626 Phil. 23

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),[2] the 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.

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

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.

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.

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.

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 "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 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.

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 the Sangguniang Bayan of Sorsogon expired. Galarosa was the incumbent president of the Katipunang Bayan or Association of Barangay Councils (ABC) of the Municipality of Sorsogon, Province of Sorsogon; and was appointed as a member of the Sangguniang Bayan (SB) of Sorsogon pursuant to Executive Order No. 342 in relation to Sec. 146 of Batas Pambansa Blg. 337, the former Local Government Code.

Sec. 494 of the Local Government Code of 1991[27] 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. 491[28] and 494 should be given retroactive effect to adversely affect the presidents of the