunsuan reverts back as integral part of Maguindanao.[4]

Uncertainty loomed about the legal fate of local elected provincial officials in Shariff Kabunsuan. Among the proclaimed

winners in the 2007 local election are 2 board members and the vice governor. Former Sultan Kudarat mayor and 2007

Shariff Kabunsuan gubernatorial candidate Tucao Mastura said: "What will happen to the elected governor, vice governor,

and board members? We cannot afford to be under a governor not elected by the people of Shariff Kabunsuan." Rep.

Didagen Dilangalen of Shariff Kabunsuan, meanwhile, said "there is a need to declare vacant the position of governor, vice-

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Sema vs. COMELEC

governor, and board members in new Maguindanao province. There is no election held for the purpose of electing officials in

the undivided Maguindanao. The election held there (Maguindanao) is an exercise in futility."

Autonomous Region in Muslim Mindanao (ARMM) leaders on July 16, 2008 warned that the Court ruling would cause

leadership problem and unemployment in the province, for it will cause some of the elected officials and government

employees in Shariff Kabunsuan to lose their jobs. Sema v. Comelec reduced the number of provinces in ARMM to 5. ARMM

is composed of Maguindanao, Tawi-Tawi, Sulu, Lanao del Sur, Basilan (excluding Isabela City) and the city of Marawi.

Maguindanao Gov. Andal Ampatuan, however, would welcome the judgment, for it reverted to the old province 2 crucial

sources of income covered by Shariff Kabunsuan: the Parang seaport and Awang Airport in Datu Odin Sinsuat.

Shariff Kabunsuan Vice Governor Ibrahim Ibay said that "among those severely affected by the decision are the more than

400 government employees in his province, half of which used to work in the old Maguindanao provincial government. What

will happen to them? We dreamed for a separate province and now it is voided."

The ruling may also affect the conduct of August automated election in the region, since Shariff Kabunsuan and

Maguindanao are expected to use different kinds of machine for the elections. Maguindanao will use a direct recording

electronic technology that uses a touch-screen technology for voting, while Shariff Kabunsuan, along with other ARMM

provinces, will use optical mark reader technology, which will require voters to use a paper-based ballot to be fed to a

machine.

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Kida of Senate of the PhilippinesEN BANC 

[G.R. No. 196271, October 18, 2011] 

DATU MICHAEL ABAS KIDA, IN HIS PERSONAL CAPACITY, AND IN REPRESENTATION OF MAGUINDANAO FEDERATION OF AUTONOMOUS IRRIGATORS ASSOCIATION, INC., HADJI MUHMINA J. USMAN, JOHN ANTHONY L. LIM, JAMILON T. ODIN, ASRIN TIMBOL JAIYARI, MUJIB M. KALANG, ALIH AL-SAIDI J. SAPI-E, KESSAR DAMSIE

ABDIL, AND BASSAM ALUH SAUPI, PETITIONERS, VS. SENATE OF THE PHILIPPINES, REPRESENTED BY ITS PRESIDENT JUAN PONCE ENRILE, HOUSE OF REPRESENTATIVES, THRU SPEAKER FELICIANO BELMONTE,

COMMISSION ON ELECTIONS, THRU ITS CHAIRMAN, SIXTO BRILLANTES, JR., PAQUITO OCHOA, JR., OFFICE OF THE PRESIDENT EXECUTIVE SECRETARY, FLORENCIO ABAD, JR., SECRETARY OF BUDGET, AND ROBERTO TAN,

TREASURER OF THE PHILIPPINES, RESPONDENTS. 

[G.R. NO. 196305]

BASARI D. MAPUPUNO, PETITIONER, VS. SIXTO BRILLANTES, IN HIS CAPACITY AS CHAIRMAN OF THE COMMISSION ON ELECTIONS, FLORENCIO ABAD, JR. IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF

BUDGET AND MANAGEMENT, PACQUITO OCHOA, JR., IN HIS CAPACITY AS EXECUTIVE SECRETARY, JUAN PONCE ENRILE, IN HIS CAPACITY AS SENATE PRESIDENT, AND FELICIANO BELMONTE, IN HIS CAPACITY AS

SPEAKER OF THE HOUSE OF REPRESENTATIVES, RESPONDENTS. 

[G.R. NO. 197221]

REP. EDCEL C. LAGMAN, PETITIONER, VS. PAQUITO N. OCHOA, JR., IN HIS CAPACITY AS THE EXECUTIVE SECRETARY, AND THE COMMISSION ON ELECTIONS, RESPONDENTS. 

[G.R. NO. 197280]

ALMARIM CENTI TILLAH, DATU CASAN CONDING CANA, AND PARTIDO DEMOKRATIKO PILIPINO LAKAS NG BAYAN (PDP-LABAN), PETITIONERS, VS. THE COMMISSION ON ELECTIONS, THROUGH ITS CHAIRMAN, SIXTO

BRILLANTES, JR., HON. PAQUITO N. OCHOA, JR., IN HIS CAPACITY AS EXECUTIVE SECRETARY, HON. FLORENCIO B. ABAD, JR., IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF BUDGET AND

MANAGEMENT, AND HON. ROBERTO B. TAN, IN HIS CAPACITY AS TREASURER OF THE PHILIPPINES, RESPONDENTS. 

[G.R. NO. 197282]

ATTY. ROMULO B. MACALINTAL, PETITIONER, VS. COMMISSION ON ELECTIONS AND THE OFFICE OF THE PRESIDENT, THROUGH EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., RESPONDENTS. LUIS "BAROK" BIRAOGO, PETITIONER, VS. THE COMMISSION ON ELECTIONS AND EXECUTIVE SECRETARY PAQUITO N.

OCHOA, JR., RESPONDENTS. 

[G.R. NO. 197392]

JACINTO V. PARAS, PETITIONER, VS. EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., AND THE COMMISSION ON ELECTIONS, RESPONDENTS. 

[G.R. NO. 197454]

MINORITY RIGHTS FORUM, PHILIPPINES, INC., RESPONDENTS-INTERVENOR.

D E C I S I O N 

BRION, J.:

On June 30, 2011, Republic Act (RA) No. 10153, entitled "An Act Providing for the Synchronization of the Elections in the Autonomous Region in Muslim Mindanao (ARMM) with the National and Local Elections and for Other Purposes" was enacted. The law reset the ARMM elections from  the 8th  of August 2011, to the second Monday of May 2013 and every three (3) years

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Kida of Senate of the Philippinesthereafter, to coincide with the country's regular national and local elections. The law as well granted the President the power to "appoint officers-in-charge (OICs) for the Office of the Regional Governor, the Regional Vice-Governor, and the Members of the Regional Legislative Assembly, who shall perform the functions pertaining to the said offices until the officials duly elected in the May 2013 elections shall have qualified and assumed office."

Even before its formal passage, the bills that became RA No. 10153 already spawned petitions against their validity; House Bill No. 4146 and Senate Bill No. 2756 were challenged in petitions filed with this Court.  These petitions multiplied after RA No. 10153 was passed.

Factual Antecedents  

The State, through Sections 15 to 22, Article X of the 1987 Constitution, mandated the creation of autonomous regions in Muslim Mindanao and the Cordilleras.  Section 15 states:

Section 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.

Section 18 of the Article, on the other hand, directed Congress to enact an organic act for these autonomous regions to concretely carry into effect the granted autonomy.

Section 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 a 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.

On August 1, 1989 or two years after the effectivity of the 1987 Constitution, Congress acted through Republic Act (RA) No. 6734 entitled "An Act Providing for an Organic Act for the Autonomous Region in Muslim Mindanao."  A plebiscite was held on November 6, 1990 as required by Section 18(2), Article X of RA No. 6734, thus fully establishing the Autonomous Region of Muslim Mindanao (ARMM).  The initially assenting provinces were Lanao del Sur, Maguindanao, Sulu and Tawi-tawi.  RA No. 6734 scheduled the first regular elections for the regional officials of the ARMM on a date not earlier than 60 days nor later than 90 days after its ratification.

RA No. 9054 (entitled "An Act to Strengthen and Expand the Organic Act for the Autonomous Region in Muslim Mindanao, Amending for the Purpose Republic Act No. 6734, entitled An Act Providing for the Autonomous Region in Muslim Mindanao, as Amended") was the next legislative act passed. This law provided further refinement in the basic ARMM structure first defined in the original organic act, and reset the regular elections for the ARMM regional officials to the second Monday of September 2001.

Congress passed the next law affecting ARMM - RA No. 9140[1] - on June 22, 2001.  This law reset the first regular elections originally scheduled under RA No. 9054, to November 26, 2001. It likewise set the plebiscite to ratify RA No. 9054 to not later than August 15, 2001.

RA No. 9054 was ratified in a plebiscite held on August 14, 2001. The province of Basilan and Marawi City voted to join ARMM on the same date.

RA No. 9333[2] was subsequently passed by Congress to reset the ARMM regional elections to the 2nd Monday of August 2005, and on the same date every 3 years thereafter. Unlike RA No. 6734 and RA No. 9054, RA No. 9333 was not ratified in a plebiscite.

Pursuant to RA No. 9333, the next ARMM regional elections should have been held on August 8, 2011. COMELEC had begun preparations for these elections and had accepted certificates of candidacies for the various regional offices to be elected. But on June 30, 2011, RA No. 10153 was enacted, resetting the ARMM elections to May 2013, to coincide with the regular national and

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Kida of Senate of the Philippineslocal elections of the country.

RA No. 10153 originated in the House of Representatives as House Bill (HB) No. 4146, seeking the postponement of the ARMM elections scheduled on August 8, 2011. On March 22, 2011, the House of Representatives passed HB No. 4146, with one hundred ninety one (191) Members voting in its favor.

After the Senate received HB No. 4146, it adopted its own version, Senate Bill No. 2756 (SB No. 2756), on June 6, 2011. Thirteen (13) Senators voted favorably for its passage. On June 7, 2011, the House of Representative concurred with the Senate amendments, and on June 30, 2011, the President signed RA No. 10153 into law.

As mentioned, the early challenge to RA No. 10153 came through a petition filed with this Court - G.R. No. 196271[3] - assailing the constitutionality of both HB No. 4146 and SB No. 2756, and challenging the validity of  RA No. 9333 as well for non-compliance with the constitutional plebiscite requirement. Thereafter, petitioner Basari Mapupuno in G.R. No. 196305 filed another petition[4] also assailing the validity of RA No. 9333.

With the enactment into law of RA No. 10153, the COMELEC stopped its preparations for the ARMM elections.  The law gave rise as well to the filing of the following petitions against its constitutionality:

a) Petition for Certiorari and Prohibition[5] filed by Rep. Edcel Lagman as a member of the House of Representatives against Paquito Ochoa, Jr. (in his capacity as the Executive Secretary) and the COMELEC, docketed as G.R. No. 197221; 

b) Petition for Mandamus and Prohibition[6] filed by Atty. Romulo Macalintal as a taxpayer against the COMELEC, docketed as G.R. No. 197282;

c) Petition for Certiorari and Mandamus, Injunction and Preliminary Injunction[7] filed by Louis "Barok" Biraogo against the COMELEC and Executive Secretary Paquito N. Ochoa, Jr., docketed as G.R. No. 197392; and

d) Petition for Certiorari and Mandamus[8] filed by Jacinto Paras as a member of the House of Representatives against Executive Secretary Paquito Ochoa, Jr. and the COMELEC, docketed as G.R. No. 197454.

Petitioners Alamarim Centi Tillah and Datu Casan Conding Cana as registered voters from the ARMM, with the Partido Demokratiko Pilipino Lakas ng Bayan (a political party with candidates in the ARMM regional elections scheduled for August 8, 2011), also filed a Petition for Prohibition and Mandamus[9] against the COMELEC, docketed as G.R. No. 197280, to assail the constitutionality of RA No. 9140, RA No. 9333 and RA No. 10153.

Subsequently, Anak Mindanao Party-List, Minority Rights Forum Philippines, Inc. and Bangsamoro Solidarity Movement filed their own  Motion for Leave to Admit their Motion for Intervention and Comment-in-Intervention dated July 18, 2011. On July 26, 2011, the Court granted the motion. In the same Resolution, the Court ordered the consolidation of all the petitions relating to the constitutionality of HB No. 4146, SB No. 2756, RA No. 9333, and RA No. 10153.

Oral arguments were held on August 9, 2011 and August 16, 2011.  Thereafter, the parties were instructed to submit their respective memoranda within twenty (20) days.

On September 13, 2011, the Court issued a temporary restraining order enjoining the implementation of RA No. 10153 and ordering the incumbent elective officials of ARMM to continue to perform their functions should these cases not be decided by the end of their term on September 30, 2011.

The Arguments

The petitioners assailing RA No. 9140, RA No. 9333 and RA No. 10153 assert that these laws amend RA No. 9054 and thus, have to comply with the supermajority vote and plebiscite requirements prescribed under Sections 1 and 3, Article XVII of RA No. 9094 in order to become effective.

The petitions assailing RA No. 10153 further maintain that it is unconstitutional for its failure to comply with the three-reading requirement of Section 26(2), Article VI of the Constitution.  Also cited as grounds are the alleged violations of the right of suffrage of the people of ARMM, as well as the failure to adhere to the "elective and representative" character of the executive and legislative departments of the ARMM. Lastly, the petitioners challenged the grant to the President of the power to appoint OICs to undertake the functions of the elective ARMM officials until the officials elected under the May 2013 regular elections

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The Issues  

From the parties' submissions, the following issues were recognized and argued by the parties in the oral arguments of August 9 and 16, 2011:

I. Whether the 1987 Constitution mandates the synchronization of elections

II. Whether the passage of RA No. 10153 violates Section 26(2), Article VI of the 1987 Constitution

III. Whether the passage of RA No. 10153 requires a supermajority vote and plebiscite

A. Does the postponement of the ARMM regular elections constitute an amendment to Section 7, Article XVIII of RA No. 9054?

B. Does the requirement of a supermajority vote for amendments or revisions to RA No. 9054 violate Section 1 and Section 16(2), Article VI of the 1987 Constitution and the corollary doctrine on irrepealable laws?

C. Does the requirement of a plebiscite apply only in the creation of autonomous regions under paragraph 2, Section 18, Article X of the 1987 Constitution?

IV. Whether RA No. 10153 violates the autonomy granted to the ARMM

V. Whether the grant of the power to appoint OICs violates:

A.   Section 15, Article X of the 1987 ConstitutionB. Section 16, Article X of the 1987 ConstitutionC. Section 18, Article X of the 1987 Constitution

VI. Whether the proposal to hold special elections is constitutional and legal.

We shall discuss these issues in the order they are presented above.

OUR RULING

We resolve to DISMISS the petitions and thereby UPHOLD the constitutionality of RA No. 10153 in toto.

I.  Synchronization as a recognized constitutional mandate 

The respondent Office of the Solicitor General (OSG) argues that the Constitution mandates synchronization, and in support of this position, cites Sections 1, 2 and 5, Article XVIII (Transitory Provisions) of the 1987 Constitution, which provides:

Section 1. The first elections of Members of the Congress under this Constitution shall be held on the second Monday of May, 1987.

The first local elections shall be held on a date to be determined by the President, which may be simultaneous with the election of the Members of the Congress. It shall include the election of all Members of the city or municipal councils in the Metropolitan Manila area.

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Kida of Senate of the PhilippinesSection 2. The Senators, Members of the House of Representatives and the local officials first elected under this Constitution shall serve until noon of June 30, 1992.

Of the Senators elected in the election in 1992, the first twelve obtaining the highest number of votes shall serve for six year and the remaining twelve for three years.

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Section 5. The six-year term of the incumbent President and Vice President elected in the February 7, 1986 election is, for purposes of synchronization of elections, hereby extended to noon of June 30, 1992.

The first regular elections for President and Vice-President under this Constitution shall be held on the second Monday of May, 1992.

We agree with this position. 

While the Constitution does not expressly state that Congress has to synchronize national and local elections, the clear intent towards this objective can be gleaned from the Transitory Provisions (Article XVIII) of the Constitution,[10] which show the extent to which the Constitutional Commission, by deliberately making adjustments to the terms of the incumbent officials, sought to attain synchronization of elections.[11]

The objective behind setting a common termination date for all elective officials, done among others through the shortening the terms of the twelve winning senators with the least number of votes, is to synchronize the holding of all future elections - whether national or local - to once every three years.[12] This intention finds full support in the discussions during the Constitutional Commission deliberations.[13]

These Constitutional Commission exchanges, read with the provisions of the Transitory Provisions of the Constitution, all serve as patent indicators of the constitutional mandate to hold synchronized national and local elections, starting the second Monday of May, 1992 and for all the following elections.

This Court was not left behind in recognizing the synchronization of the national and local elections as a constitutional mandate. In Osmeña v. Commission on Elections,[14] we explained:

It is clear from the aforequoted provisions of the 1987 Constitution that the terms of office of Senators, Members of the House of Representatives, the local officials, the President and the Vice-President have been synchronized to end on the same hour, date and year -- noon of June 30, 1992.

It is likewise evident from the wording of the above-mentioned Sections that the term of synchronization is used synonymously as the phraseholding simultaneously since this is the precise intent in terminating their Office Tenure on the same day or occasion. This common termination date will synchronize future elections to once every three years (Bernas, the Constitution of the Republic of the Philippines, Vol. II, p. 605).

That the election for Senators, Members of the House of Representatives and the local officials (under Sec. 2, Art. XVIII) will have to be synchronized with the election for President and Vice President (under Sec. 5, Art. XVIII) is likewise evident from the x x x  records of the proceedings in the Constitutional Commission. [Emphasis supplied.]

Although called regional elections, the ARMM elections should be included among the elections to be synchronized as it is a "local" election based on the wording and structure of the Constitution.

A basic rule in constitutional construction is that the words used should be understood in the sense that they have in common use and given their ordinary meaning, except when technical terms are employed, in which case the significance thus attached to them prevails.[15] As this Court explained in People v. Derilo,[16] "[a]s the Constitution is not primarily a lawyer's document, its language should be understood in the sense that it may have in common. Its words should be given their ordinary meaning except where technical terms are employed."

Understood in its ordinary sense, the word "local" refers to something that primarily serves the needs of a particular limited district, often a community or minor political subdivision.[17] Regional elections in the ARMM for the positions of governor, vice-governor and regional assembly representatives obviously fall within this classification, since they pertain to the elected officials

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From the perspective of the Constitution, autonomous regions are considered one of the forms of local governments, as evident from Article X of the Constitution entitled "Local Government."  Autonomous regions are established and discussed under Sections 15 to 21 of this Article - the article wholly devoted to Local Government. That an autonomous region is considered a form of local government is also reflected in Section 1, Article X of the Constitution, which provides:

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.

Thus, we find the contention - that the synchronization mandated by  the Constitution does not include the regional elections of the ARMM -unmeritorious.  We shall refer to synchronization in the course of our discussions below, as this concept permeates the consideration of the various issues posed in this case and must be recalled time and again for its complete resolution.

II.  The President's Certification on the Urgency of RA No. 10153 

The petitioners in G.R. No. 197280 also challenge the validity of RA No. 10153 for its alleged failure to comply with Section 26(2), Article VI of the Constitution[18] which provides that before bills passed by either the House or the Senate can become laws, they must pass through three readings on separate days. The exception is when the President certifies to the necessity of the bill's immediate enactment.

The Court, in Tolentino v. Secretary of Finance,[19] explained the effect of the President's certification of necessity in the following manner:

The presidential certification dispensed with the requirement not only of printing but also that of reading the bill on separate days. The phrase "except when the President certifies to the necessity of its immediate enactment, etc." in Art. VI, Section 26[2] qualifies the two stated conditions before a bill can become a law: [i] the bill has passed three readings on separate days and [ii] it has been printed in its final form and distributed three days before it is finally approved.

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That upon the certification of a bill by the President, the requirement of three readings on separate days and of printing and distribution can be dispensed with is supported by the weight of legislative practice. For example, the bill defining the certiorari jurisdiction of this Court which, in consolidation with the Senate version, became Republic Act No. 5440, was passed on second and third readings in the House of Representatives on the same day [May 14, 1968] after the bill had been certified by the President as urgent.

In the present case, the records show that the President wrote to the Speaker of the House of Representatives to certify the necessity of the immediate enactment of a law synchronizing the ARMM elections with the national and local elections.[20]  Following our Tolentino ruling, the President's certification exempted both the House and the Senate from having to comply with the three separate readings requirement.

On the follow-up contention that no necessity existed for the immediate enactment of these bills since there was no public calamity or emergency that had to be met, again we hark back to our ruling in Tolentino:

The sufficiency of the factual basis of the suspension of the writ ofhabeas corpus or declaration of martial law Art. VII, Section 18, or the existence of a national emergency justifying the delegation of extraordinary powers to the President under Art. VI, Section 23(2) is subject to judicial review because basic rights of individuals may be of hazard. But the factual basis of presidential certification of bills, which involves doing away with procedural requirements designed to insure that bills are duly considered by members of Congress, certainly should elicit a different standard of review. [Emphasis supplied.]

The House of Representatives and the Senate - in the exercise of their legislative discretion - gave full recognition to the President's certification and promptly enacted RA No. 10153. Under the circumstances, nothing short of grave abuse of discretion on the part of the two houses of Congress can justify our intrusion under our power of judicial review.[21]

The petitioners, however, failed to provide us with any cause or justification for this course of action.  Hence, while the judicial department and this Court are not bound by the acceptance of the President's certification by both the House of Representatives and the Senate, prudent exercise of our powers and respect due our co-equal branches of government in matters committed to

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In any case, despite the President's certification, the two-fold purpose that underlies the requirement for three readings on separate days of every bill must always be observed to enable our legislators and other parties interested in pending bills to intelligently respond to them.  Specifically,  the purpose with respect to Members of Congress is: (1) to inform the legislators of the matters they shall vote on and (2) to give them notice that a measure is in progress through the enactment process.[23]

We find, based on the records of the deliberations on the law, that both advocates and the opponents of the proposed measure had sufficient opportunities to present their views. In this light, no reason exists to nullify RA No. 10153 on the cited ground.

III.  A.  RA No. 9333 and RA No. 10153 are not amendments to RA No. 9054 

The effectivity of RA No. 9333 and RA No. 10153 has also been challenged because they did not comply with Sections 1 and 3, Article XVII of RA No. 9054 in amending this law. These provisions require:

Section 1. Consistent with the provisions of the Constitution, this Organic Act may be reamended or revised by the Congress of the Philippines upon a vote of two-thirds (2/3) of the Members of the House of Representatives and of the Senate voting separately.

Section 3. Any amendment to or revision of this Organic Act shall become effective only when approved by a majority of the vote cast in a plebiscite called for the purpose, which shall be held not earlier than sixty (60) days or later than ninety (90) days after the approval of such amendment or revision.

We find no merit in this contention. 

In the first place, neither RA No. 9333 nor RA No. 10153 amends RA No. 9054.  As an examination of these laws will show, RA No. 9054 only provides for the schedule of the first ARMM elections and does not fix the date of the regular elections.  A need therefore existed for the Congress to fix the date of the subsequent ARMM regular elections, which it did by enacting RA No. 9333 and thereafter, RA No. 10153. Obviously, these subsequent laws - RA No. 9333 and RA No. 10153 - cannot be considered amendments to RA No. 9054 as they did not change or revise any provision in the latter law; they merely filled in a gap in RA No. 9054 or supplemented the law by providing the date of the subsequent regular elections.

This view - that Congress thought it best to leave the determination of the date of succeeding ARMM elections to legislative discretion - finds support in ARMM's recent history.

To recall, RA No. 10153 is not the first law passed that rescheduled the ARMM elections.  The First Organic Act - RA No. 6734 - not only did not fix the date of the subsequent elections; it did not even fix the specific date of the first ARMM elections,[24] leaving the date to be fixed in another legislative enactment. Consequently, RA No. 7647,[25] RA No. 8176,[26] RA No. 8746,[27] RA No. 8753,[28]and RA No. 9012[29] were all enacted by Congress to fix the dates of the ARMM elections. Since these laws did not change or modify any part or provision of RA No. 6734, they were not amendments to this latter law.  Consequently, there was no need to submit them to any plebiscite for ratification.

The Second Organic Act - RA No. 9054 - which lapsed into law on March 31, 2001, provided that the first elections would be held on the second Monday of September 2001. Thereafter, Congress passed RA No. 9140[30] to reset the date of the ARMM elections.  Significantly, while RA No. 9140 also scheduled the plebiscite for the ratification of the Second Organic Act (RA No. 9054), the new date of the ARMM regional elections fixed in RA No. 9140 was not among the provisions ratified in the plebiscite held to approve RA No. 9054. Thereafter, Congress passed RA No. 9333,[31] which further reset the date of the ARMM regional elections. Again, this law was not ratified through a plebiscite.

From these legislative actions, we see the clear intention of Congress to treat the laws which fix the date of the subsequent ARMM elections as separate and distinct from the Organic Acts. Congress only acted consistently with this intent when it passed RA No. 10153 without requiring compliance with the amendment prerequisites embodied in Section 1 and Section 3, Article XVII of RA No. 9054.

III. B. Supermajority voting requirement unconstitutional for giving RA No. 9054 the character of an irrepealable law

Even assuming that RA No. 9333 and RA No. 10153 did in fact amend RA No. 9054, the supermajority (2/3) voting requirement

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Section 16(2), Article VI of the Constitution provides that a "majority of each House shall constitute a quorum to do business." In other words, as long as majority of the members of the House of Representatives or the Senate are present, these bodies have the quorum needed to conduct business and hold session.  Within a quorum, a vote of majority is generally sufficient to enact laws or approve acts.

In contrast, Section 1, Article XVII of RA No. 9054 requires a vote of no less than two-thirds (2/3) of the Members of the House of Representatives and of the Senate, voting separately, in order to effectively amend RA No. 9054. Clearly, this 2/3 voting requirement is higher than what the Constitution requires for the passage of bills, and served to restrain the plenary powers of Congress to amend, revise or repeal the laws it had passed.  The Court's pronouncement in City of Davao v. GSIS[33] on this subject best explains the basis and reason for the unconstitutionality:

Moreover, it would be noxious anathema to democratic principlesfor a legislative body to have the ability to bind the actions of future legislative body, considering that both assemblies are regarded with equal footing, exercising as they do the same plenary powers.Perpetual infallibility is not one of the attributes desired in a legislative body, and a legislature which attempts to forestall future amendments or repeals of its enactments labors under delusions of omniscience.

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A state legislature has a plenary law-making power over all subjects, whether pertaining to persons or things, within its territorial jurisdiction, either to introduce new laws or repeal the old, unless prohibited expressly or by implication by the federal constitution or limited or restrained by its own. It cannot bind itself or its successors by enacting irrepealable laws except when so restrained. Every legislative body may modify or abolish the acts passed by itself or its predecessors. This power of repeal may be exercised at the same session at which the original act was passed; and even while a bill is in its progress and before it becomes a law. This legislature cannot bind a future legislature to a particular mode of repeal. It cannot declare in advance the intent of subsequent legislatures or the effect of subsequent legislation upon existing statutes.[34] (Emphasis ours.)

Thus, while a supermajority is not a total ban against a repeal, it is a limitation in excess of what the Constitution requires on the passage of bills and is constitutionally obnoxious because it significantly constricts the future legislators' room for action and flexibility.

III. C. Section 3, Article XVII of RA No. 9054 excessively enlarged the plebiscite requirement found in Section 18, Article X of the Constitution

The requirements of RA No. 9054 not only required an unwarranted supermajority, but enlarged as well the plebiscite requirement, as embodied in its Section 3, Article XVII of that Act.  As we did on the supermajority requirement, we find the enlargement of the plebiscite requirement required under Section 18, Article X of the Constitution to be excessive to point of absurdity and, hence, a violation of the Constitution.

Section 18, Article X of the Constitution states that the plebiscite is required only for the creation of autonomous regions and for determining which provinces, cities and geographic areas will be included in the autonomous regions. While the settled rule is that amendments to the Organic Act have to comply with the plebiscite requirement in order to become effective,[35] questions on the extent of the matters requiring ratification may unavoidably arise because of the seemingly general terms of the Constitution and the obvious absurdity that would result if a plebiscite were to be required for every statutory amendment.

Section 18, Article X of the Constitution plainly states that "The creation of the autonomous region shall be effective when approved by the majority of the votes case by the constituent units in a plebiscite called for the purpose." With these wordings as standard, we interpret the requirement to mean that only amendments to, or revisions of, the Organic Act constitutionally-essential to the creation of autonomous regions - i.e., those aspects specifically mentioned in the Constitution which Congress must provide for in the Organic Act - require ratification through a plebiscite.  These amendments to the Organic Act are those that relate to: (a) the basic structure of the regional government; (b) the region's judicial system, i.e., the  special  courts  with personal, family, and property law jurisdiction; and, (c) the grant and extent of the legislative powers constitutionally conceded to the regional government under Section 20, Article X of the Constitution.[36]

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Kida of Senate of the PhilippinesThe date of the ARMM elections does not fall under any of the matters that the Constitution specifically mandated Congress to provide for in the Organic Act. Therefore, even assuming that the supermajority votes and the plebiscite requirements are valid, any change in the date of elections cannot be construed as a substantial amendment of the Organic Act that would require compliance with these requirements.

IV.  The synchronization issue 

As we discussed above, synchronization of national and local elections is a constitutional mandate that Congress must provide for and this synchronization must include the ARMM elections.  On this point, an existing law in fact already exists - RA No. 7166 - as the forerunner of the current RA No. 10153. RA No. 7166 already provides for the synchronization of local elections with the national and congressional elections. Thus, what RA No. 10153 provides is an old matter for local governments (with the exception of barangay and Sanggunian Kabataan elections where the terms are not constitutionally provided) and is technically a reiteration of what is already reflected in the law, given that regional elections are in reality local elections by express constitutional recognition.[37]

To achieve synchronization, Congress necessarily has to reconcile the schedule of the ARMM's regular elections (which should have been held in August 2011 based on RA No. 9333) with the fixed schedule of the national and local elections (fixed by RA No. 7166 to be held in May 2013).

During the oral arguments, the Court identified the three options open to Congress in order to resolve this problem. These options are: (1) to allow the elective officials in the ARMM to remain in office in a hold over capacity, pursuant to Section 7(1), Article VII of RA No. 9054, until those elected in the synchronized elections assume office;[38] (2) to hold special elections in the ARMM, with the terms of those elected to expire when those elected in the synchronized elections assume office; or (3) to authorize the President to appoint OICs, pursuant to Section 3 of RA No. 10153, also until those elected in the synchronized elections assume office.

As will be abundantly clear in the discussion below, Congress, in choosing to grant the President the power to appoint OICs, chose the correct option and passed RA No. 10153 as a completely valid law.

V. The Constitutionality of RA No. 10153

A. Basic Underlying Premises

To fully appreciate the available options, certain underlying material premises must be fully understood.  The first is the extent of the powers of Congress to legislate; thesecond is the constitutional mandate for the synchronization of elections; and the thirdis on the concept of autonomy as recognized and established under the 1987 Constitution.

The grant of legislative power to Congress is broad, general and comprehensive.[39]The legislative body possesses plenary power for all purposes of civil government.[40]Any power, deemed to be legislative by usage and tradition, is necessarily possessed by Congress, unless the Constitution has lodged it elsewhere.[41]  Except as limited by the Constitution, either expressly or impliedly, legislative power embraces all subjects and extends to all matters of general concern or common interest.[42]

The constitutional limitations on legislative power are either express or implied. The express limitations are generally provided in some provisions of the Declaration of Principles and State Policies (Article 2) and in the provisions Bill of Rights (Article 3).  Other constitutional provisions (such as the initiative and referendum clause of Article 6, Sections 1 and 32, and the autonomy provisions of Article X) provide their own express limitations. The implied limitations are found "in the evident purpose which was in view and the circumstances and historical events which led to the enactment of the particular provision as a part of organic law."[43]

The constitutional provisions on autonomy - specifically, Sections 15 to 21 of Article X of the Constitution - constitute express limitations on legislative power as they define autonomy, its requirements and its parameters, thus limiting what is otherwise the unlimited power of Congress to legislate on the governance of the autonomous region.

Of particular relevance to the issues of the present case are the limitations posed by the prescribed basic structure of government - i.e., that the government must have an executive department and a legislative assembly, both of which must be elective and representative of the constituent political units; national government, too, must not encroach on the legislative powers granted under Section 20, Article X. Conversely and as expressly reflected in Section 17, Article X, "all powers and functions not granted by this Constitution or by law to the autonomous regions shall be vested in the National Government."

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The totality of Sections 15 to 21 of Article X should likewise serve as a standard that Congress must observe in dealing with legislation touching on the affairs of the autonomous regions.  The terms of these sections leave no doubt on what the Constitution intends - the idea of self-rule or self-government, in particular, the power to legislate on a wide array of social, economic and administrative matters. But equally clear under these provisions are the permeating principles of national sovereignty and the territorial integrity of the Republic, as expressed in the above-quoted Section 17 and in Section 15.[44]  In other words, the Constitution and the supporting jurisprudence, as they now stand, reject the notion of imperium et imperio[45] in the relationship between the national and the regional governments.

In relation with synchronization, both autonomy and the synchronization of national and local elections are recognized and established constitutional mandates, with one being as compelling as the other.  If their compelling force differs at all, the difference is in their coverage; synchronization operates on and affects the whole country, while regional autonomy - as the term suggests - directly carries a narrower regional effect although its national effect cannot be discounted.

These underlying basic concepts characterize the powers and limitations of Congress when it acted on RA No. 10153.  To succinctly describe the legal situation that faced Congress then, its decision to synchronize the regional elections with the national, congressional and all other local elections (save for barangay and sangguniang kabataan elections) left it with the problem of how to provide the ARMM with governance in the intervening period between the expiration of the term of those elected in August 2008 and the assumption to office - twenty-one (21) months away - of those who will win in the synchronized elections on May 13, 2013.

The problem, in other words, was for interim measures for this period, consistent with the terms of the Constitution and its established supporting jurisprudence, and with the respect due to the concept of autonomy.  Interim measures, to be sure, is not a strange phenomenon in the Philippine legal landscape. The Constitution's Transitory Provisions themselves collectively provide measures for transition from the old constitution to the new[46]  and for the introduction of new concepts.[47]  As previously mentioned, the adjustment of elective terms and of elections towards the goal of synchronization first transpired under the Transitory Provisions. The adjustments, however, failed to look far enough or deeply enough, particularly into the problems that synchronizing regional autonomous elections would entail; thus, the present problem is with us today.

The creation of local government units also represents instances when interim measures are required.  In the creation of Quezon del Sur[48] and Dinagat Islands,[49] the creating statutes authorized the President to appoint an interim governor, vice-governor and members of the sangguniang panlalawigan although these positions are essentially elective in character; the appointive officials were to serve until a new set of provincial officials shall have been elected and qualified.[50]  A similar authority to appoint is provided in the transition of a local government from a sub-province to a province.[51]

In all these, the need for interim measures is dictated by necessity; out-of-the-way arrangements and approaches were adopted or used in order to adjust to the goal or objective in sight in a manner that does not do violence to the Constitution and to reasonably accepted norms.  Under these limitations, the choice of measures was a question of wisdom left to congressional discretion.

To return to the underlying basic concepts, these concepts shall serve as the guideposts and markers in our discussion of the options available to Congress to address the problems brought about by the synchronization of the ARMM elections, properly understood as interim measures that Congress had to provide.  The proper understanding of the options as interim measures assume prime materiality as it is under these terms that the passage of RA No. 10153 should be measured, i.e., given the constitutional objective of synchronization that cannot legally be faulted, did Congress gravely abuse its discretion or violate the Constitution when it addressed through RA No. 10153 the concomitant problems that the adjustment of elections necessarily brought with it?  

B. Holdover Option is Unconstitutional

We rule out the first option - holdover for those who were elected in executive and legislative positions in the ARMM during the 2008-2011 term - as an option that Congress could have chosen because a holdover violates Section 8, Article X of the Constitution.  This provision states:

Section 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. [emphases ours]

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Since elective ARMM officials are local officials, they are covered and bound by the three-year term limit prescribed by the Constitution; they cannot extend their term through a holdover. As this Court put in Osmeña v. COMELEC:[52]

It is not competent for the legislature to extend the term of officers by providing that they shall hold over until their successors are elected and qualified where the constitution has in effect or by clear implication prescribed the term and when the Constitution fixes the day on which the official term shall begin, there is no legislative authority to continue the office beyond that period, even though the successors fail to qualify within the time.

In American Jurisprudence it has been stated as follows:

"It has been broadly stated that the legislature cannot, by an act postponing the election to fill an office the term of which is limited by the Constitution, extend the term of the incumbent beyond the period as limited by the Constitution." [Emphasis ours.]

Independently of the Osmeña ruling, the primacy of the Constitution as the supreme law of the land dictates that where the Constitution has itself made a determination or given its mandate, then the matters so determined or mandated should be respected until the Constitution itself is changed by amendment or repeal through the applicable constitutional process. A necessary corollary is that none of the three branches of government can deviate from the constitutional mandate except only as the Constitution itself may allow.[53] If at all, Congress may only pass legislation filing in details to fully operationalize the constitutional command or to implement it by legislation if it is non-self-executing; this Court, on the other hand, may only interpret the mandate if an interpretation is appropriate and called for.[54]

In the case of the terms of local officials, their term has been fixed clearly and unequivocally, allowing no room for any implementing legislation with respect to the fixed term itself and no vagueness that would allow an interpretation from this Court. Thus, the term of three years for local officials should stay at three (3) years as fixed by the Constitution and cannot be extended by holdover by Congress.

If it will be claimed that the holdover period is effectively another term mandated by Congress, the net result is for Congress to create a new term and to appoint the occupant for the new term. This view - like the  extension of the elective term - is constitutionally infirm because Congress cannot do indirectly what it cannot do directly, i.e., to act in a way that would effectively extend the term of the incumbents. Indeed, if acts that cannot be legally done directly can be done indirectly, then all laws would be illusory.[55] Congress cannot also create a new term and effectively appoint the occupant of the position for the new term. This is effectively an act of appointment by Congress and an unconstitutional intrusion into the constitutional appointment power of the President.[56] Hence, holdover - whichever way it is viewed - is a constitutionally infirm option that Congress could not have undertaken.

Jurisprudence, of course, is not without examples of cases where the question of holdover was brought before, and given the imprimatur of approval by, this Court. The present case though differs significantly from past cases with contrary rulings, particularly from Sambarani v. COMELEC,[57] Adap v. Comelec,[58] and Montesclaros v. Comelec,[59]  where the Court ruled that the elective officials could hold on to their positions in a hold over capacity.

All these past cases refer to elective barangay or sangguniang kabataan  officials  whose  terms of office are  not explicitly provided for in  the  Constitution;  the present case, on the other hand, refers to local elective officials - the ARMM Governor, the ARMM Vice-Governor, and the members of the Regional Legislative Assembly - whose terms fall within the three-year term limit set by Section 8, Article X of the Constitution. Because of their constitutionally limited term, Congress cannot legislate an extension beyond the term for which they were originally elected.

Even assuming that holdover is constitutionally permissible, and there had been statutory basis for it (namely Section 7, Article VII of RA No. 9054) in the past,[60] we have to remember that the rule of holdover can only apply as an available option where no express or implied legislative intent to the contrary exists; it cannot apply where such contrary intent is evident.[61]

Congress, in passing RA No. 10153, made it explicitly clear that it had the intention of suppressing the holdover rule that prevailed under RA No. 9054 by completely removing this provision. The deletion is a policy decision that is wholly within the discretion of Congress to make in the exercise of its plenary legislative powers; this Court cannot pass upon questions of wisdom, justice or expediency of legislation,[62]except where an attendant unconstitutionality or grave abuse of discretion results.

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Kida of Senate of the PhilippinesC.  The COMELEC has no authority to order special elections

Another option proposed by the petitioner in G.R. No. 197282 is for this Court to compel COMELEC to immediately conduct special elections pursuant to Section 5 and 6 of Batas Pambansa Bilang (BP) 881.

The power to fix the date of elections is essentially legislative in nature, as evident from, and exemplified by, the following provisions of the Constitution:

Section 8, Article VI, applicable to the legislature, provides:

Section 8. Unless otherwise provided by law, the regular election of the Senators and the Members of the House of Representatives shall be held on the second Monday of May. [Emphasis ours]

Section 4(3), Article VII, with the same tenor but applicable solely to the President and Vice-President, states:

xxxx

Section 4. xxx Unless otherwise provided by law, the regular election for President and Vice-President shall be held on the second Monday of May. [Emphasis ours]

while Section 3, Article X, on local government, provides:

Section 3. The Congress shall enact a local government codewhich shall provide for xxx the qualifications, election, appointment and removal, term, salaries, powers and functions and duties of local officials[.] [Emphases ours]

These provisions support the conclusion that no elections may be held on any other date for the positions of President, Vice President, Members of Congress and local officials, except when so provided by another Act of Congress, or upon orders of a body or officer to whom Congress may have delegated either the power or the authority to ascertain or fill in the details in the execution of that power.[63]

Notably, Congress has acted on the ARMM elections by postponing the scheduled August 2011 elections and setting another date - May 13, 2011 - for regional elections synchronized with the presidential, congressional and other local elections.  By so doing, Congress itself has made a policy decision in the exercise of its legislative wisdom that it shall not call special elections as an adjustment measure in synchronizing the ARMM elections with the other elections.

After Congress has so acted, neither the Executive nor the Judiciary can act to the contrary by ordering special elections instead at the call of the COMELEC. This Court, particularly, cannot make this call without thereby supplanting the legislative decision and effectively legislating.  To be sure, the Court is not without the power to declare an act of Congress null and void for being unconstitutional or for having been exercised in grave abuse of discretion.[64]  But our power rests on very narrow ground and is merely to annul a contravening act of Congress; it is not to supplant the decision of Congress nor to mandate what Congress itself should have done in the exercise of its legislative powers.  Thus, contrary to what the petition in G.R. No. 197282 urges, we cannot compel COMELEC to call for special elections.

Furthermore, we have to bear in mind that the constitutional power of the COMELEC, in contrast with the power of Congress to call for, and to set the date of, elections, is limited to enforcing and administering all laws and regulations relative to the conduct of an election.[65] Statutorily, COMELEC has no power to call for the holding of special elections unless pursuant to a specific statutory grant.  True, Congress did grant, viaSections 5 and 6 of BP 881, COMELEC with the power to postpone elections to another date. However, this power is limited to, and can only be exercised within, the specific terms and circumstances provided for in the law. We quote:

Section 5. Postponement of election. - When for any serious cause such as violence, terrorism, loss or destruction of election paraphernalia or records, force majeure, and other analogous causes of such a nature that the holding of a free, orderly and honest election should become impossible in any political subdivision, the Commission, motu proprio or upon a verified petition by any interested party, and after due notice and hearing, whereby all interested parties are afforded equal opportunity to be heard, shall postpone the election therein to a date which should be reasonably close to the date of the election not held, suspended or which resulted in a failure to elect but not later than thirty days after the cessation of the cause for such postponement or suspension of the election or failure to elect.

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Kida of Senate of the PhilippinesSection 6. Failure of election. - If, on account of force majeure,violence, terrorism, fraud, or other analogous causes the election in any polling place has not been held on the date fixed, or had been suspended before the hour fixed by law for the closing of the voting, or after the voting and during the preparation and the transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect, and in any of such cases the failure or suspension of election would affect the result of the election, the Commission shall, on the basis of a verified petition by any interested party and after due notice and hearing, call for the holding or continuation of the election not held, suspended or which resulted in a failure to elect on a date reasonably close to the date of the election not held, suspended or which resulted in a failure to elect but not later than thirty days after the cessation of the cause of such postponement or suspension of the election or failure to elect. [Emphasis ours]

A close reading of Section 5 of BP 881 reveals that it is meant to address instances where elections have already been scheduled to take place but have to bepostponed because of (a) violence, (b) terrorism, (c) loss or destruction of election paraphernalia or records, (d) force majeure, and (e) other analogous causes of such a nature that the holding of a free, orderly and honest election should become impossible in any political subdivision.  Under the principle of ejusdem generis, the term "analogous causes" will be restricted to those unforeseen or unexpectedevents that prevent the holding of the scheduled elections. These "analogous causes" are further defined by the phrase "of such nature that the holding of a free, orderly and honest election should become impossible."

Similarly, Section 6 of BP 881 applies only to those situations where elections have already been scheduled but do not take place because of (a) force majeure, (b)violence, (c) terrorism, (d) fraud, or (e) other analogous causes the election in any polling place has not been held on the date fixed, or had been suspended before the hour fixed by law for the closing of the voting, or after the voting and during the preparation and the transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect. As in Section 5 of BP 881, Section 6 addresses instances where the elections do not occur or had to be suspended because of unexpected and unforeseen circumstances.

In the present case, the postponement of the ARMM elections is by law - i.e., by congressional policy - and is pursuant to the constitutional mandate of synchronization of national and local elections. By no stretch of the imagination can these reasons be given the same character as the circumstances contemplated by Section 5 or Section 6 of BP 881, which all pertain to extralegal causes that obstruct the holding of elections.  Courts, to be sure, cannot enlarge the scope of a statute under the guise of interpretation, nor include situations not provided nor intended by the lawmakers.[66] Clearly, neither Section 5 nor Section 6 of BP 881 can apply to the present case and this Court has absolutely no legal basis to compel the COMELEC to hold special elections.

D.  The Court has no power to shortenthe terms of elective officials

Even assuming that it is legally permissible for the Court to compel the COMELEC to hold special elections, no legal basis likewise exists to rule that the newly elected ARMM officials shall hold office only until the ARMM officials elected in the synchronized elections shall have assumed office.

In the first place, the Court is not empowered to adjust the terms of elective officials. Based on the Constitution, the power to fix the term of office of elective officials, which can be exercised only in the case of barangay officials,[67] is specifically given to Congress. Even Congress itself may be denied such power, as shown when the Constitution shortened the terms of twelve Senators obtaining the least votes,[68] and extended the terms of the President and the Vice-President[69] in order to synchronize elections; Congress was not granted this same power.  The settled rule is that terms fixed by the Constitution cannot be changed by mere statute.[70]  More particularly, not even Congress and certainly not this Court, has the authority to fix the terms of elective local officials in the ARMM for less, or more, than the constitutionally mandated three years[71] as this tinkering would directly contravene Section 8, Article X of the Constitution as we ruled in Osmena.

Thus, in the same way that the term of elective ARMM officials cannot be extended through a holdover, the term cannot be shortened by putting an expiration date earlier than the three (3) years that the Constitution itself commands.  This is what will happen - a term of less than two years - if a call for special elections shall prevail. In sum, while synchronization is achieved, the result is at the cost of a violation of an express provision of the Constitution.  

Neither we nor Congress can opt to shorten the tenure of those officials to be elected in the ARMM elections instead of acting on their term (where the "term" means the time during which the officer may claim to hold office as of right and fixes the interval after which the several incumbents shall succeed one another, while the "tenure" representsthe term during which the incumbent actually holds the office).[72] As with the fixing of the elective term, neither Congress nor the Court has any legal basis

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Kida of Senate of the Philippinesto shorten the tenure of elective ARMM officials. They would commit an unconstitutional act and gravely abuse their discretion if they do so.

E.  The President's Power to Appoint OICs

The above considerations leave only Congress' chosen interim measure - RA No. 10153 and the appointment by the President of OICs to govern the ARMM during the pre-synchronization period pursuant to Sections 3, 4 and 5 of this law - as the only measure that Congress can make.  This choice itself, however, should be examined for any attendant constitutional infirmity.

At the outset, the power to appoint is essentially executive in nature, and the limitations on or qualifications to the exercise of this power should be strictly construed; these limitations or qualifications must be clearly stated in order to be recognized.[73] The appointing power is embodied in Section 16, Article VII of the Constitution, which states:

Section 16. The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution. He shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or boards. [emphasis ours]

This provision classifies into four groups the officers that the President can appoint. These are:

First, the heads of the executive departments; ambassadors; other public ministers and consuls; officers of the Armed Forces of the Philippines, from the rank of colonel or naval captain; and other officers whose appointments are vested in the President in this Constitution;

Second, all other officers of the government whose appointments are not otherwise provided for by law;

Third, those whom the President may be authorized by law to appoint; and

Fourth, officers lower in rank whose appointments the Congress may by law vest in the President alone.[74]

Since the President's authority to appoint OICs emanates from RA No. 10153, it falls under the third group of officials that the President can appoint pursuant to Section 16, Article VII of the Constitution. Thus, the assailed law facially rests on clear constitutional basis.

If at all, the gravest challenge posed by the petitions to the authority to appoint OICs under Section 3 of RA No. 10153 is the assertion that the Constitution requires that the ARMM executive and legislative officials to be "elective and representative of the constituent political units." This requirement indeed is an express limitation whose non-observance in the assailed law leaves the appointment of OICs constitutionally defective.

After fully examining the issue, we hold that this alleged  constitutional problem is more apparent than real and becomes very real only if RA No. 10153 were to bemistakenly read as a law that changes the elective and representative character of ARMM positions.  RA No. 10153, however, does not in any way amend what the organic law of the ARMM  (RA No. 9054) sets outs in terms of structure of governance.  What RA No. 10153 in fact only does is to "appoint officers-in-charge for the Office of the Regional Governor, Regional Vice Governor and Members of the Regional Legislative Assembly who shall perform the functions pertaining to the said offices until the officials duly elected in the May 2013 elections shall have qualified and assumed office." This power is far different from appointing elective ARMM officials for the abbreviated term ending on the assumption to office of the officials elected in the May 2013 elections.

As we have already established in our discussion of the supermajority and plebiscite requirements, the legal reality is that RA No. 10153 did not amend RA No. 9054. RA No. 10153, in fact, provides only for synchronization of elections and for the interim measures that must in the meanwhile prevail.  And this is how RA No. 10153 should be read - in the manner it was written and based on its unambiguous facial terms.[75] Aside from its order for synchronization, it is purely and simply an interim measure responding to the adjustments that the synchronization requires.

Thus, the appropriate question to ask is whether the interim measure is an unreasonable move for Congress to adopt, given the

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Kida of Senate of the Philippineslegal situation that the synchronization unavoidably brought with it.  In more concrete terms and based on the above considerations, given the plain unconstitutionality of providing for a holdover and the unavailability of constitutional possibilities for lengthening or shortening the term of the elected ARMM officials, is the choice of the President's power to appoint - for a fixed and specific period as an interim measure, and as allowed under Section 16, Article VII of the Constitution - an unconstitutional or unreasonable choice for Congress to make? 

Admittedly, the grant of the power to the President under other situations or where the power of appointment would extend beyond the adjustment period for synchronization would be to foster a government that is not "democratic and republican." For then, the people's right to choose the leaders to govern them may be said to be systemically withdrawn to the point of fostering an undemocratic regime.  This is the grant that would frontally breach the "elective and representative" governance requirement of Section 18, Article X of the Constitution.

But this conclusion would not be true under the very limited circumstances contemplated in RA No. 10153 where the period is fixed and, more importantly, the terms of governance - both under Section 18, Article X of the Constitution and RA No. 9054 - will not systemically be touched nor affected at all.  To repeat what has previously been said, RA No. 9054 will govern unchanged and continuously, with full effect in accordance with the Constitution, save only for the interim and temporary measures that synchronization of elections requires.

Viewed from another perspective, synchronization will temporarily disrupt the election process in a local community, the ARMM, as well as the community's choice of leaders, but this will take place under a situation of necessity and as an interim measure in the manner that interim measures have been adopted and used in the creation of local government units[76] and the adjustments of sub-provinces to the status of provinces.[77] These measures, too, are used in light of the wider national demand for the synchronization of elections (considered vis-à-vis the regional interests involved).  The adoption of these measures, in other words, is no different from the exercise by Congress of the inherent police power of the State, where one of the essential tests is the reasonableness of the interim measure taken in light of the given circumstances.

Furthermore, the "representative" character of the chosen leaders need not necessarily be affected by the appointment of OICs as this requirement is really a function of the appointment process; only the "elective" aspect shall be supplanted by the appointment of OICs.  In this regard, RA No. 10153 significantly seeks to address concerns arising from the appointments by providing, under Sections 3, 4 and 5 of the assailed law, concrete terms in the Appointment of OIC, the Manner and Procedure of Appointing OICs, and their Qualifications.

Based on these considerations, we hold that RA No. 10153 - viewed in its proper context - is a law that is not violative of the Constitution (specifically, its autonomy provisions), and one that is reasonable as well under the circumstances.

VI. Other Constitutional Concerns

Outside of the above concerns, it has been argued during the oral arguments that upholding the constitutionality of RA No. 10153 would set a dangerous precedent of giving the President the power to cancel elections anywhere in the country, thus allowing him to replace elective officials with OICs.

This claim apparently misunderstands that an across-the-board cancellation of elections is a matter for Congress, not for the President, to address. It is a power that falls within the powers of Congress in the exercise of its legislative powers.  Even Congress, as discussed above, is limited in what it can legislatively undertake with respect to elections.

If RA No. 10153 cancelled the regular August 2011 elections, it was for a very specific and limited purpose - the synchronization of elections.  It was a temporary means to a lasting end - the synchronization of elections. Thus, RA No. 10153 and the support that the Court gives this legislation are likewise clear and specific, and cannot be transferred or applied to any other cause for the cancellation of elections. Any other localized cancellation of elections and call for special elections can occur only in accordance with the power already delegated by Congress to the COMELEC, as above discussed.

Given that the incumbent ARMM elective officials cannot continue to act in a holdover capacity upon the expiration of their terms, and this Court cannot compel the COMELEC to conduct special elections, the Court now has to deal with the dilemma of a vacuum in governance in the ARMM.

To emphasize the dire situation a vacuum brings, it should not be forgotten that a period of 21 months - or close to 2 years - intervenes from the time that the incumbent ARMM elective officials' terms expired and the time the new ARMM elective officials begin their terms in 2013. As the lessons of our Mindanao history - past and current - teach us, many developments, some of

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Kida of Senate of the Philippinesthem critical and adverse, can transpire in the country's Muslim areas in this span of time in the way they transpired in the past.[78]  Thus, it would be reckless to assume that the presence of an acting ARMM Governor, an acting Vice-Governor and a fully functioning Regional Legislative Assembly can be done away with even temporarily.  To our mind, the appointment of OICs under the present circumstances is an absolute necessity.

Significantly, the grant to the President of the power to appoint OICs to undertake the functions of the elective members of the Regional Legislative Assembly is neither novel nor innovative. We hark back to our earlier pronouncement in Menzon v. Petilla, etc., et al.:[79]

It may be noted that under Commonwealth Act No. 588 and the Revised Administrative Code of 1987, the President is empowered to make temporary appointments in certain public offices, in case of any vacancy that may occur. Albeit both laws deal only with the filling of vacancies in appointive positions. However, in the absence of any contrary provision in the Local Government Code and in the best interest of public service, we see no cogent reason why the procedure thus outlined by the two laws may not be similarly applied in the present case. The respondents contend that the provincial board is the correct appointing power. This argument has no merit. As between the President who has supervision over local governments as provided by law and the members of the board who are junior to the vice-governor, we have no problem ruling in favor of the President, until the law provides otherwise.

A vacancy creates an anomalous situation and finds no approbation under the law for it deprives the constituents of their right of representation and governance in their own local government.

In a republican form of government, the majority rules through their chosen few, and if one of them is incapacitated or absent, etc., the management of governmental affairs is, to that extent, may be hampered. Necessarily, there will be a consequent delay in the delivery of basic services to the people of Leyte if the Governor or the Vice-Governor is missing.[80]

(Emphasis ours.)

As in Menzon, leaving the positions of ARMM Governor, Vice Governor, and members of the Regional Legislative Assembly vacant for 21 months, or almost 2 years, would clearly cause disruptions and delays in the delivery of basic services to the people, in the proper management of the affairs of the regional government, and in responding to critical developments that may arise. When viewed in this context, allowing the President in the exercise of his constitutionally-recognized appointment power to appoint OICs is, in our judgment, a reasonable measure to take.

B.  Autonomy in the ARMM

It is further argued that while synchronization may be constitutionally mandated, it cannot be used to defeat or to impede the autonomy that the Constitution granted to the ARMM. Phrased in this manner, one would presume that there exists a conflict between two recognized Constitutional mandates - synchronization and regional autonomy - such that it is necessary to choose one over the other.

We find this to be an erroneous approach that violates a basic principle in constitutional construction - ut magis valeat quam pereat: that the Constitution is to be interpreted as a whole,[81] and one mandate should not be given importance over the other except where the primacy of one over the other is clear.[82]  We refer to the Court's declaration in Ang-Angco v. Castillo, et al.,[83] thus:

A provision of the constitution should not be construed in isolation from the rest. Rather, the constitution must be interpreted as a whole, and apparently, conflicting provisions should be reconciled and harmonized in a manner that may give to all of them full force and effect. [Emphasis supplied.]

Synchronization is an interest that is as constitutionally entrenched as regional autonomy. They are interests that this Court should reconcile and give effect to, in the way that Congress did in RA No. 10153 which provides the measure to transit to synchronized regional elections with the least disturbance on the interests that must be respected.  Particularly, regional autonomy will be respected instead of being sidelined, as the law does not in any way alter, change or modify its governing features, except in a very temporary manner and only as necessitated by the attendant circumstances.

Elsewhere, it has also been argued that the ARMM elections should not be synchronized with the national and local elections in order to maintain the autonomy of the ARMM and insulate its own electoral processes from the rough and tumble of nationwide and local elections.  This argument leaves us far from convinced of its merits.

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Kida of Senate of the PhilippinesAs heretofore mentioned and discussed, while autonomous regions are granted political autonomy, the framers of the Constitution never equated autonomy with independence. The ARMM as a regional entity thus continues to operate within the larger framework of the State and is still subject to the national policies set by the national government, save only for those specific areas reserved by the Constitution for regional autonomous determination. As reflected during the constitutional deliberations of the provisions on autonomous regions:

Mr. Bennagen. xxx We do not see here a complete separation from the central government, but rather an efficient working relationship between the autonomous region and the central government. We see this as an effective partnership, not a separation.

Mr. Romulo. Therefore, complete autonomy is not really thought of as complete independence.

Mr. Ople. We define it as a measure of self-government within the larger political framework of the nation.[84] [Emphasis supplied.]

This exchange of course is fully and expressly reflected in the above-quoted Section 17, Article X of the Constitution, and by the express reservation under Section 1 of the same Article that autonomy shall be "within the framework of this Constitution and the national sovereignty as well as the territorial integrity of the Republic of the Philippines."

Interestingly, the framers of the Constitution initially proposed to remove Section 17 of Article X, believing it to be unnecessary in light of the enumeration of powers granted to autonomous regions in Section 20, Article X of the Constitution. Upon further reflection, the framers decided to reinstate the provision in order to "make it clear, once and for all, that these are the limits of the powers of the autonomous government. Those not enumerated are actually to be exercised by the national government[.]"[85] Of note is the Court's pronouncement in Pimentel, Jr. v. Hon. Aguirre[86] which we quote:

Under the Philippine concept of local autonomy, the national government has not completely relinquished all its powers over local governments, including autonomous regions. Only administrative powers over local affairs are delegated to political subdivisions. The purpose of the delegation is to make governance more directly responsive and effective at the local levels. In turn, economic, political and social development at the smaller political units are expected to propel social and economic growth and development. But to enable the country to develop as a whole, the programs and policies effected locally must be integrated and coordinated towards a common national goal. Thus, policy-setting for the entire country still lies in the President and Congress. [Emphasis ours.]

In other words, the autonomy granted to the ARMM cannot be invoked to defeat national policies and concerns. Since the synchronization of elections is not just a regional concern but a national one, the ARMM is subject to it; the regional autonomy granted to the ARMM cannot be used to exempt the region from having to act in accordance with a national policy mandated by no less than the Constitution.

Conclusion

Congress acted within its powers and pursuant to a constitutional mandate - the synchronization of national and local elections - when it enacted RA No. 10153.  This Court cannot question the manner by which Congress undertook this task; the Judiciary does not and cannot pass upon questions of wisdom, justice or expediency of legislation.[87] As judges, we can only interpret and apply the law and, despite our doubts about its wisdom, cannot repeal or amend it.[88]

Nor can the Court presume to dictate the means by which Congress should address what is essentially a legislative problem. It is not within the Court's power to enlarge or abridge laws; otherwise, the Court will be guilty of usurping the exclusive prerogative of Congress.[89] The petitioners, in asking this Court to compel COMELEC to hold special elections despite its lack of authority to do so, are essentially asking us to venture into the realm of judicial legislation, which is abhorrent to one of the most basic principles of a republican and democratic government - the separation of powers.

The petitioners allege, too, that we should act because Congress acted with grave abuse of discretion in enacting RA No. 10153. Grave abuse of discretion is such capricious and whimsical exercise of judgment that is patent and gross as to amount to an evasion of a positive duty or to a virtual refusal to perform a duty enjoined by law or to act at all in contemplation of the law as where the power is exercised in an arbitrary and despotic manner by reason of passion and hostility.[90]

We find that Congress, in passing RA No. 10153, acted strictly within its constitutional mandate. Given an array of choices, it acted within due constitutional bounds and with marked reasonableness in light of the necessary adjustments that

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Kida of Senate of the Philippinessynchronization demands. Congress, therefore, cannot be accused of any evasion of a positive duty or of a refusal to perform its duty.  We thus find no reason to accord merit to the petitioners' claims of grave abuse of discretion.

On the general claim that RA No. 10153 is unconstitutional, we can only reiterate the established rule that every statute is presumed valid.[91] Congress, thus, has in its favor the presumption of constitutionality of its acts, and the party challenging the validity of a statute has the onerous task of rebutting this presumption.[92] Any reasonable doubt about the validity of the law should be resolved in favor of its constitutionality.[93] As this Court declared in Garcia v. Executive Secretary:[94]

The policy of the courts is to avoid ruling on constitutional questions and to presume that the acts of the political departments are valid in the absence of a clear and unmistakable showing to the contrary. To doubt is to sustain. This presumption is based on the doctrine of separation of powers which enjoins upon each department a becoming respect for the acts of the other departments. The theory is that as the joint act of Congress and the President of the Philippines, a law has been carefully studied and determined to be in accordance with the fundamental law before it was finally enacted.[95] [Emphasis ours.]

Given the failure of the petitioners to rebut the presumption of constitutionality in favor of RA No. 10153, we must support and confirm its validity.

WHEREFORE, premises considered, we DISMISS the consolidated petitions assailing the validity of RA No. 10153 for lack of merit, and UPHOLD the constitutionality of this law.  We likewise LIFT the temporary restraining order we issued in our Resolution of September 13, 2011.  No costs.

SO ORDERED.

Peralta, Bersamin, Del Castillo, Villarama, Jr., Mendoza, Reyes, and Perlas-Bernabe, JJ., concur.Corona, C.J., join the dissent of J. Velasco with respect to the appointment of the OIC Governor and vote to hold the law as unconstitutional.Carpio, J., see dissenting opinion.Velasco, Jr., J., join the dissent of J. Carpio but a disagree on the power of the Pres.to appoint OIC- Governor of ARMM. (pls. see Dissenting Opinion.)Leonardo-De Castro, and Abad, JJ., join the dissent of J. Velasco.Perez, and Sereno, JJ., join the dissent of J. Carpio.

[1] Entitled "An act fixing the date of the plebiscite for the approval of the amendments to Republic Act No. 6734 and setting the date of the regular elections for elective officials of the Autonomous Region in Muslim Mindanao on the last Monday of November 2001, amending for the purpose Republic Act No. 9054, entitled "An Act to Strengthen and Expand the Organic Act for the Autonomous Region in Muslim Mindanao, amending for the purpose Republic Act No. 6734, entitled `An Act Providing for the Autonomous Region in Muslim Mindanao,' as amended," and for other purposes.

[2] Entitled "An Act amending fixing the Date or Regular elections for Elective Officials of the Autonomous Region in Muslim Mindanao pursuant to Republic Act No. 9054, entitled "An Act to Strengthen and Expand the Organic Act for the Autonomous Region in Muslim Mindanao, amending for the purpose Republic Act No. 6734, entitled `An Act Providing for an Organic Act for the Autonomous Region in Muslim Mindanao, as amended"

[3] Filed by petitioners Datu Michael Abas Kida, in his personal capacity, and in representation of Maguindanao Federation of Autonomous Irrigators Association, Inc., Hadji Muhmina Usman, John Anthony L. Lim, Jamilon T. Odin, Asrin Timbol Jaiyari, Mujib M. Kalang, Alih Al-Saidi J. Sapi-e, Kessar Damsie Abdil, and Bassam Aluh Saupi.

[4] Petition for Prohibition with Very Urgent Prayer for the Issuance of a Writ of Preliminary Injunction and/or Temporary Restraining Order dated April 11, 2011 was filed against Sixto Brillantes, as Chairperson of COMELEC, to challenge the effectivity of RA No. 9333 for not having been submitted to a plebiscite. Since RA No. 9333 is inoperative, any other law seeking to amend it is also null and void.

[5] With Prayer for the Issuance of a Temporary Restraining Order and/or Writs of Preliminary Prohibitive and Mandatory Injunction dated June 30, 2011.

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Kida of Senate of the Philippines[6] With Extremely Urgent Application for the Issuance of a Status Quo Order and Writ of Preliminary Mandatory Injunction dated July 1, 2011.

[7] With Prayer for the issuance of a Temporary Restraining Order dated July 12, 2011.

[8] With Injunction and Preliminary Injunction with prayer for temporary restraining order dated July 11, 2011.

[9] With Prayer for Temporary Restraining Order and the Issuance of Writs of Preliminary Injunction, Both Prohibitory and Mandatory dated July 1, 2011.

[10] Section 1. The first elections of Members of the Congress under this Constitution shall be held on the second Monday of May, 1987.

The first local elections shall be held on a date to be determined by the President, which may be simultaneous with the election of the Members of the Congress. It shall include the election of all Members of the city or municipal councils in the Metropolitan Manila area.

Section 2. The Senators, Members of the House of Representatives, and thelocal officials first elected under this Constitution shall serve until noon of June 30, 1992. 

Of the Senators elected in the election in 1992, the first twelve obtaining the highest number of votes shall serve for six years and the remaining twelve for three years.

xxx

Section 5. The six-year term of the incumbent President and Vice President elected in the February 7, 1986 election is, for purposes of synchronization of elections,hereby extended to noon of June 30, 1992.

The first regular elections for President and Vice-President under this Constitution shall be held on the second Monday of May, 1992. [emphasis ours]

[11]  To illustrate, while Section 8, Article X of the Constitution fixes the term of office of elective local officials at three years, under the above-quoted provisions, the terms of the incumbent local officials who were elected in January 1988, which should have expired on February 2, 1991, were fixed to expire at noon of June 30, 1992. In the same vein, the terms of the incumbent President and Vice President who were elected in February 1986 were extended to noon of June 30, 1992. On the other hand, in order to synchronize the elections of the Senators, who have six-year terms, the twelve Senators who obtained the lowest votes during the 1992 elections were made to serve only half the time of their terms.

[12] Joaquin Bernas, S.J., The 1987 Constitution of the Republic of the Philippines: A Commentary (1996 ed.),  p. 1199, citing Records of the Constitutional Commission, Vol. V, p. 429-4.

[13] MR. MAAMBONG. For purposes of identification, I will now read a section which we will temporarily indicate as Section 14. It reads: "THE SENATORS, MEMBERS OF THE HOUSE OF REPRESENTATIVES AND THE LOCAL OFFICIALS ELECTED IN THE FIRST ELECTION SHALL SERVE FOR FIVE YEARS, TO EXPIRE AT NOON OF JUNE 1992."

This was presented by Commissioner Davide, so may we ask that Commissioner Davide be recognized.

THE PRESIDING OFFICER (Mr. Rodrigo). Commissioner Davide is recognized.

MR. DAVIDE. Before going to the proposed amendment, I would only state that in view of the action taken by the Commission on Section 2 earlier, I am formulating a new proposal. It will read as follows: "THE SENATORS, MEMBERS OF THE HOUSE OF REPRESENTATIVES AND THE LOCAL OFFICIALS FIRST ELECTED UNDER THIS CONSTITUTION SHALL SERVE UNTIL NOON OF JUNE 30, 1992."

I proposed this because of the proposed section of the Article on Transitory Provisions giving a term to the incumbent President and Vice-President until 1992. Necessarily then, since the term provided by the Commission for Members of the Lower House and for local officials is three years, if there will be an election in 1987, the next election for said officers will be in 1990, and it would be very close to 1992. We could never attain, subsequently, any synchronization of election which is once every three years.

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So under my proposal we will be able to begin actual synchronization in 1992, and consequently, we should not have a local election or an election for Members of the Lower House in 1990 for them to be able to complete their term of three years each. And if we also stagger the Senate, upon the first election it will result in an election in 1993 for the Senate alone, and there will be an election for 12 Senators in 1990. But for the remaining 12 who will be elected in 1987, if their term is for six years, their election will be in 1993. So, consequently we will have elections in 1990, in 1992 and in 1993. The later election will be limited to only 12 Senators and of course to local officials and the Members of the Lower House. But, definitely, thereafter we can never have an election once every three years, therefore defeating the very purpose of the Commission when we adopted the term of six years for the President and another six years for the Senators with the possibility of staggering with 12 to serve for six years and 12 for three years insofar as the first Senators are concerned. And so my proposal is the only way to effect the first synchronized election which would mean, necessarily, a bonus of two years to the Members of the Lower House and a bonus of two years to the local elective officials.

THE PRESIDING OFFICER (Mr. Rodrigo). What does the committee say?

MR. DE CASTRO. Mr. Presiding Officer.

THE PRESIDING OFFICER (Mr. Rodrigo). Commissioner de Castro is recognized.

MR. DE CASTRO. Thank you.

During the discussion on the legislative and the synchronization of elections, I was the one who proposed that in order to synchronize the elections every three years, which the body approved -- the first national and local officials to be elected in 1987 shall continue in office for five years, the same thing the Honorable Davide is now proposing. That means they will all serve until 1992, assuming that the term of the President will be for six years and continue beginning in 1986. So from 1992, we will again have national, local and presidential elections. This time, in 1992, the President shall have a term until 1998 and the first twelve Senators will serve until 1998, while the next 12 shall serve until 1995, and then the local officials elected in 1992 will serve until 1995. From then on, we shall have an election every three years.

So, I will say that the proposition of Commissioner Davide is in order, if we have to synchronize our elections every three years which was already approved by the body.

Thank you, Mr. Presiding Officer.

xxx xxx xxx

MR. GUINGONA. What will be synchronized, therefore, is the election of the incumbent President and Vice-President in 1992.

MR. DAVIDE. Yes.

MR. GUINGONA. Not the reverse. Will the committee not synchronize the election of the Senators and local officials with the election of the President?

MR. DAVIDE. It works both ways, Mr. Presiding Officer. The attempt here is on the assumption that the provision of the Transitory Provisions on the term of the incumbent President and Vice-President would really end in 1992.

MR. GUINGONA. Yes.

MR. DAVIDE. In other words, there will be a single election in 1992 for all, from the President up to the municipal officials. [emphasis ours] (V Record of the Constitutional Commission, pp. 429-431; October 3, 1986)

[14] G.R. Nos. 100318, 100308, 100417 and 100420, July 30, 1991, 199 SCRA 750, 758.

[15] J.M. Tuason & Co., Inc. v. Land Tenure Administration, G.R. No. 21064, February 18, 1970, 31 SCRA 413; Ordillo v. Commission on Elections, 192 SCRA 100 (1990).

[16] 271 SCRA 633, 668 (1997); Occena v. Commission on Elections, G.R. No. 52265, January 28, 1980, 95 SCRA 755.

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Kida of Senate of the Philippines[17] Webster's Third New International Dictionary Unabridged, p.1327 (1993).

[18] Section 26(2) No bill passed by either House shall become a law unless it has passed three readings on separate days, and printed copies thereof in its final form have been distributed to its Members three days before its passage, except when the President certifies to the necessity of its immediate enactment to meet a public calamity or emergency. Upon the last reading of a bill, no amendment thereto shall be allowed, and the vote thereon shall be taken immediately thereafter, and the yeasand nays entered in the Journal.

[19] G. R. No. 115455, August 25, 1994, 235 SCRA 630.

[20] A copy of the letter that the President wrote to Honorable Feliciano Belmonte, Jr. as Speaker of the House of Representatives dated March 4, 2011 is reproduced below:

OFFICE OF THE PRESIDENTof the Philippines

Malacañang

14 March 2011HON. FELICIANO R. BELMONTE, JR.SpeakerHouse of RepresentativesQuezon City

Dear Speaker Belmonte:

Pursuant to the provisions of Article VI, Section 26 (2) of the 1987 Constitution, I hereby certify to the necessity of the immediate enactment of House Bill No. 4146, entitled:

"AN ACT PROVIDING FOR THE SYNCHRONIZATION OF THE ELECTIONS AND THE TERM OF OFFICE OF THE ELECTIVE OFFICIALS OF THE AUTONOMOUS REGION IN MUSLIM MINDANAO (ARMM) WITH THOSE OF THE NATIONAL AND OTHER LOCAL OFFICIALS, AMENDING FOR THE PURPOSE REPUBLIC ACT NO. 9333, ENTITLED `AN ACT FIXING THE DATE FOR REGULAR ELECTIONS FOR ELECTIVE OFFICIALS OF THE AUTONOMOUS REGION IN MUSLIM MINDANAO', AND FOR OTHER PURPOSES"

to address the urgent need to protect and strengthen ARMM's autonomy by synchronizing its elections with the regular elections of national and other local officials, to ensure that the on-going peace talks in the region will not be hindered, and to provide a mechanism to institutionalize electoral reforms in the interim, all for the development, peace and security of the region.

Best wishes.Very truly yours,(Sgd.) BENIGNO SIMEON C. AQUINO III

cc: HON. JUAN PONCE ENRILESenate PresidentPhilippine SenatePasay CityTaken from: http://www.congress.gov.ph/download/congrec/15th/1st/15C_1RS-64b-031611.pdf. Last accessed on September 26, 2011.

[21] See Gutierrez v. House of Representatives, G.R. No. 193459, February 15, 2011.

[22] Tolentino v. Secretary of Finance, G.R. No. 115455, October 30, 1995.

[23] Tolentino, id., citing 1 J. G. Sutherland, Statutes and Statutory Construction§10.04, p. 282 (1972).

[24] Section 7, Article XIX of RA No. 6734 states: "The first regular elections of the Regional Governor, Vice-Governor and Members of the Regional Assembly under this Organic Act shall be held not earlier than sixty (60) days or later than ninety (90) days after the ratification of this Act. The Commission on Elections shall promulgate such rules and regulations as may be necessary for the conduct of said election."

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[25] Entitled "An Act Providing for the Date of Regular Elections for Regional Governor, Regional Vice-Governor and Members of the Regional Legislative Assembly for the Autonomous Region in Muslim Mindanao and for other purposes," which fixed the date of the ARMM elections on the second Monday after the Muslim month of Ramadhan.

[26] Entitled "An Act Changing the Date of Elections for the Elective Officials of the Autonomous Region for Muslim Mindanao, Amending for the Purpose Section One of Republic Act Numbered Seventy-Six Hundred and Forty-Seven Entitled `An Act Providing for the Date of the Regular Elections for Regional Governor, Regional Vice-Governor and Members of the Regional Legislative Assembly for the Autonomous Region in Muslim Mindanao and for other purposes", which changed the date of the ARMM elections to the second Monday of March, 1993 and every three (3) years thereafter.

[27] Entitled "An Act Providing for the Date of the Regular Elections of Regional Governor, Regional Vice-Governor and Members of the Regional Legislative Assembly of the Autonomous Region in Muslim Mindanao (ARMM) Further Amending for the Purpose Republic Act No. 7647 entitled `An Act Providing for the Date of Regular Elections for Regional Governor, Regional Vice-Governor and Members of the Regional Legislative Assembly for the Autonomous Region in Muslim Mindanao and for other purposes,' As Amended, and for other purposes", which moved the regional elections to the second Monday of September and every three (3) years thereafter. 

[28] Entitled "An Act Resetting the Regular Elections for the Elective Officials of the Autonomous Region in Muslim Mindanao Provided for Under Republic Act No. 8746 and for other purposes", which reset the regional elections, scheduled on September 13, 1999, to the second Monday of September 2000.

[29] Entitled "An Act Resetting the Regular Elections for Elective Officials of the Autonomous Region in Muslim Mindanao to the Second Monday of September 2001, Amending for the Purpose Republic Act No. 8953", which reset the May 2001 elections in ARMM to September 2001.

[30] Entitled "An Act Fixing the Date of the Plebiscite for the Approval of the Amendments to Republic Act No. 6734 and setting the date of the regular elections for elective officials of the Autonomous Region in Muslim Mindanao on the Last Monday of November 2001, Amending for the Purpose Republic Act No. 9054, Entitled "An Act to Strengthen and Expand the Organic Act for the Autonomous Region in Muslim Mindanao, Amending for the Purpose Republic Act No. 6734, Entitled `An Act Providing for the Autonomous Region in Muslim Mindanao,' as amended," and For Other Purposes."

[31] Entitled "An Act Fixing the Date of Regular Elections for Elective Officials of the Autonomous Region in Muslim Mindanao Pursuant to Republic Act no. 9054, Entitled "An Act to Strengthen and Expand the Organic Act for the Autonomous Region in Muslim Mindanao, Amending for the Purpose Republic Act No. 6734, Entitled `An Act Providing for an Organic Act for the Autonomous Region in Muslim Mindanao', as Amended,"  which rescheduled the ARMM regional elections scheduled for the last Monday of November 2004 to "the second Monday of August 2005."

[32] Section 1. Consistent with the provisions of the Constitution, this Organic Act may be reamended or revised by the Congress of the Philippines upon a vote of two-thirds (2/3) of the Members of the House of Representatives and of the Senate voting separately.

[33] G.R. No.127383, August 18, 2005, 467 SCRA 280.

[34] Id. at 295-297, citing Duarte v. Dade, 32 Phil. 36 (1915); Lewis Southerland on Statutory Construction, Vol. 1, Section 244, pp. 456-457.

[35] This has been established by the following exchange during the Constitutional Commission debates:

FR. BERNAS. So, the questions I have raised so far with respect to this organic act are: What segment of the population will participate in the plebiscite? In what capacity would the legislature be acting when it passes this? Will it be a constituent assembly or merely a legislative body? What is the nature, therefore, of this organic act in relation to ordinary statutes and the Constitution? Finally, if we are going to amend this organic act, what process will be followed?

MR. NOLLEDO. May I answer that, please, in the light of what is now appearing in our report.

First, only the people who are residing in the units composing the region should be allowed to participate in the plebiscite. Second, the organic act has the character of a charter passed by Congress, not as a constituent assembly, but as an ordinary

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Kida of Senate of the Philippineslegislature and, therefore, the organic act will still be subject to amendments in the ordinary legislative process as now constituted, unless the Gentleman has another purpose.

FR. BERNAS. But with plebiscite again. [Emphasis ours.];

III Record of the Constitutional Commission, pp.182-183; August 11, 1986.

[36] 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.

[37] See discussions at pp. 14-15.

[38] Section 7. Terms of Office of Elective Regional Officials. - (1) Terms of Office. The terms of office of the Regional Governor, Regional Vice Governor and members of the Regional Assembly shall be for a period of three (3) years, which shall begin at noon on the 30th day of September next following the day of the election and shall end at noon of the same date three (3) years thereafter. The incumbent elective officials of the autonomous region shall continue in effect until their successors are elected and qualified. [emphasis ours]

[39] Fernando, The Philippine Constitution, pp. 175-176 (1974).

[40] Id. at 177; citing the concurring opinion of Justice Jose P. Laurel inSchneckenburger v. Moran, 63 Phil. 249, 266 (1936).

[41] Vera v. Avelino, 77 Phil. 192, 212 (1946).

[42]Ople v. Torres, et al., 354 Phil. 948 (1998); see concurring opinion of Justice Jose P. Laurel in Schneckenburger v. Moran, supra note 40, at 266.

[43]  State ex rel. Green v. Collison, 39 Del 245, cited in Defensor-Santiago,Constitutional Law, Vol. 1 (2000 ed.)

[44] Sec. 15.  There shall be created autonomous regions in Muslim Mindanao and in the Cordilleras consisting of provinces, cities and 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 the territorial integrity of the Republic of the Philippines.

[45] An empire within an empire.

[46] Bernas, Joaquin, Constitutional Structure and Powers of Government Notes and Cases Part I, 2005 ed., p. 1249.

[47] Such as the addition of sectoral representatives in the House of Representatives (paragraph 2, Section 5, of Article VI of the Constitution), and the validation of the power of the Presidential Commission on Good Government to issue sequestration, freeze orders, and the provisional takeover orders of ill-gotten business enterprises, embodied in Section 26 of the Transitory Provisions.

[48] RA No. 9495 which created the Province of Quezon del Sur Province was rejected by the voters of Quezon Province in the plebiscite of November 13, 2008.

[49]  RA No. 9355.

[50] Section 50, RA No. 9355 and Section 52 of RA No. 9495.

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[51] Section 462, RA No. 7160.

[52] Supra note 14.

[53] In Mutuc v. Commission on Elections [146 Phil. 798 (1970)] the Court held that,"The three departments of government in the discharge of the functions with which it is [sic] entrusted have no choice but to yield obedience to [the Constitution's] commands. Whatever limits it imposes must be observed." 146 Phil. 798 (1970).

[54] In J.M. Tuason & Co., Inc. v. Land Tenure Administration [No. L-21064, February 18, 1970, 31 SCRA 413, 423], the Court, speaking through former Chief Justice Enrique, stated: As the Constitution is not primarily a lawyer's document, it being essential for the rule of law to obtain that it should ever be present in the people's consciousness, its language as much as possible should be understood in the sense they have in common use. What it says according to the text of the provision to be construed compels acceptance and negates the power of the courts to alter it, based on the postulate that the framers and the people mean what they say. Thus these are cases where the need for construction is reduced to a minimum.

[55] Tawang Multi-Purpose Cooperative v. La Trinidad Water District, G.R. No. 166471, March 22, 2011.

[56] Pimentel v. Ermita, G.R. No. 164978, October 13, 2005, citing Bernas, Joaquin, The 1987 Constitution of the Republic of the Philippines: A Commentary  (1996 ed.) 768.

[57] 481 Phil. 661 (2004).

[58] G.R. No. 161984, February 21, 2007, 516 SCRA 403.

[59] G.R. No. 152295, July 9, 2011.

[60] Section 7. Terms of Office of Elective Regional Officials. - (1) Terms of Office. The terms of office of the Regional Governor, Regional Vice Governor, and members of the Regional Legislative Assembly shall be for a period of three (3) years, which shall begin at noon on the 30th day of September next following the day of the election and shall end at noon of the same date three (3) years thereafter. The incumbent elective officials of the autonomous region shall continue in effect until their successors are elected and qualified.

[61] Guekeko v. Santos, 76 Phil. 237 (1946).

[62]Lozano v. Nograles,  G.R. 187883, June 16, 2009, 589 SCRA 356.

[63] Ututalum v. Commission on Elections, No. L-25349, December 3, 1965, 15 SCRA 465.

[64] See CONSTITUTION, Article VIII, Section 1.

[65] See CONSTITUTION, Article IX (C), Section 2(1).

[66]  Balagtas Multi-Purpose Cooperative, Inc. v. Court of Appeals, G.R. No. 159268, October 27, 2006, 505 SCRA 654, 663, citing Lapid v. CA, G.R. No. 142261, June 29, 2000, 334 SCRA 738, quoting Morales v. Subido, G.R. No. 29658, November 29, 1968, 26 SCRA 150.

[67] CONSTITUTION, Article X, Section 8.

[68] Article XVIII, Section 2. The Senators, Members of the House of Representatives, and the local officials first elected under this Constitution shall serve until noon of June 30, 1992.

Of the Senators elected in the elections in 1992, the first twelve obtaining the highest number of votes shall serve for six years and the remaining twelve for three years.

[69] Article XVIII, Section 5. The six-year term of the incumbent President and Vice-President elected in the February 7, 1986 election is, for purposes of synchronization of elections, hereby extended to noon of June 30, 1992.

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Kida of Senate of the PhilippinesThe first regular elections for the President and Vice-President under this Constitution shall be held on the second Monday of May, 1992.

[70]  Cruz, Carlo. The Law of Public Officers, 2007 edition, p. 285, citing Mechem, Section 387.

[71] Ponencia, p. 21.

[72] See Topacio Nueno v. Angeles, 76 Phil. 12, 21-22 (1946); Alba, etc. v. Evangelista, etc., et al., 100 Phil. 683, 694 (1957); Aparri v. Court of Appeals, No. L-30057, January 31, 1984, 127 SCRA 231.

[73] Hon. Luis Mario M. General, Commissioner, National Police Commission v. Hon. Alejandro S. Urro, et al., G.R. No. 191560, March 29, 2011, citing Sarmiento III v. Mison, No. L-79974, December 17, 1987, 156 SCRA 549.

[74] Sarmiento III v. Mison, supra.

[75] If a statute is clear, plain and free from ambiguity, it must be given its literal meaning and applied without attempted interpretation. De Jesus v. Commission on Audit, 451 Phil. 812 (2003).

[76]  Supra notes 47 and 48.

[77]  Supra note 50.

[78] The after-effects of the Maguindanao massacre where the Ampatuans stand charged, the insurrection by the MILF and its various factions, and the on-going peace negotiations, among others, are immediately past and present events that the nation has to vigilant about.

[79] 274 Phil. 523 (1991).

[80] Id. at 532.

[81] Macalintal v. Presidential Electoral Tribunal, G.R. No. 191618, November 23, 2010, 635 SCRA 783.

[82] As noted under footnote 37.

[83] 118 Phil. 1468 (1963).

[84] Record of the Constitutional Commission, Vol. III, August 11, 1986, p. 179.

[85] Records of the Constitutional Commission, Vol. III, p. 560.

[86] 391 Phil. 84, 102 (2000).

[87] Angara v. Electoral Commission, 63 Phil. 139 (1936).

[88] Commissioner of Internal Revenue v. Santos, 343 Phil. 411, 427 (1997) citingPangilinan v. Maglaya, 225 SCRA 511 (1993).

[89] Manotok IV v. Heirs  of Homer L. Barque, G.R. Nos. 162335 and 162605, December 18, 2008, 574 SCRA 468, 581.

[90] Ligeralde v. Patalinghug, G.R. No. 168796, April 15, 2010, 618 SCRA 315.

[91] Heirs of Juancho Ardona, etc., et al. v. Hon. Reyes, etc., et al., 210 Phil. 187, 207 (1983); Peralta v. Commission on Elections, Nos. L-47771, L-47803, L-47816, L-47767, L-47791 and L-47827, March 11, 1978, 82 SCRA 30; Ermita-Malate Hotel & Motel Operations Association, Inc. v. City Mayor of Manila, No. L-24693, July 31, 1967, 20 SCRA 849.

[92] See Estrada v. Sandiganbayan, 421 Phil. 290 (2001); Heirs of Juancho Ardona, etc., et al. v. Hon. Reyes, etc., et al., supra; Peralta v. Commission on Elections,supra.

[93] Heirs of Juancho Ardona, etc., et al.  v. Hon. Reyes, etc., et al., supra; Peralta v. Commission on Elections, supra.

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[94] G.R. No. 100883, December 2, 1991, 204 SCRA 516.

[95] Id. at 523.

DISSENTING OPINION

CARPIO, J.: 

The Cases

These are original actions[1] assailing the validity of statutes and bills on the holding of elections in the Autonomous Region in Muslim Mindanao (ARMM).

Background  

The ARMM Organic Act, Republic Act No. 6734 (RA 6734), as amended by Republic Act No. 9054 (RA 9054), mandated the holding of the "first regular elections for Governor, Vice-Governor and Members of the Regional Legislative Assembly x x x on the second Monday of September 2001."[2] The elected officials would serve a three-year term beginning 30 September 2001.[3] Before the September 2001 elections could take place, however, Congress moved the elections to 26 November 2001 by enacting Republic Act No. 9140 (RA 9140).[4]

Nearly four years later, Congress enacted Republic Act No. 9333 (RA 9333) fixing the date of the "regular elections" in the ARMM "on the second Monday of August 2005 [and] x x x every three years thereafter."[5] Elections in the ARMM took place on the second Mondays of August 2005 and August 2008 following RA 9333.

A few months before the ARMM elections on the second Monday of August 2011, several members of the House of Representatives jointly filed House Bill No. 4146 (HB 4146), moving the date of the elections to "the second Monday of May 2013 and x x x every three years thereafter." As the term of office of the then incumbent elective officials in the ARMM would expire on 30 September 2011, HB 4146 authorized the President to appoint officers-in-charge who would hold office from 30 September 2011 until 30 June 2013 when the officials elected in the May 2013 elections would have assumed office. HB 4146 aimed to synchronize the ARMM elections with the local and national elections scheduled on the second Monday of May 2013.[6] The House of Representatives approved HB 4146 on 23 March 2011, voting 191- 47 with two abstentions.

After receiving HB 4146, the Senate, where a counterpart measure (Senate Bill No. 2756 [SB 2756]) was pending, approved its own version on 6 June 2011 by a vote of 13-7, modifying some parts of HB 4146 but otherwise leaving its core provisions intact. The affirmative votes were two votes short of 2/3 of the Senate membership (23). The following day, the House of Representatives adopted the Senate's version. On 30 June 2011, the President signed the measure into law as Republic Act No. 10153 (RA 10153).

After the House of Representatives approved HB 4146, petitioners in G.R. No. 196271 filed their petition assailing the constitutionality of HB 4146, SB 2756 and RA 9333. Soon after, petitioner in G.R. No. 196305 filed suit assailing the constitutionality of RA 9333. After the President signed into law RA 10153, petitioners in G.R. Nos. 197221, 197280, 197282, 197392 and 197454 filed their petitions assailing the constitutionality of RA 10153. Petitioners in G.R. No. 197280 also assail the constitutionality of RA 9140 and RA 9333. In a supplemental petition, petitioners in G.R. No. 196271 joined these latter petitions in questioning the constitutionality of RA 10153.

The petitions against RA 9140, RA 9333 and RA 10153[7] treat these laws as amending RA 9054 and charge Congress with failing to comply with the twin requirements prescribed in Sections 1 and 3, Article XVII of RA 9054[8] for amending RA 9054. These twin requirements are: (1) approval by a 2/3 vote of the members of the House of Representatives and the Senate voting separately, and (2) submission of the amendments to ARMM voters in a plebiscite. RA 9140, RA 9333 and RA 10153 do not provide for their submission to ARMM voters in a plebiscite. On the other hand, although the 191 affirmative votes in the Lower House for HB 4146 satisfied the 2/3 vote threshold in RA 9054, the 13 affirmative votes in the Senate for SB 2756 fell two votes short of the 2/3 vote threshold.

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Petitioners' unanimity ends here, however, for they differ on when the elections in the ARMM should take place. The petitions against RA 10153 favor the holding of elections on the second Monday of August 2011[9] while those attacking RA 9333 only,[10] or together with RA 9140 and RA 10153,[11] seek the holding of elections on the second Monday of September 2011, purportedly following RA 9054. Another petition, which finds RA 10153 unconstitutional, leave it to the Court to order special elections within a period "reasonably close" to the elections mandated in RA 9333.[12]

The petitions against RA 10153 further raise the following issues: (1) postponing the ARMM elections to the second Monday of May 2013 undermines the republican and autonomous nature of the ARMM, in violation of the Constitution and RA 9054; (2) granting the President the power to appoint OICs unconstitutionally expands his power over the ARMM to encompass not only general supervision but also control; and, for the petition in G.R. No. 197280, (3) Congress, in enacting RA 10153, defectively waived the Constitution's requirement for the separate reading of bills and the advance distribution of their printed copies because the President's certification for the urgent passage of HB 4146 and SB 2756 was not grounded on public calamity or emergency.

The petition in G.R. No. 196271 extends the reach of its attack to HB 4146 and SB 2756, for failing to include a provision requiring the submission of the anticipated law to ARMM voters in a plebiscite.

In their separate Comments to the petitions in G.R. No. 196271 and G.R. No. 196305, the Senate and the House of Representatives pray for the dismissal of the petitions. The Senate disagrees with the proposition that RA 9333 constitutes an amendment to RA 9054, treating RA 9333 as merely filling the void left by RA 9054 in failing to schedule the succeeding regular elections in the ARMM. Thus, the Senate finds irrelevant the twin requirements in RA 9054 in the enactment of the assailed laws. Alternatively, the Senate gives a narrow construction to the plebiscite requirement in RA 9054, limiting the plebiscite to cover amendatory laws affecting "substantive matters," as opposed to "administrative concerns" such as fixing election dates.[13]

The House of Representatives accepts the amendatory nature of RA 9333 but attacks the constitutionality of the twin requirements in RA 9054 mandating a supermajority vote of each House of Congress and the approval by ARMM voters in a plebiscite for purposes of amending RA 9054. The Lower House grounds its attack on two points: (1) save in exceptional cases not applicable to the present petitions, the Constitution only requires a simple majority of a quorum in each House of Congress to enact, amend or repeal laws; and (2) the rule against the passage of irrepealable laws. Alternatively, the House of Representatives, like the Senate, narrowly construes the plebiscite requirement in RA 9054 to cover only amendatory laws creating or expanding the ARMM's territory.

The Senate and the House of Representatives uniformly contend that the question on the constitutionality of HB 4146 and SB 2756 is non-justiciable.

The Office of the Solicitor General (OSG), representing respondent Commission on Elections (COMELEC) and the other individual public respondents, joined causes with the House of Representatives on the issue of the validity of the twin requirements in RA 9054 for the passage of amendatory laws. In defending the President's authority under RA 10153 to appoint OICs, the OSG treats the authority as a species of legislation falling under Section 16, Article VII of the Constitution authorizing the President to appoint "those whom he may be authorized by law to appoint." The OSG rejects petitioners' treatment of this authority as granting the President control over the ARMM, contending instead that it is analogous to Section 7, Article XVIII of the Constitution, authorizing the President for a limited period to appoint sectoral representatives in the House of Representatives.

On 9 August 2011, the Court heard the parties in oral argument.

On 13 September 2011, the Court issued a temporary restraining order enjoining respondents from implementing RA 10153. Meanwhile, the Court authorized the then incumbent elective officials in the ARMM to continue in office in the event that the present petitions remain unresolved after the officials' term of office expires on 30 September 2011.

The Court granted intervention to four groups of parties who filed comments-in-intervention joining causes with respondents.

The Issues 

The following are the issues for resolution:

I. Did the passage of RA 10153 violate Section 26(2), Article VI of the Constitution?

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Kida of Senate of the PhilippinesII. Do Section 2 of RA 10153, Section 1 of RA 9333 and Section 2 of RA 9140 constitute an amendment to Section 7, Article

XVIII of RA 9054? If in the affirmative -

A. Is Section 1, Article XVII of RA 9054 repugnant to Section 1 and Section 16(2), Article VI of the Constitution and violative of the rule against the passage of irrepealable laws?; and

B. Does Section 3, Article XVII of RA 9054 apply only in the creation of autonomous regions under paragraph 2, Section 18, Article X of the Constitution?

III. Do Sections 3, 4 and 5 of RA 10153 -

A. Violate Sections 15, 16, and 18, Article X of the Constitution?;B. Fall under Section 16, Article VII of the Constitution?; andC. Repeal the second sentence of Section 7(1), Article VII of RA 9054?

IV. Does RA 10153 implement Sections 2 and 5, Article XVIII of the Constitution?

I vote to declare RA 9333 constitutional, and RA 10153 partly unconstitutional. The synchronization of the ARMM elections with the national and local elections under RA 10153 is constitutional. However, Sections 3, 4 and 5 of RA 10153 authorizing the President to appoint OICs in place of elective ARMM officials are unconstitutional. Save in newly created local government units prior to special or regular elections, elective officials of local government units like the ARMM cannot be appointed by the President but must be elected in special or regular elections. Hence, respondent COMELEC should be ordered to hold special elections in the ARMM as soon as possible.

Pending the assumption to office of the elected ARMM Governor, the President, under his general supervision over local governments, may appoint an officer-in-charge in the office of the ARMM Governor. Such appointment is absolutely necessary and unavoidable to keep functioning essential government services in the ARMM. On the other hand, I vote to declare unconstitutional the second sentence of Section 7(1), Article VII of RA 9054 authorizing ARMM elective officials to hold over until the election and qualification of their successors. Such hold over violates the fixed term of office of elective local officials under the Constitution.

The challenge against the constitutionality of HB 4146 and SB 2756 raises a non-justiciable question, hence immediately dismissible. Until legislative bills become laws, attacks against their constitutionality are premature, lying beyond the pale of judicial review.[14]

The President's Certification on Urgency of LegislationNot Subject to Heightened Scrutiny

Petitioners in G.R. No. 197280 claim that Congress defectively passed RA 10153 for failing to comply with the requirement in the Constitution for the reading of bills on three separate days and the advanced distribution of their printed copies in final form under the second paragraph of Section 26, Article VI, which provides:

No bill passed by either House shall become a law unless it has passed three readings on separate days, and printed copies thereof in its final form have been distributed to its Members three days before its passage, except when the President certifies to the necessity of its immediate enactment to meet a public calamity or emergency. Upon the last reading of a bill, no amendment thereto shall be allowed, and the vote thereon shall be taken immediately thereafter, and the yeas and nays entered in the Journal. (Emphasis supplied)

Although the President certified HB 4146 and SB 2756 as urgent measures, thus dispensing with the bills' separate reading and advanced distribution, petitioners in G.R. No. 197280 find the basis of the President's certification, namely, the "need to protect x x x ARMM's autonomy x x x and provide mechanism to institutionalize electoral reforms," as "flimsy," falling short of the Constitution's requirement of public calamity or emergency.[15]

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The Court has refused in the past to subject to heightened scrutiny presidential certifications on the urgency of the passage of legislative measures. In Tolentino v. Secretary of Finance,[16] petitioners in that case questioned the sufficiency of the President's certification of a "growing budget deficit" as basis for the urgent passage of revenue measures, claiming that this does not amount to a public calamity or emergency. The Court declined to strike down the President's certification upon a showing that members of both Houses of Congress had the opportunity to study the bills and no fundamental constitutional rights were "at hazard":

It is nonetheless urged that the certification of the bill in this case was invalid because there was no emergency, the condition stated in the certification of a "growing budget deficit" not being an unusual condition in this country.

It is noteworthy that no member of the Senate saw fit to controvert the reality of the factual basis of the certification. To the contrary, by passing S. No. 1630 on second and third readings on March 24, 1994, the Senate accepted the President's certification. Should such certification be now reviewed by this Court, especially when no evidence has been shown that, because S. No. 1630 was taken up on second and third readings on the same day, the members of the Senate were deprived of the time needed for the study of a vital piece of legislation?

The sufficiency of the factual basis of the suspension of the writ of habeas corpus or declaration of martial law under Art. VII, § 18, or the existence of a national emergency justifying the delegation of extraordinary powers to the President under Art. VI, § 23(2), is subject to judicial review because basic rights of individuals may be at hazard. But the factual basis of presidential certification of bills, which involves doing away with procedural requirements designed to insure that bills are duly considered by members of Congress, certainly should elicit a different standard of review. (Emphasis supplied)

As in Tolentino, Congress, in passing RA 10153, found sufficient the factual bases for President Aquino's certification of HB 4146 and SB 2756 as emergency measures. Petitioners in G.R. No. 197280 do not allege, and there is nothing on record to show, that members of Congress were denied the opportunity to examine HB 4146 and SB 2756 because of the President's certification. There is thus no basis to depart fromTolentino.[17]

RA 9333 and RA 10153 Supplement and do not Amend RA 9054

The petitions assailing RA 9333 and RA 10153 are united in their contention that these amendatory laws to RA 9054 are invalid for failure to comply with the twin requirements in RA 9054, namely, that the amendments must be approved by a 2/3 vote of each House of Congress and submitted to ARMM voters in a plebiscite. The underlying assumption of petitioners' theory - that RA 9333 and RA 10153 amend RA 9054 - is legally baseless.

Section 7, Article XVIII of RA 9054 on the holding of ARMM elections provides in part:

First Regular Elections. - The first regular elections of the Regional Governor, Regional Vice-Governor and members of the regional legislative assembly under this Organic Act shall be held on the second Monday of September 2001. The Commission on Elections shall promulgate rules and regulations as may be necessary for the conduct of said election. (Emphasis supplied)

x x x x

The ambit of Section 7 is narrow, confined to the "first regular elections," scheduled "on the second Monday of September 2001." This left open the scheduling of electionssucceeding the "first regular elections."

In the exercise of its plenary legislative power, Congress filled this void by enacting RA 9333, Section 1 of which provides:

Section 1. Date of Election. - The regular election for regional Governor and Regional Vice-Governor and Members of the Regional Legislative Assembly of the Autonomous Region in Muslim Mindanao (ARMM) shall be held on the second Monday of August 2005.Succeeding regular elections shall be held on the same date every three years thereafter. (Emphasis supplied)

In the discharge of the same power, Congress subsequently passed RA 10153, Section 2 of which states:

SEC. 2. Regular Elections. - The regular elections for the Regional Governor, Regional Vice-Governor and Members of the Regional Legislative Assembly of the Autonomous Region in Muslim Mindanao (ARMM) shall be held on the second (2[nd])

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Kida of Senate of the PhilippinesMonday of May 2013.Succeeding regular elections shall be held on the same date every three (3) years thereafter. (Emphasis supplied)

Had Congress intended RA 9054 to govern not only the "first regular elections" but also succeeding regular elections, it would have included in Section 7 of Article XVIII a provision stating to the effect that the succeeding regular elections shall be held on the same date every three years thereafter, consistent with the three-year term of office of elective officials in the ARMM.[18] Instead, RA 9054 confines itself to the "first regular elections." Tellingly, it is only in Section 1 of RA 9333 and Section 2 of RA 10153 that Congress touched on the succeeding regular elections in the ARMM, by uniformly providing that "[s]ucceeding regular elections shall be held" on the date indicated "every three years thereafter."

The legislative practice of limiting the reach of the ARMM Organic Act to the first regular elections, leaving the date of the succeeding regular elections for Congress to fix in a subsequent legislation, traces its roots in the ARMM's first Organic Act, RA 6734. Section 7, Article XIX of RA 6734 fixed the date of the "first regular elections," to take place "not earlier than sixty (60) days or later than ninety (90) days" after the ratification of RA 6743. Section 7 reads in full:

The first regular elections of the Regional Governor, Vice-Governor and Members of the Regional Assembly under this Organic Act shall be held not earlier than sixty (60) days or later than ninety (90) days after the ratification of this Act. The Commission on Elections shall promulgate such rules and regulations as may be necessary for the conduct of said election. (Emphasis supplied)

To fix the date of the succeeding regular elections, Congress passed several measures, moving the election day as it deemed proper.[19] Like RA 9333 and RA 10153, these enactments merely filled a void created by the narrow wording of RA 6734. RA 9333 and RA 10153 are therefore separate, stand-alone statutes that do not amend any provision of RA 9054.

RA 9140 Rendered Functus Officio after 26 November 2001 Elections

Petitioners in G.R. No. 197280 attack Section 2 of RA 9140 also for its failure to comply with the twin requirements in amending RA 9054.[20] To recall, under Section 2 of RA 9140, which immediately preceded RA 9333, the date of the first elections in the ARMM under RA 9054 was moved to 26 November 2001.

There is no reason to traverse this issue for the simple reason that Congress passed RA 9140 solely for the narrow purpose of fixing the date of the plebiscite for RA 9054 (Section 1) and the date of the first regular elections in the ARMM under RA 9054 (Section 2). These electoral exercises took place on 14 August 2001 and 26 November 2001, respectively. Hence, RA 9140 became functus officio after 26 November 2001. It is futile, in this case, to review the validity of a functus officio law.

Granting that RA 9333 and RA 10153 AmendRA 9054, these Laws Remain Valid

That RA 9333 and RA 10153 merely filled a void in RA 9054 would have sufficed to dispose of the argument that these laws are invalid for non-compliance with the twin requirements in RA 9054. These requirements would have been left unreviewed were it not for the fact that respondents and intervenors vigorously insist on their invalidity. The issue having been raised squarely, the Court should pass upon it.

Section 1, Article XVII of RA 9054Requiring 2/3 Vote to Amend RA 9054Unconstitutional

Section 1, Article XVII of RA 9054 requires a 2/3 supermajority vote of the members of each House of Congress to amend or repeal RA 9054. This provision states:

Consistent with the provisions of the Constitution, this Organic Act may be reamended or revised by the Congress of the Philippines upon a vote of two-thirds (2/3) of the Members of the House of Representatives and of the Senate voting separately. (Emphasis supplied)

Respondents House of Representatives, COMELEC and individual officials assail this provision's constitutionality on two grounds. First, it is repugnant to Section 16 (2), Article VI of the Constitution requiring a mere majority of members of both Houses of Congress to constitute a quorum to do business.[21] Second, it violates the doctrine barring the passage of irrepealable laws, a

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Kida of Senate of the Philippinesdoctrine rooted on the plenary power of Congress to amend or repeal laws that it enacts.

Section 16 (2), Article VI of the Constitution, which provides that "[a] majority of each House shall constitute a quorum to do business x x x," sets the vote threshold for Congress to conduct its legislative work in plenary session. Under this provision, a majority of each House suffices for Congress to hold sessions and pass, amend, or repeal bills and resolutions, upon a vote of a majority of the members present who constitute a quorum. In short, a majority of a quorum, or a majority of a majority, can enact, amend or repeal laws or approve acts requiring the affirmative action of Congress, unless the Constitution prescribes a qualified or supermajority in specific cases.[22]

By providing that RA 9054 "may be reamended or revised by the Congress of the Philippines upon a vote of two-thirds (2/3) of the Members of the House of Representatives and of the Senate voting separately," Section 1, Article XVII of RA 9054 raised the vote threshold necessary to amend RA 9054 to a level higher than what Section 16 (2), Article VI of the Constitution requires. Thus, without Section 1, Article XVII of RA 9054, it takes only 72[23] votes in the Lower House and 7[24] votes in the Senate to pass amendments or revisions to RA 9054, assuming a simple quorum in attendance in either House. With the same provision in the statute books, at least 189 votes in the House of Representatives and at least 15 in the Senate are needed to enact the same amendatory or repealing legislation, assuming the same simple quorum in either House. The repugnancy between the statutory provision and the Constitution is irreconcilable. Needless to say, the Constitution prevails.

Section 1, Article XVII of RA 9054 also runs afoul of the inherent limitation on Congress' power barring it from passing irrepealable laws.[25] Section 1, Article XVII of RA 9054 erects a high vote threshold for each House of Congress to surmount, effectively and unconstitutionally, taking RA 9054 beyond the reach of Congress' amendatory powers. One Congress cannot limit or reduce the plenary legislative power of succeeding Congresses by requiring a higher vote threshold than what the Constitution requires to enact, amend or repeal laws. No law can be passed fixing such a higher vote threshold because Congress has no power, by ordinary legislation, to amend the Constitution.

The Constitution's rule allowing a simple majority of each House of Congress to do business evinces the framers' familiarity with the perennial difficulty plaguing national legislative assemblies in constituting a quorum. Set the quorum requirement any higher and plenary legislative work will most likely slow down if not grind to a halt. The 2/3 vote threshold in Section 1, Article XVII of RA 9054 effectively ensures the near immutability of RA 9054, in derogation of Congress' plenary power to amend or repeal laws. Unless the Constitution itself mandates a higher vote threshold to enact, amend or repeal laws,[26] each House of Congress can do so by simple majority of the members present who constitute a quorum.

There is no merit in the proposition that Section 1, Article XVII of RA 9054 is an "additional safeguard[] to protect and guarantee" the autonomy of the ARMM.[27]Autonomy, even of the expanded type prevailing in the ARMM, means vesting of more powers and resources to the local or regional government units. To say that autonomy means shackling the hands of Congress in improving laws or passing remedial legislations betrays a gross misconception of autonomy.

Nor is the provision in Section 27(1), Article VI of the Constitution requiring a 2/3 vote for Congress to override a presidential veto an argument for the validity of Section 1, Article XVII of RA 9054. The veto-override provision neither negates the simple majority rule for Congress to legislate nor allows the passage of irrepealable laws. The Presidential veto is a power of the Executive to reject a law[28] passed by Congress, with the associated power of Congress to override such veto by a 2/3 vote. This associated power of Congress is not an independent power to prescribe a higher vote threshold to enact, amend or repeal laws, an act which does not involve any Presidential veto but operates as an auto-limitation on the plenary power of Congress to legislate.

The veto-override provision is a small but vital mechanism presidential systems adopt to calibrate the balance of power between the Executive and the Legislature. It ensures the Executive a substantial voice in legislation by requiring the Legislature to surmount a vote threshold higher than the simple majority required to pass the vetoed legislation. The veto-override provision cannot be used to immobilize future Congresses from amending or repealing laws by a simple majority vote as provided in Section 16(2), Article VI of the Constitution.

Plebiscite Mandatory onlyin Approving Creation or Expansionof the ARMM

The second paragraph of Section 18, Article X of the Constitution requires the holding of a plebiscite in the autonomous region for the approval of its creation, thus:

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Kida of Senate of the PhilippinesThe creation of the autonomous region shall be effective when approved by a majority of the votes cast by the constituent units in a plebiscite called for the purpose. (Emphasis supplied)

Section 18 of Article X is substantially similar to Section 10, Article X of the Constitution, mandating that no local government unit shall be "created, divided, merged, abolished, or its boundaries substantially altered"[29] unless, among others, voters of the affected units approve the proposed measure in a plebiscite.

The narrow ambit of these constitutional provisions, limiting the plebiscite to changes in the size of the unit's territory, is commonsensical. The Constitution requires that territorial changes, affecting the jurisdiction, income, and population of a local government unit, should not be left solely for politicians to decide but must be submitted for approval or rejection by the people affected.[30]

In sharp contrast to the narrow scope of Section 10 and Section 18 of Article X of the Constitution, Section 3, Article XVII of RA 9054 mandates the holding of a plebiscite in the ARMM to approve "[a]ny amendment to or revision of" RA 9054, thus:

Any amendment to or revision of this Organic Act shall become effective only when approved by a majority of the vote cast in a plebiscite called for the purpose, which shall be held not earlier than sixty (60) days or later than ninety (90) days after the approval of such amendment or revision. (Emphasis supplied)

Petitioners give a literal interpretation to this provision by applying it to allamendments to or revisions of RA 9054, including the fixing of the date of elections in the ARMM that RA 10153 mandates.

By requiring the holding of a plebiscite to approve "any amendment to or revision" of RA 9054, Section 3, Article XVII of RA 9054, a supposed statutory implementation of the second paragraph of Section 18, Article X of the Constitution, impermissibly expands the scope of the subject matter that the Constitution requires to be submitted to a plebiscite. By barring any change to RA 9054 from taking effect unless approved by ARMM voters in a plebiscite, even if unrelated to the ARMM's creation, reduction or expansion, Section 3 of Article XVII directly contravenes Section 18, Article X of the Constitution.[31]

True, the Court held in Disomangcop v. Datumanong[32] that Republic Act No. 8999 (RA 8999) creating an engineering office within the ARMM is an "amendatory law which should x x x first obtain the approval of the people of the ARMM before it can validly take effect."[33] This statement, obviously an obiter dicta, furnishes no ground to support petitioners' interpretation of Section 3, Article XVII of RA 9054. What the Court resolved in Disomangcop was whether RA 8999, creating an office performing functions inconsistent with those created under the ARMM Organic Act, prevails over the latter. The Court anchored its negative answer, not on the ground that RA 8999 was invalid for not having been approved in a plebiscite, but on the fact that RA 8999, signed into law in January 2001, "was repealed and superseded by RA 9054," enacted in March 2001. Thus, in disposing of the case, we ruled:

WHEREFORE, considering that Republic Act No. 9054 repealed Republic Act No. 8999 and rendered DPWH Department Order No. 119 functus officio, the petition insofar as it seeks the writs of certiorari and prohibition is GRANTED.[34] x x x x (Emphasis supplied)

The Court was not confronted in Disomangcop, as it is now, with the issue of whether a law changing the date of elections in the ARMM should be submitted to ARMM voters in a plebiscite.

Congress' Power to Synchronize National and Local Electionsdoes not Encompass Appointment of OICs 

in Place of Elective Officials

The Constitution impliedly requires the synchronization of elections for President, Vice-President, members of Congress and local officials after the end of their first term by simultaneously ending their tenure on 30 June 1992, extending in the process the initial tenure of the members of Congress and local officials.[35] As the Court confirmed in Osmeña v. Commission on Elections:[36] "[t]he Constitution has mandated a synchronized national and local election prior to June 30, 1992 or more specifically as provided for in Article XVIII, Sec. 5 - on the second Monday of May 1992."[37] After the Court struck down Republic Act No. 7065 in Osmeña fordesynchronizing local and national elections, Congress subsequently passed Republic Act No. 7166 (RA 7166) synchronizing elections for presidential, vice-presidential, congressional, provincial, city and municipal officials. RA 10153 widens the ambit of the Constitution's policy of synchronizing elections by including the ARMM into the loop of synchronized elections. With the passage of RA 10153, only barangay and sangguniang kabataan elections are excluded from the synchronized national and local elections.[38]

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The contention of petitioners in G.R. No. 196271 that the elections in the ARMM cannot be synchronized with the existing synchronized national and local elections is untenable. Petitioners advance the theory that elections in the ARMM are not "local elections" because ARMM officials are not "local officials" within the meaning of Sections 2 and 5, Article XVIII of the Constitution.[39]

Under Section 1, Article X of the Constitution, the ARMM is a local government unit just like provinces, cities, municipalities, and barangays. Section 1, Article X of the Constitution provides:

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. (Emphasis supplied)

The entire Article X of the Constitution is entitled "Local Government" because Article X governs the creation of, and the grant of powers to, all local government units, including autonomous regions.[40] Thus, elective officials of the ARMM are local officials because the ARMM is a local government unit, just like provinces, cities and municipalities.

Section 8, Article X of the Constitution provides that "[t]he term of office ofelective local officials, except barangay officials, which shall be determined by law,shall be three years x x x." In compliance with this provision, ARMM elective officials serve three-year terms under RA 9054.[41] Congress cannot fix the term of elective local officials in the ARMM for less, or more, than three years. Clearly, elective officials in the ARMM are "local officials" and elections in the ARMM, a local government unit, are "local elections."

Congress' power to provide for the simultaneous holding of elections for national and local officials, however, does not encompass the power to authorize the President to appoint officers-in-charge in place of elective local officials, canceling in the process scheduled local elections. To hold otherwise is to sanction the perversion of the Philippine State's democratic and republican nature.[42] Offices declared by the Constitution as elective must be filled up by election and not by appointment. To appoint officials to offices mandated by the Constitution to be elective, absent an absolutely unavoidable necessity to keep functioning essential government services, is a blatant violation of an express command of the Constitution.

Options to Fill Vacancies in the ARMMElective Offices After 30 September 2011

In desiring to include elections in the ARMM in the existing synchronized national and local elections, Congress faced a dilemma arising from the different schedules of the election cycles under RA 7166 and RA 9333. Under RA 7166, national and local elections simultaneously take place every second Monday of May in a three-year cycle starting 1992. On the other hand, under RA 9333, elections in the ARMM take place every second Monday of August in a three-year cycle starting 2005. Thus, a 21-month gap separates the two electoral cycles. The horn of the dilemma lies in how to fill up elective offices in the ARMM during this gap.

There are three apparent ways out of this dilemma, namely: (1) allow the elective officials in the ARMM to remain in office in a hold over capacity; (2) authorize the President to appoint OICs; or (3) hold special elections in the ARMM, with the terms of those elected to expire on 30 June 2013. Two petitions favor partial hold over pending the holding of special elections.[43] On the other hand, the OSG defends Congress' choice under RA 10153 authorizing the President to appoint OICs who will hold office until 30 June 2013.

Sections 3, 4 and 5 of RA 10153 Authorizing the President to Appoint OICsin Elective Local Offices in the ARMM Unconstitutional

Historically, the legislature has authorized the President to appoint OICs for elective local offices only as an incident to the creation of a new local government unit or to its transition from a sub-unit to a full-fledged political subdivision. Thus, statutes creating the provinces of Quezon del Sur[44] and Dinagat Islands[45] uniformly authorized the President to appoint "an interim governor, vice-governor and members of the sangguniang panlalawigan, who shall serve only until a new set of provincial officials have been elected and qualified."[46] Similarly, the statute creating the municipality of T'boli in South Cotabato authorized the President to "appoint the elective officials of the new Municipality who shall hold office until their successors shall have been duly elected in the general elections next following the issuance of this Decree."[47] The same authorization is found in the Local

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Kida of Senate of the PhilippinesGovernment Code for sub-provinces, authorizing the President to appoint the interim governor, vice-governor and members of the sangguniang panlalawigan while the sub-provinces are transitioning to the status of a province.[48]

These legislative authorizations are rendered imperative by the fact that incipient or transitioning local government units are devoid of elective officials prior to special or regular local elections. Where the law provides for the creation of a local government unit prior to the election of its local officials, it becomes absolutely necessary and unavoidable for the legislature to authorize the President to appoint interim officials in elective local offices to insure that essential government services start to function.

In authorizing the President to appoint OICs in the ARMM, Section 3 of RA 10153 provides:

Appointment of Officers-in-Charge.--The President shall appoint officers-in-charge for the Office of the Regional Governor, Regional Vice-Governor and Members of the Regional Legislative Assembly who shall perform the functions pertaining to the said offices until the officials duly elected in the May 2013 elections shall have qualified and assumed office.

Section 3 is supplemented by Section 4 which provides the manner and procedure of appointment[49] while Section 5 states the qualifications for the OICs.[50]

It takes no extensive analysis to conclude that Section 3 is neither necessary nor unavoidable for the ARMM to function. The ARMM is an existing, as opposed to anewly created or transitioning, local government unit created more than two decades ago in 1989. At the time of the passage of RA 10153, elected officials occupied all the elective offices in the ARMM. No one claims that it is impossible to hold special local elections in the ARMM to determine its next set of elective officials.

Section 3 of RA 10153 negates the representative and democratic nature of the Philippine State and its political subdivisions such as the ARMM.[51] Section 18, Article X of the Constitution on the organic act of autonomous regions expressly requires the organic act to define the "[b]asic 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."[52] The ARMM's Organic Act, RA 6734, as amended by RA 9054, implements Section 18, Article X of the Constitution by mandating the popular election of its executive and legislative officials.[53] Section 3 of RA 10153, however, negates Congress' implementation of the Constitution under RA 9054 by making the executive and legislative offices in the ARMM appointive.

There is no merit in the OSG's argument that Section 3 of RA 10153 is similar to Section 7, Article XVIII of the 1987 Constitution, authorizing the President to appoint sectoral representatives in Congress pending the passage of legislation on party-list representation.[54] The filling of seats in the House of Representatives under Section 7, Article XVIII of the Constitution is authorized by the Constitution itself and thus can never be questioned as unconstitutional. In ratifying the Constitution, the Filipino people authorized the President to appoint sectoral representatives for a limited period. However, the appointment by the President of OICs in the ARMM under Sections 3, 4 and 5 of RA 10153 is not authorized under the Constitution but is in fact in violation of the Constitution that the Filipino people ratified overwhelmingly.

What Section 3 of RA 10153 approximates is the provision in the Freedom Constitution allowing "[a]ll elective x x x officials [to] continue in office until otherwise provided by proclamation or executive order or upon the designation or appointment and qualification of their successors, if such is made within a period of one year from February 25, 1986."[55] Wisely enough, none of the respondents saw fit to invoke this provision as precedent. The mass replacement of elective local officials following the EDSA uprising in 1986 was part of the then revolutionary government's purging of the local government ranks of officials linked to the excesses of the previous regime. In making her appointments, then President Corazon C. Aquino wielded executive and legislative powers unconstrained by any specific constitutional limitation. This is not the situation in the present case.

Nor is Section 3 of RA 10153 a species of legislation falling under Section 16, Article VII of the Constitution authorizing the President to appoint "those whom he may be authorized by law to appoint." This provision does not empower Congress to authorize the President to fill up by appointment positions that, by express mandate of the Constitution, are "elective and representative" offices. Section 16, Article VII of the Constitution obviously refers only to appointive and not elective offices.

Clearly, authorizing the President to appoint OICs in place of elective officials in the ARMM, an existing local government unit, contravenes Section 18, Article X of the Constitution, which mandates that the "executive department and legislative assembly" of the ARMM "shall be elective and representative." Elective local offices in the ARMM, after the ARMM's creation and holding of regular local elections, cannot be filled up through the appointment of OICs by the President without violating Section 18, Article X of the Constitution.

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Kida of Senate of the PhilippinesHowever, under Section 4, Article X of the Constitution, the President exercises "general supervision" over all local governments. In case it is absolutely necessary and unavoidable to keep functioning essential government services, the President may, under his power of general supervision over local governments, appoint OICs where vacancies occur in existing elective local offices and the law does not provide for succession, or where succession is inapplicable because the terms of elective officials have expired.

Thus, the President may appoint an officer-in-charge in the office of the ARMM Governor pending the holding of special local elections in the ARMM. The appointment of such officer-in-charge is absolutely necessary and unavoidable because someone must insure that essential government services continue to function in the ARMM. The officer-in-charge shall exercise the powers and perform the functions of the ARMM Governor under RA 9054 and related laws until the assumption to office of the elected ARMM Governor. However, all appointments made by the officer-in-charge shall terminate upon the assumption to office of the elected Governor.

It is, however, not absolutely necessary and unavoidable to appoint OICs in the ARMM Regional Legislative Assembly because Section 22, Article VII of RA 9054 provides for the automatic reenactment of the ARMM budget if the Regional Legislative Assembly fails to pass the appropriation bill for the ensuing fiscal year.[56] Even without OIC regional assembly members, the ARMM will have an operational budget for the next fiscal year. However, following the Local Government Code, which applies suppletorily to the ARMM,[57] "only the annual appropriations for salaries and wages of existing positions, statutory and contractual obligations, and essential operating expenses authorized in the annual and supplemental budgets for the preceding year" are deemed reenacted.[58] The officer-in-charge in the office of the ARMM Governor shall disburse funds from the reenacted budget in accordance with the applicable provisions of the Local Government Code and its implementing rules.

Second Sentence of Section 7(1), Article VII of RA 9054 Authorizing the Hold Over of ARMM OfficialsUnconstitutional

Petitioner in G.R. No. 197282 invokes the second sentence of Section 7(1), Article VII of RA 9054, which provides:

Terms of Office of Elective Regional Officials. - (1) Terms of Office. The terms of office of the Regional Governor, Regional Vice-Governor and members of the Regional Assembly shall be for a period of three (3) years, which shall begin at noon on the 30th day of September next following the day of the election and shall end at noon of the same date three (3) years thereafter. The incumbent elective officials of the autonomous region shall continue in office until their successors are elected and qualified.[59] (Emphasis supplied)

as statutory authorization for ARMM elective officials at the time of the passage of RA 10153 to remain in office until their successors, elected in special elections, assume office. Petitioner in G.R. No. 197221 invokes the same provision to allow ARMM officials to remain in office until 30 June 2013. On the other hand, respondents-intervenors[60] consider the same provision unconstitutional for extending the term of office of ARMM officials beyond the three years mandated in Section 8, Article X of the Constitution. There is merit to this latter claim.

Section 8, Article X of the Constitution limits the term of office of elective local officials, except barangay officials, to three years:

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. (Emphasis supplied)

Elective ARMM officials are "local officials"[61] within the meaning of Section 8, Article X of the Constitution. The ARMM Charter, RA 9054, complies with Section 8, Article X of the Constitution by providing that "[t]he terms of office of the Regional Governor, Regional Vice-Governor and members of the Regional Assembly shall be for a period of three (3) years."[62]

The question of whether a law may constitutionally mandate the "hold over" of local officials beyond the expiration of their term as fixed in the Constitution is not novel. The Court reviewed such a law in Osmeña and struck down the law, holding that "it is not competent of the legislature to extend the term of officers by providing that they shall hold over until their successors are elected and qualified where the [C]onstitution has x x x prescribed the term":

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Kida of Senate of the Philippines[S]ection 2, Article XVIII of the Constitution x x x provides that the local official first elected under the Constitution shall serve until noon of June 30, 1992. But under Sec. 3 of RA 7056, these incumbent local officials shall hold over beyond June 30, 1992 and shall serve until their successors shall have been duly elected and qualified. It has been held that:

It is not competent for the legislature to extend the term of officers by providing that they shall hold overuntil their successors are elected and qualified where the constitution has in effect or by clear implication prescribed the term and when the Constitution fixes the day on which the official term shall begin, there is no legislative authority to continue the office beyond that period, even though the successors fail to qualify with the time. x x x x

In American Jurisprudence it has been stated as follows:

It has been broadly stated that the legislature cannot, by an act postponing the election to fill an office the term of which is limited by the Constitution, extend the term of the incumbent beyond the period as limited by the Constitution.

Also, there is Section 8, Article X of the Constitution which provides that:

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. . .

x x x .[63] (Boldfacing supplied; italicization in the original)

Osmeña is grounded on reasons of power and public policy. First, the power of Congress to fix the terms of public offices stems from (1) its inherent power to create such public offices or (2) a constitutionally delegated power to that effect. Thus, if a public office is created by the Constitution with a fixed term, or if the term of a public office created by Congress is fixed by the Constitution, Congress is devoid of any power to change the term of that office. Thus, statutes which extend the term of an elective office as fixed in the Constitution - either by postponing elections, changing the date of commencement of term of the successor, or authorizing the incumbent to remain in office until his successor is elected and qualified - are unconstitutional as it amounts to an appointment of an official by Congress to a constitutional office, a power vested either in the Executive or in the electorate,[64] or a negation of the term of office fixed in the Constitution.

Second, constitutional provisions fixing the terms of elective officials serve the ends of democratic republicanism by depriving elective officials of any legal basis to remain in office after the end of their terms, ensuring the holding of elections, and paving the way for the newly elected officials to assume office.[65] Such provisions, which are found in the 1987 Constitution, are framed upon the belief that to ensure democratic values, there must be periodic electoral exercises. By refusing to include hold over provisions in fixing the terms of elective national and non-barangay local officials, the framers of the 1987 Constitution guaranteed not only the elective nature of these offices[66] but also secured our democratic values.

The wisdom of Osmeña is magnified when the evils it seeks to bar are applied to the elective officials whose terms of office the 1987 Constitution fixed, namely:

1. President, with a single term of six years, beginning at noon on the thirtieth day of June next following the day of the election;[67]

2. Vice-President, with a term of six years beginning at noon on the thirtieth day of June next following the day of the election, eligible for one reelection;[68]

3. Senators, with a term of six years beginning at noon on the thirtieth day of June next following the day of the election, unless otherwise provided by law, eligible for two consecutive reelections;[69]

4. Members of the House of Representatives, with a term of three years beginning at noon on the thirtieth day of June next following the day of the election, unless otherwise provided by law, eligible for two consecutive reelections;[70] and

5. Local officials, except barangay officials, with a term of three years, for a maximum of three consecutive terms.[71]

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Kida of Senate of the Philippines

A ruling contrary to Osmeña would allow Congress to pass a law, in the guise of ensuring the continuity of public service and preventing a hiatus in office, mandating the President, Vice-President, Senators, Congressmen and elective local officials other than barangay officials to remain in office "until their successors are elected and qualified." In doing so, Congress would have arrogated to itself the power to lengthen the terms of office of the President, Vice-President, Senators, Congressmen and non-barangay elective local officials in contravention of their terms as fixed in the Constitution. The absence in the Constitution of any provision allowing the hold over of national and non-barangay elective local officials or of any provision vesting on Congress the power to fix the terms of office of these officials means that any alteration in their terms of office can only be effected through a constitutional amendment.

The Local Government Code does not authorize the hold over of elective local officials.[72] This is consistent with the constitutional provision fixing the term, without hold over, of all elective non-barangay local officials. With the exception of the hold over provision in RA 9054, Congress refrained from passing laws allowing hold over of non-barangay elective local officials. Congress passed a law to that effect (Section 5 of Republic Act No. 9164 [RA 9164]) only for barangay and sangguniang kabataanofficials which the Court reviewed and upheld in Sambarani v. COMELEC.[73] The legislature's passage of RA 9164 is in accord with the Constitution's grant to Congress of the power to determine the term of barangay officials.

In contrast, Section 7(1), Article VII of RA 9054, allowing for the hold over of elective local officials in the ARMM, finds no basis in the Constitution. Indeed, Section 7(1) contravenes the Constitution by extending the term of office of such elective local officials beyond the three year period fixed in Section 8, Article X of the Constitution.

Beyond the question of power, Osmeña protects democratic values and assures public order. The certainty of departure from office that term endings and term limits bring carries with it the certainty of the holding of regular and periodic elections, securing the voters' right to elect the officials for the new term. On the other hand, faced with no choice but to leave office on the day their terms end, elective officials stand to gain nothing in sabotaging electoral processes to extend their stay in office.

It is immaterial that the laws Congress enacted in the past postponing elections in the ARMM all contained provisions for the hold over of the incumbents until the election of their successors.[74] None of these laws were challenged before the Court, thus the Court had no occasion to pass upon their validity.[75]

Nor is the Court's Resolution of 13 September 2011 authorizing the then incumbent ARMM elective officials to continue in office under Section 7(1), Article VII of RA 9054 a prejudgment of the provision's validity. The Resolution of 13 September 2011 is a preliminary, ancillary remedy to ensure the continued functioning of essential government services in the ARMM. Implicit in the issuance of the Resolution of 13 September 2011 is the understanding that such was without prejudice to the resolution of the issues raised in these petitions, including the validity of Section 7(1), Article VII of RA 9054.

Section 5, BP 881 Basis for Holding of Special Elections

The unconstitutionality of Section 7(1), Article VII of RA 9054 and Sections 3, 4 and 5 of RA 10153 leaves the holding of special elections as the only constitutionally permissible option to fill up the offices of the ARMM Governor, Vice-Governor and members of the Regional Legislative Assembly after 30 September 2011. Section 5 of Batas Pambansa Bilang 881 (BP 881), as amended, authorizes respondent COMELEC to hold special elections "[w]hen for any serious cause such as x x x loss or destruction of election paraphernalia or records x x x the holding of a free, orderly and honest election should become impossible in any political subdivision x x x."[76] The tight timeframe in the enactment and signing into law of RA 10153 on 30 June 2011, and the filing of the present petitions shortly before and after the signing, rendering impossible the holding of elections on 8 August 2011 as scheduled under RA 9333, is a cause analogous to the administrative mishaps covered in Section 5 of BP 881. The postponement of the ARMM elections was an unavoidable result of the time lag legislative and judicial processes normally entail. The ARMM officials to be elected in the special ARMM elections shall hold office until 30 June 2013, when the terms of office of elective national and local officials covered by the synchronized elections also expire.

Electoral and Other Reforms Must be Consistent With Principles of Regional Autonomy and

Representative Democracy

Beyond the expressly stated policy in RA 10153 of synchronizing national and local elections, the OSG calls the Court's attention to the government's other policy goals in enacting RA 10153. The OSG presents RA 10153 as the cure for the ills plaguing the ARMM, manifested in the symptoms of padded voters' list, rampant criminality and highly dynastic politics, among others.

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Kida of Senate of the Philippines"Genuine regional autonomy," in the OSG's view, starts upon the assumption to office of the newly elected officials on 30 June 2013, when the national government, through the OICs, is done cleaning the ARMM government.[77]

In the first place, these policy goals to reform the ARMM society are nowhere stated or even implied in RA 10153. Electoral reform is mentioned in the President's certification on the urgency of HB 4146 and SB 2756 but RA 10153 itself is silent on such policy goal. The only apparent reason for the enactment of RA 10153 is to synchronize the ARMM elections with the national and local elections, a policy the legislature can pursue even in the absence of a constitutional directive to synchronize all elections.

In any event, it is a terribly dangerous precedent for this Court to legitimize the cancelation of scheduled local elections in the ARMM and allow the appointment of OICs in place of elected local officials for the purpose of reforming the ARMM society and curing all social, political and economic ills plaguing it. If this can be done to the ARMM, it can also be done to other regions, provinces, cities and municipalities, and worse, it can even be done to the entire Philippines: cancel scheduled elections, appoint OICs in place of elective officials, all for the ostensible purpose of reforming society - a purpose that is perpetually a work-in-progress. This Court cannot allow itself to be co-opted into such a social re-engineering in clear violation of the Constitution.

One has to see the problem in the Muslim South in the larger canvass of the Filipino Muslims' centuries-old struggle for self-determination. The Muslim problem in southern Mindanao is rooted on the Philippine State's failure to craft solutions sensitive to the Filipino Muslims' "common and distinctive historical and cultural heritage, economic and social structures, and other relevant characteristics."[78] The framers of the 1987 Constitution, for the first time, recognized these causes and devised a solution by mandating the creation of an autonomous region in Muslim Mindanao, a political accommodation radically vesting State powers to the region, save those withheld by the Constitution and national laws.[79] Lying at the heart of this unprecedented empowerment is the Constitution's guarantee that the executive and legislative offices of the autonomous region shall be "be elective and representative of the constituent political units."[80] The essence of an autonomous region is the untrammeled right of the people in the region to freely choose those who will govern them. A region is not autonomous if its leaders are not elected by the people of the region but appointed by the central government in Manila. It is the solemn duty of this Court to uphold the genuine autonomy of the ARMM as crafted by the framers and enshrined in the Constitution. Otherwise, our Muslim brothers in the South who justifiably seek genuine autonomy for their region would find no peaceful solution under the Constitution.

By disenfranchising voters in the ARMM, even for a single electoral cycle, denying them their fundamental right of electing their leaders and representatives, RA 10153 strikes at the heart of the Constitution's project of creating autonomous regions. In the opinion of the biggest Islamic rebel group in the region, the cancelation of elections under RA 10153 "speaks loudly why this entity [ARMM] is not autonomous; it is controlled, nay dictated, by Manila."[81] Contrary to the OSG's view, denial of the right of suffrage is always too high a price to pay in exchange for promised reforms to be undertaken by OICs with no mandate from the people. Incidentally, the OICs to be appointed under RA 10153 are not even barred from running in the next ARMM elections, immediately putting at risk the promised reforms due to obvious conflict of interest.

The ARMM enjoys no monopoly of the evils the government now belatedly claims it wants to eradicate in passing RA 10153. Private armies and political dynasties litter the length and breadth of this archipelago and spurious voters' registration has perennially polluted the national voters' list. The solutions to these problems lie not in tinkering with democratic processes but in addressing their root causes. Notably, the government recently upgraded the country's age-old manual elections into an automated system, ridding the elections of the fraud-prone manual system, without skipping a single electoral cycle. Similarly, the cleansing of the voters' list is on track, with the incumbent head of respondent COMELEC himself admitting that the COMELEC is now 65%-70% done with biometrics registration.[82]

In reviewing legislative measures impinging on core constitutional principles such as democratic republicanism, the Court, as the last bulwark of democracy, must necessarily be deontological. The Court must determine the constitutionality of a law based on the law's adherence to the Constitution, not on the law's supposed beneficial consequences. The laudable ends of legislative measures cannot justify the denial, even if temporal, of the sovereign people's constitutional right of suffrage -- to choose freely and periodically "those whom they please to govern them."[83] The Court should strike a balance between upholding constitutional imperatives on regional autonomy and republican democratic principles, on the one hand, and the incumbent administration's legislative initiative to synchronize elections, on the other hand. Had it done so here, the Court would have faithfully performed its sworn duty to protect and uphold the Constitution without fear or favor.

Accordingly, I vote to GRANT in part the petitions in G.R. Nos. 196271, 197221, 197280, 197282, 197392 and 197454 and declare UNCONSTITUTIONAL Sections 3, 4 and 5 of Republic Act No. 10153. Respondent Commission on Elections should be ordered to hold, as soon as possible, special elections in the Autonomous Region in Muslim Mindanao for the positions of Governor, Vice-Governor and members of the Regional Legislative Assembly. The officials elected in the special elections should

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Kida of Senate of the Philippineshold office until 30 June 2013. Pending the holding of special elections and the assumption to office of the elected ARMM Governor, the President may appoint an officer-in-charge in the office of the ARMM Governor.

I further vote to declare UNCONSTITUTIONAL the second sentence of Section 7(1), Article VII and Sections 1 and 3, Article XVII of Republic Act No. 9054.

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MMDA vs. Viron

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 170656             August 15, 2007

THE METROPOLITAN MANILA DEVELOPMENT AUTHORITY and BAYANI FERNANDO as Chairman of the Metropolitan Manila Development Authority, petitioners, vs.VIRON TRANSPORTATION CO., INC., respondent.

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

G.R. No. 170657             August 15, 2007

HON. ALBERTO G. ROMULO, Executive Secretary, the METROPOLITAN MANILA DEVELOPMENT AUTHORITY and BAYANI FERNANDO as Chairman of the Metropolitan Manila Development Authority,petitioners, vs.MENCORP TRANSPORTATION SYSTEM, INC., respondent.

D E C I S I O N

CARPIO MORALES, J.:

The following conditions in 1969, as observed by this Court:

Vehicles have increased in number. Traffic congestion has moved from bad to worse, from tolerable to critical. The number of people who use the thoroughfares has multiplied x x x,1

have remained unchecked and have reverberated to this day. Traffic jams continue to clog the streets of Metro Manila, bringing vehicles to a standstill at main road arteries during rush hour traffic and sapping people’s energies and patience in the process.

The present petition for review on certiorari, rooted in the traffic congestion problem, questions the authority of the Metropolitan Manila Development Authority (MMDA) to order the closure of provincial bus terminals along Epifanio de los Santos Avenue (EDSA) and major thoroughfares of Metro Manila.

Specifically challenged are two Orders issued by Judge Silvino T. Pampilo, Jr. of the Regional Trial Court (RTC) of Manila, Branch 26 in Civil Case Nos. 03-105850 and 03-106224.

The first assailed Order of September 8, 2005,2 which resolved a motion for reconsideration filed by herein respondents, declared Executive Order (E.O.) No. 179, hereafter referred to as the E.O., "unconstitutional as it constitutes an unreasonable exercise of police power." The second assailed Order of November 23, 20053 denied petitioners’ motion for reconsideration.

The following facts are not disputed:

President Gloria Macapagal Arroyo issued the E.O. on February 10, 2003, "Providing for the Establishment of Greater Manila Mass Transport System," the pertinent portions of which read:

WHEREAS, Metro Manila continues to be the center of employment opportunities, trade and commerce of the Greater Metro Manila area;

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MMDA vs. VironWHEREAS, the traffic situation in Metro Manila has affected the adjacent provinces of Bulacan, Cavite, Laguna, and Rizal, owing to the continued movement of residents and industries to more affordable and economically viable locations in these provinces;

WHEREAS, the Metropolitan Manila Development Authority (MMDA) is tasked to undertake measures to ease traffic congestion in Metro Manila and ensure the convenient and efficient travel of commuters within its jurisdiction;

WHEREAS, a primary cause of traffic congestion in Metro Manila has been the numerous buses plying the streets that impedes [sic] the flow of vehicles and commuters due to the inefficient connectivity of the different transport modes;

WHEREAS, the MMDA has recommended a plan to decongest traffic by eliminating the bus terminals now located along major Metro Manila thoroughfares and providing more convenient access to the mass transport system to the commuting public through the provision of mass transport terminal facilities   that would integrate the existing transport modes, namely the buses, the rail-based systems of the LRT, MRT and PNR and to facilitate and ensure efficient travel through the improved connectivity of the different transport modes;

WHEREAS, the national government must provide the necessary funding requirements to immediately implement and render operational these projects; and extent to MMDA such other assistance as may be warranted to ensure their expeditious prosecution.

NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Philippines, by virtue of the powers vested in me by law, do hereby order:

Section 1. THE PROJECT. – The project shall be identified as GREATER MANILA TRANSPORT SYSTEM Project.

Section 2. PROJECT OBJECTIVES. – In accordance with the plan proposed by MMDA, the project aims to develop four (4) interim intermodal mass transport terminals to integrate the different transport modes, as well as those that shall hereafter be developed, to serve the commuting public in the northwest, north, east, south, and southwest of Metro Manila. Initially, the project shall concentrate on immediately establishing the mass transport terminals for the north and south Metro Manila commuters as hereinafter described.

Section 3. PROJECT IMPLEMENTING AGENCY. – The Metropolitan Manila Development Authority (MMDA) , is hereby designated as the implementing Agency for the project . For this purpose, MMDA is directed to undertake such infrastructure development work as may be necessary and, thereafter, manage the project until it may be turned-over to more appropriate agencies, if found suitable and convenient. Specifically, MMDA shall have the following functions and responsibilities:

a) Cause the preparation of the Master Plan for the projects, including the designs and costing;

b) Coordinate the use of the land and/or properties needed for the project with the respective agencies and/or entities owning them;

c) Supervise and manage the construction of the necessary structures and facilities;

d) Execute such contracts or agreements as may be necessary, with the appropriate government agencies, entities, and/or private persons, in accordance with existing laws and pertinent regulations, to facilitate the implementation of the project;

e) Accept, manage and disburse such funds as may be necessary for the construction and/or implementation of the projects, in accordance with prevailing accounting and audit polices and practice in government.

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MMDA vs. Vironf) Enlist the assistance of any national government agency, office or department, including local government units, government-owned or controlled corporations, as may be necessary;

g) Assign or hire the necessary personnel for the above purposes; and

h) Perform such other related functions as may be necessary to enable it to accomplish the objectives and purposes of this Executive Order.4 (Emphasis in the original; underscoring supplied)

As the above-quoted portions of the E.O. noted, the primary cause of traffic congestion in Metro Manila has been the numerous buses plying the streets and the inefficient connectivity of the different transport modes;5 and the MMDA had "recommended a plan to decongest traffic by eliminating the bus terminals now located along major Metro Manila thoroughfares and providing more and convenient access to the mass transport system   to the commuting public through the provision of mass transport terminal facilities"6 which plan is referred to under the E.O. as the Greater Manila Mass Transport System Project (the Project).

The E.O. thus designated the MMDA as the implementing agency for the Project.

Pursuant to the E.O., the Metro Manila Council (MMC), the governing board and policymaking body of the MMDA, issued Resolution No. 03-07 series of 20037 expressing full support of the Project. Recognizing the imperative to integrate the different transport modes via the establishment of common bus parking terminal areas, the MMC cited the need to remove the bus terminals located along major thoroughfares of Metro Manila.8

On February 24, 2003, Viron Transport Co., Inc. (Viron), a domestic corporation engaged in the business of public transportation with a provincial bus operation,9 filed a petition for declaratory relief10 before the RTC11 of Manila.

In its petition which was docketed as Civil Case No. 03-105850, Viron alleged that the MMDA, through Chairman Fernando, was "poised to issue a Circular, Memorandum or Order closing, or tantamount to closing, all provincial bus terminals along EDSA and in the whole of the Metropolis under the pretext of traffic regulation."12 This impending move, it stressed, would mean the closure of its bus terminal in Sampaloc, Manila and two others in Quezon City.

Alleging that the MMDA’s authority does not include the power to direct provincial bus operators to abandon their existing bus terminals to thus deprive them of the use of their property, Viron asked the court to construe the scope, extent and limitation of the power of the MMDA to regulate traffic under R.A. No. 7924, "An Act Creating the Metropolitan Manila Development Authority, Defining its Powers and Functions, Providing Funds Therefor and For Other Purposes."

Viron also asked for a ruling on whether the planned closure of provincial bus terminals would contravene the Public Service Act and related laws which mandate public utilities to provide and maintain their own terminals as a requisite for the privilege of operating as common carriers.13

Mencorp Transportation System, Inc. (Mencorp), another provincial bus operator, later filed a similar petition for declaratory relief14 against Executive Secretary Alberto G. Romulo and MMDA Chairman Fernando.

Mencorp asked the court to declare the E.O. unconstitutional and illegal for transgressing the possessory rights of owners and operators of public land transportation units over their respective terminals.

Averring that MMDA Chairman Fernando had begun to implement a plan to close and eliminate all provincial bus terminals along EDSA and in the whole of the metropolis and to transfer their operations to common bus terminals,15 Mencorp prayed for the issuance of a temporary restraining order (TRO) and/or writ of preliminary injunction to restrain the impending closure of its bus terminals which it was leasing at the corner of EDSA and New York Street in Cubao and at the intersection of Blumentritt, Laon Laan and Halcon Streets in Quezon City. The petition was docketed as Civil Case No. 03-106224 and was raffled to Branch 47 of the RTC of Manila.

Mencorp’s petition was consolidated on June 19, 2003 with Viron’s petition which was raffled to Branch 26 of the RTC, Manila.

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MMDA vs. VironMencorp’s prayer for a TRO and/or writ of injunction was denied as was its application for the issuance of a preliminary injunction.16

In the Pre-Trial Order17 issued by the trial court, the issues were narrowed down to whether 1) the MMDA’s power to regulate traffic in Metro Manila included the power to direct provincial bus operators to abandon and close their duly established and existing bus terminals in order to conduct business in a common terminal; (2) the E.O. is consistent with the Public Service Act and the Constitution; and (3) provincial bus operators would be deprived of their real properties without due process of law should they be required to use the common bus terminals.

Upon the agreement of the parties, they filed their respective position papers in lieu of hearings.

By Decision18 of January 24, 2005, the trial court sustained the constitutionality and legality of the E.O. pursuant to R.A. No. 7924, which empowered the MMDA to administer Metro Manila’s basic services including those of transport and traffic management.

The trial court held that the E.O. was a valid exercise of the police power of the State as it satisfied the two tests of lawful subject matter and lawful means, hence, Viron’s and Mencorp’s property rights must yield to police power.

On the separate motions for reconsideration of Viron and Mencorp, the trial court, by Order of September 8, 2005, reversed its Decision, this time holding that the E.O. was "an unreasonable exercise of police power"; that the authority of the MMDA under Section (5)(e) of R.A. No. 7924 does not include the power to order the closure of Viron’s and Mencorp’s existing bus terminals; and that the E.O. is inconsistent with the provisions of the Public Service Act.

Petitioners’ motion for reconsideration was denied by Resolution of November 23, 2005.

Hence, this petition, which faults the trial court for failing to rule that: (1) the requisites of declaratory relief are not present, there being no justiciable controversy in Civil Case Nos. 03-105850 and 03-106224; and (2) the President has the authority to undertake or cause the implementation of the Project.19

Petitioners contend that there is no justiciable controversy in the cases for declaratory relief as nothing in the body of the E.O. mentions or orders the closure and elimination of bus terminals along the major thoroughfares of Metro Manila. Viron and Mencorp, they argue, failed to produce any letter or communication from the Executive Department apprising them of an immediate plan to close down their bus terminals.

And petitioners maintain that the E.O. is only an administrative directive to government agencies to coordinate with the MMDA and to make available for use government property along EDSA and South Expressway corridors. They add that the only relation created by the E.O. is that between the Chief Executive and the implementing officials, but not between third persons.

The petition fails.

It is true, as respondents have pointed out, that the alleged deficiency of the consolidated petitions to meet the requirement of justiciability was not among the issues defined for resolution in the Pre-Trial Order of January 12, 2004. It is equally true, however, that the question was repeatedly raised by petitioners in their Answer to Viron’s petition,20 their Comment of April 29, 2003 opposing Mencorp’s prayer for the issuance of a TRO,21 and their Position Paper of August 23, 2004.22

In bringing their petitions before the trial court, both respondents pleaded the existence of the essential requisites for their respective petitions for declaratory relief,23 and refuted petitioners’ contention that a justiciable controversy was lacking.24 There can be no denying, therefore, that the issue was raised and discussed by the parties before the trial court.

The following are the essential requisites for a declaratory relief petition: (a) there must be a justiciable controversy; (b) the controversy must be between persons whose interests are adverse; (c) the party seeking declaratory relief must have a legal interest in the controversy; and (d) the issue invoked must be ripe for judicial determination.25

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MMDA vs. VironThe requirement of the presence of a justiciable controversy is satisfied when an actual controversy or theripening seeds thereof exist between the parties, all of whom are sui juris and before the court, and the declaration sought will help in ending the controversy.26 A question becomes justiciable when it is translated into a claim of right which is actually contested.27

In the present cases, respondents’ resort to court was prompted by the issuance of the E.O. The 4 th Whereas clause of the E.O. sets out in clear strokes the MMDA’s plan to "decongest traffic by eliminating the bus terminals now located along major Metro Manila thoroughfares and providing more convenient access to the mass transport system to the commuting public through the provision of mass transport terminal facilities x x x." (Emphasis supplied)

Section 2 of the E.O. thereafter lays down the immediate establishment of common bus terminals for north- and south-bound commuters. For this purpose, Section 8 directs the Department of Budget and Management to allocate funds of not more than one hundred million pesos (P100,000,000) to cover the cost of the construction of the north and south terminals. And the E.O. was made effective immediately.

The MMDA’s resolve to immediately implement the Project, its denials to the contrary notwithstanding, is also evident from telltale circumstances, foremost of which was the passage by the MMC of Resolution No. 03-07, Series of 2003 expressing its full support of the immediate implementation of the Project.

Notable from the 5th Whereas clause of the MMC Resolution is the plan to "remove the bus terminals located along major thoroughfares of Metro Manila and an urgent need to integrate the different transport modes." The 7 thWhereas clause proceeds to mention the establishment of the North and South terminals.

As alleged in Viron’s petition, a diagram of the GMA-MTS North Bus/Rail Terminal had been drawn up, and construction of the terminal is already in progress. The MMDA, in its Answer28 and Position Paper,29 in fact affirmed that the government had begun to implement the Project.

It thus appears that the issue has already transcended the boundaries of what is merely conjectural or anticipatory.

Under the circumstances, for respondents to wait for the actual issuance by the MMDA of an order for the closure of respondents’ bus terminals would be foolhardy for, by then, the proper action to bring would no longer be for declaratory relief which, under Section 1, Rule 6330 of the Rules of Court, must be brought before there is a breach or violation of rights.

As for petitioners’ contention that the E.O. is a mere administrative issuance which creates no relation with third persons, it does not persuade. Suffice it to stress that to ensure the success of the Project for which the concerned government agencies are directed to coordinate their activities and resources, the existing bus terminals owned, operated or leased by third persons like respondents would have to be eliminated; and respondents would be forced to operate from the common bus terminals.

It cannot be gainsaid that the E.O. would have an adverse effect on respondents. The closure of their bus terminals would mean, among other things, the loss of income from the operation and/or rentals of stalls thereat. Precisely, respondents claim a deprivation of their constitutional right to property without due process of law.

Respondents have thus amply demonstrated a "personal and substantial interest in the case such that [they have] sustained, or will sustain, direct injury as a result of [the E.O.’s] enforcement."31 Consequently, the established rule that the constitutionality of a law or administrative issuance can be challenged by one who will sustain a direct injury as a result of its enforcement has been satisfied by respondents.

On to the merits of the case.

Respondents posit that the MMDA is devoid of authority to order the elimination of their bus terminals under the E.O. which, they argue, is unconstitutional because it violates both the Constitution and the Public Service Act; and that neither is the MMDA clothed with such authority under R.A. No. 7924.

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MMDA vs. VironPetitioners submit, however, that the real issue concerns the President’s authority to undertake or to cause the implementation of the Project. They assert that the authority of the President is derived from E.O. No. 125, "Reorganizing the Ministry of Transportation and Communications Defining its Powers and Functions and for Other Purposes," her residual power and/or E.O. No. 292, otherwise known as the Administrative Code of 1987. They add that the E.O. is also a valid exercise of the police power.

E.O. No. 125,32 which former President Corazon Aquino issued in the exercise of legislative powers, reorganized the then Ministry (now Department) of Transportation and Communications. Sections 4, 5, 6 and 22 of E.O. 125, as amended by E.O. 125-A,33 read:

SECTION 4. Mandate. — The Ministry shall be the primary policy, planning, programming, coordinating, implementing, regulating and administrative entity of the Executive Branch   of the government in the promotion, development and regulation of dependable and coordinated networks of transportation   and communication systems as well as in the fast, safe, efficient and reliable postal, transportation and communications services.

To accomplish such mandate, the Ministry shall have the following objectives:

(a) Promote the development of dependable and coordinated networks of transportation and communications systems;

(b) Guide government and private investment in the development of the country’s intermodal transportation and communications systems   in a most practical, expeditious, and orderly fashion for maximum safety, service, and cost effectiveness; (Emphasis and underscoring supplied)

x x x x

SECTION 5. Powers and Functions. — To accomplish its mandate, the Ministry shall have the following powers and functions:

(a) Formulate and recommend national policies and guidelines for the preparation and implementation of integrated and comprehensive transportation and communications systems at the national, regional and local levels;

(b) Establish and administer comprehensive and integrated programs for transportation and communications, and for this purpose, may call on any agency, corporation, or organization, whether public or private, whose development programs include transportation and communications as an integral part thereof, to participate and assist in the preparation and implementation of such program;

(c) Assess, review and provide direction to transportation and communications research and development programs of the government in coordination with other institutions concerned;

(d) Administer all laws, rules and regulations in the field of transportation and communications; (Emphasis and underscoring supplied)

x x x x

SECTION 6. Authority and Responsibility. — The authority and responsibility for the exercise of the mandate of the Ministry and for the discharge of its powers and functions shall be vested in the Minister of Transportation and Communications, hereinafter referred to as the Minister, who shall have supervision and control over the Ministry and shall be appointed by the President. (Emphasis and underscoring supplied)

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MMDA vs. VironSECTION 22. Implementing Authority of Minister. — The Minister shall issue such orders, rules, regulations and other issuances as may be necessary to ensure the effective implementation of the provisions of this Executive Order. (Emphasis and underscoring supplied)

It is readily apparent from the abovequoted provisions of E.O. No. 125, as amended, that the President, then possessed of and exercising legislative powers, mandated the DOTC to be the primary policy, planning, programming, coordinating, implementing, regulating and administrative entity to promote, develop and regulate networks of transportation and communications. The grant of authority to the DOTC includes the power toestablish and administer comprehensive and integrated programs for transportation and communications.

As may be seen further, the Minister (now Secretary) of the DOTC is vested with the authority and responsibility to exercise the mandate given to the department. Accordingly, the DOTC Secretary is authorized to issue such orders, rules, regulations and other issuances as may be necessary to ensure the effective implementation of the law.

Since, under the law, the DOTC is authorized to establish and administer programs and projects for transportation, it follows that the President may exercise the same power and authority to order the implementation of the Project, which admittedly is one for transportation.

Such authority springs from the President’s power of control over all executive departments as well as the obligation for the faithful execution of the laws under Article VII, Section 17 of the Constitution which provides:

SECTION 17. The President shall have control of all the executive departments, bureaus and offices. He shall ensure that the laws be faithfully executed.

This constitutional provision is echoed in Section 1, Book III of the Administrative Code of 1987. Notably, Section 38, Chapter 37, Book IV of the same Code defines the President’s power of supervision and control over the executive departments, viz:

SECTION 38. Definition of Administrative Relationships. — Unless otherwise expressly stated in the Code or in other laws defining the special relationships of particular agencies, administrative relationships shall be categorized and defined as follows:

(1) Supervision and Control. — Supervision and control shall include authority to act   directly whenever a specific function is entrusted by law or regulation to a subordinate; direct the performance of duty; restrain the commission of acts; review, approve, reverse or modify acts and decisions of subordinate officials or units; determine priorities in the execution of plans and programs. Unless a different meaning is explicitly provided in the specific law governing the relationship of particular agencies the word "control" shall encompass supervision and control as defined in this paragraph. x x x (Emphasis and underscoring supplied)

Thus, whenever a specific function is entrusted by law or regulation to a subordinate, the President may act directly or merely direct the performance of a duty.34

Respecting the President’s authority to order the implementation of the Project in the exercise of the police power of the State, suffice it to stress that the powers vested in the DOTC Secretary to establish and administer comprehensive and integrated programs for transportation and communications and to issue orders, rules and regulations to implement such mandate (which, as previously discussed, may also be exercised by the President) have been so delegated for the good and welfare of the people. Hence, these powers partake of the nature of police power.

Police power is the plenary power vested in the legislature to make, ordain, and establish wholesome and reasonable laws, statutes and ordinances, not repugnant to the Constitution, for the good and welfare of the people.35 This power to prescribe regulations to promote the health, morals, education, good order or safety, and general welfare of the people flows from the recognition that salus populi est suprema lex ─ the welfare of the people is the supreme law.

While police power rests primarily with the legislature, such power may be delegated, as it is in fact increasingly being delegated.36 By virtue of a valid delegation, the power may be exercised by the President and administrative boards37 as

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MMDA vs. Vironwell as by the lawmaking bodies of municipal corporations or local governments under an express delegation by the Local Government Code of 1991.38

The authority of the President to order the implementation of the Project notwithstanding, the designation of the MMDA as the implementing agency for the Project may not be sustained. It is ultra vires, there being no legal basis therefor.

It bears stressing that under the provisions of E.O. No. 125, as amended, it is the DOTC, and not the MMDA, which is authorized to establish and implement a project such as the one subject of the cases at bar. Thus, the President, although authorized to establish or cause the implementation of the Project, must exercise the authority through the instrumentality of the DOTC which, by law, is the primary implementing and administrative entity in the promotion, development and regulation of networks of transportation, and the one so authorized to establish and implement a project such as the Project in question.

By designating the MMDA as the implementing agency of the Project, the President clearly overstepped the limits of the authority conferred by law, rendering E.O. No. 179 ultra vires.

In another vein, the validity of the designation of MMDA flies in the absence of a specific grant of authority to it under R.A. No. 7924.

To recall, R.A. No. 7924 declared the Metropolitan Manila area39 as a "special development and administrative region" and placed the administration of "metro-wide" basic services affecting the region under the MMDA.

Section 2 of R.A. No. 7924 specifically authorizes the MMDA to perform "planning, monitoring and coordinative functions, and in the process exercise regulatory and supervisory authority over the delivery of metro-wide services," including transport and traffic management.40 Section 5 of the same law enumerates the powers and functions of the MMDA as follows:

(a) Formulate, coordinate and regulate the implementation of medium and long-term plans and programs for the delivery of metro-wide services, land use and physical development within Metropolitan Manila, consistent with national development objectives and priorities;

(b) Prepare, coordinate and regulate the implementation of medium-term investment programs for metro-wide services which shall indicate sources and uses of funds for priority programs and projects, and which shall include the packaging of projects and presentation to funding institutions;

(c) Undertake and manage on its own metro-wide programs and projects for the delivery of specific services under its jurisdiction, subject to the approval of the Council. For this purpose, MMDA can create appropriate project management offices;

(d) Coordinate and monitor the implementation of such plans, programs and projects in Metro Manila; identify bottlenecks and adopt solutions to problems of implementation;

(e) The MMDA shall set the policies concerning traffic in Metro Manila, and shall coordinate and regulate the implementation of all programs and projects concerning traffic management, specifically pertaining to enforcement, engineering and education .   Upon request, it shall be extended assistance and cooperation, including but not limited to, assignment of personnel, by all other government agencies and offices concerned;

(f) Install and administer a single ticketing system, fix, impose and collect fines and penalties for all kinds of violations of traffic rules and regulations ,  whether moving or non-moving in nature, and confiscate and suspend or revoke drivers’ licenses in the enforcement of such traffic laws and regulations, the provisions of RA 4136 and PD 1605 to the contrary notwithstanding. For this purpose, the Authority shall impose all traffic laws and regulations in Metro Manila, through its traffic operation center, and may deputize members of the PNP, traffic enforcers of local government units, duly licensed security guards, or members of non-governmental organizations to whom may be delegated certain authority, subject to such conditions and requirements as the Authority may impose; and

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MMDA vs. Viron(g) Perform other related functions required to achieve the objectives of the MMDA, including the undertaking of delivery of basic services to the local government units, when deemed necessary subject to prior coordination with and consent of the local government unit concerned." (Emphasis and underscoring supplied)

The scope of the function of MMDA as an administrative, coordinating and policy-setting body has been settled inMetropolitan Manila Development Authority (MMDA) v. Bel-Air Village Association, Inc.41 In that case, the Court stressed:

Clearly, the scope of the MMDA’s function is limited to the delivery of the seven (7) basic services. One of these is transport and traffic management which includes the formulation and monitoring of policies, standards and projects to rationalize the existing transport operations, infrastructure requirements, the use of thoroughfares and promotion of the safe movement of persons and goods. It also covers the mass transport system and the institution of a system of road regulation, the administration of all traffic enforcement operations, traffic engineering services and traffic education programs, including the institution of a single ticketing system in Metro Manila for traffic violations. Under this service, the MMDA is expressly authorized to "to set the policies concerning traffic" and "coordinate and regulate the implementation of all traffic management programs." In addition, the MMDA may install and administer a single ticketing system," fix, impose and collect fines and penalties for all traffic violations.

It will be noted that the powers of the MMDA are limited to the following acts: formulation, coordination, regulation, implementation, preparation, management, monitoring, setting of policies, installation of a system and administration. There is no syllable in R.A. No. 7924 that grants the MMDA police power, let alone legislative power. Even the Metro Manila Council has not been delegated any legislative power. Unlike the legislative bodies of the local government units, there is no provision in R.A. No. 7924 that empowers the MMDA or its Council   to ‘enact ordinances, approve resolutions and appropriate funds for the general welfare’ of the inhabitants of Metro Manila. The MMDA is, as termed in the charter itself, a ‘development authority.’ It is an agency created for the purpose of laying down policies   and coordinating with the various national government agencies, people’s organizations, non-governmental organizations and the private sector for the efficient and expeditious delivery of basic services in the vast metropolitan area. All its functions are administrative in nature and these are actually summed up in the charter itself, viz:

‘SECTION 2. Creation of the Metropolitan Manila Development Authority. — . . .

The MMDA shall perform planning, monitoring and coordinative functions, and in the process exercise regulatory and supervisory authority   over the delivery of metro-wide services within Metro Manila, without diminution of the autonomy of the local government units concerning purely local matters.’42 (Emphasis and underscoring supplied)

In light of the administrative nature of its powers and functions, the MMDA is devoid of authority to implement the Project as envisioned by the E.O; hence, it could not have been validly designated by the President to undertake the Project. It follows that the MMDA cannot validly order the elimination of respondents’ terminals.

Even the MMDA’s claimed authority under the police power must necessarily fail in consonance with the above-quoted ruling in MMDA v. Bel-Air Village Association, Inc. and this Court’s subsequent ruling in Metropolitan Manila Development Authority v. Garin43 that the MMDA is not vested with police power.

Even assuming arguendo that police power was delegated to the MMDA, its exercise of such power does not satisfy the two tests of a valid police power measure, viz: (1) the interest of the public generally, as distinguished from that of a particular class, requires its exercise; and (2) the means employed are reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals.44 Stated differently, the police power legislation must be firmly grounded on public interest and welfare and a reasonable relation must exist between the purposes and the means.

As early as Calalang v. Williams,45 this Court recognized that traffic congestion is a public, not merely a private, concern. The Court therein held that public welfare underlies the contested statute authorizing the Director of Public Works to promulgate rules and regulations to regulate and control traffic on national roads.

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MMDA vs. VironLikewise, in Luque v. Villegas,46 this Court emphasized that public welfare lies at the bottom of any regulatory measure designed "to relieve congestion of traffic, which is, to say the least, a menace to public safety."47 As such, measures calculated to promote the safety and convenience of the people using the thoroughfares by the regulation of vehicular traffic present a proper subject for the exercise of police power.

Notably, the parties herein concede that traffic congestion is a public concern that needs to be addressed immediately. Indeed, the E.O. was issued due to the felt need to address the worsening traffic congestion in Metro Manila which, the MMDA so determined, is caused by the increasing volume of buses plying the major thoroughfares and the inefficient connectivity of existing transport systems. It is thus beyond cavil that the motivating force behind the issuance of the E.O. is the interest of the public in general.

Are the means employed appropriate and reasonably necessary for the accomplishment of the purpose. Are they not duly oppressive?

With the avowed objective of decongesting traffic in Metro Manila, the E.O. seeks to "eliminate[e] the bus terminals now located along major Metro Manila thoroughfares and provid[e] more convenient access to the mass transport system to the commuting public through the provision of mass transport terminal facilities x x x."48 Common carriers with terminals along the major thoroughfares of Metro Manila would thus be compelled to close down their existing bus terminals and use the MMDA-designated common parking areas.

In Lucena Grand Central Terminal, Inc. v. JAC Liner, Inc.,49 two city ordinances were passed by the Sangguniang Panlungsod of Lucena, directing public utility vehicles to unload and load passengers at the Lucena Grand Central Terminal, which was given the exclusive franchise to operate a single common terminal. Declaring that no other terminals shall be situated, constructed, maintained or established inside or within the city of Lucena, thesanggunian declared as inoperable all temporary terminals therein.

The ordinances were challenged before this Court for being unconstitutional on the ground that, inter alia, the measures constituted an invalid exercise of police power, an undue taking of private property, and a violation of the constitutional prohibition against monopolies.

Citing De la Cruz v. Paras50 and Lupangco v. Court of Appeals,51 this Court held that the assailed ordinances were characterized by overbreadth, as they went beyond what was reasonably necessary to solve the traffic problem in the city. And it found that the compulsory use of the Lucena Grand Terminal was unduly oppressive because it would subject its users to fees, rentals and charges.

The true role of Constitutional Law is to effect an equilibrium between authority and liberty so that rights are exercised within the framework of the law and the laws are enacted with due deference to rights.

A due deference to the rights of the individual thus requires a more careful formulation of solutions to societal problems.

From the memorandum filed before this Court by petitioner, it is gathered that the Sangguniang Panlungsod had identified the cause of traffic congestion to be the indiscriminate loading and unloading of passengers by buses on the streets of the city proper, hence, the conclusion that the terminals contributed to the proliferation of buses obstructing traffic on the city streets.

Bus terminals per se do not, however, impede or help impede the flow of traffic. How   the outright proscription against the existence of all terminals, apart from that franchised to petitioner, can be considered as reasonably necessary to solve the traffic problem, this Court has not been enlightened. If terminals lack adequate space such that bus drivers are compelled to load and unload passengers on the streets instead of inside the terminals, then reasonable specifications for the size of terminals could be instituted, with permits to operate the same denied those which are unable to meet the specifications.

In the subject ordinances, however, the scope of the proscription against the maintenance of terminals is so broad   that even entities which might be able to provide facilities better than the franchised terminal are barred from operating at all. (Emphasis and underscoring supplied)

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MMDA vs. VironAs in Lucena, this Court fails to see how the prohibition against the existence of respondents’ terminals can be considered a reasonable necessity to ease traffic congestion in the metropolis. On the contrary, the elimination of respondents’ bus terminals brings forth the distinct possibility and the equally harrowing reality of traffic congestion in the common parking areas, a case of transference from one site to another.

Less intrusive measures such as curbing the proliferation of "colorum" buses, vans and taxis entering Metro Manila and using the streets for parking and passenger pick-up points, as respondents suggest, might even be more effective in easing the traffic situation. So would the strict enforcement of traffic rules and the removal of obstructions from major thoroughfares.

As to the alleged confiscatory character of the E.O., it need only to be stated that respondents’ certificates of public convenience confer no property right, and are mere licenses or privileges.52 As such, these must yield to legislation safeguarding the interest of the people.

Even then, for reasons which bear reiteration, the MMDA cannot order the closure of respondents’ terminals not only because no authority to implement the Project has been granted nor legislative or police power been delegated to it, but also because the elimination of the terminals does not satisfy the standards of a valid police power measure.

Finally, an order for the closure of respondents’ terminals is not in line with the provisions of the Public Service Act.

Paragraph (a), Section 13 of Chapter II of the Public Service Act (now Section 5 of Executive Order No. 202, creating the Land Transportation Franchising and Regulatory Board or LFTRB) vested the Public Service Commission (PSC, now the LTFRB) with "x x x jurisdiction, supervision and control over all public services and their franchises, equipment and other properties x x x."

Consonant with such grant of authority, the PSC was empowered to "impose such conditions as to construction, equipment, maintenance, service, or operation as the public interests and convenience may reasonably require"53 in approving any franchise or privilege.

Further, Section 16 (g) and (h) of the Public Service Act54 provided that the Commission shall have the power, upon proper notice and hearing in accordance with the rules and provisions of this Act, subject to the limitations and exceptions mentioned and saving provisions to the contrary:

(g) To compel any public service to furnish safe, adequate, and proper service   as regards the manner of furnishing the same as well as the maintenance of the necessary material and equipment.

(h) To require any public service to establish, construct, maintain, and operate any reasonable extension of its existing facilities, where in the judgment of said Commission, such extension is reasonable and practicable and will furnish sufficient business to justify the construction and maintenance of the same and when the financial condition of the said public service reasonably warrants the original expenditure required in making and operating such extension.(Emphasis and underscoring supplied)

The establishment, as well as the maintenance of vehicle parking areas or passenger terminals, is generally considered a necessary service to be provided by provincial bus operators like respondents, hence, the investments they have poured into the acquisition or lease of suitable terminal sites. Eliminating the terminals would thus run counter to the provisions of the Public Service Act.

This Court commiserates with the MMDA for the roadblocks thrown in the way of its efforts at solving the pestering problem of traffic congestion in Metro Manila. These efforts are commendable, to say the least, in the face of the abominable traffic situation of our roads day in and day out. This Court can only interpret, not change, the law, however. It needs only to be reiterated that it is the DOTC ─ as the primary policy, planning, programming, coordinating, implementing, regulating and administrative entity to promote, develop and regulate networks of transportation and communications ─ which has the power to establish and administer a transportation project like the Project subject of the case at bar.

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MMDA vs. VironNo matter how noble the intentions of the MMDA may be then, any plan, strategy or project which it is not authorized to implement cannot pass muster.

WHEREFORE, the Petition is, in light of the foregoing disquisition, DENIED. E.O. No. 179 is declared NULL and VOID for being ultra vires.

SO ORDERED.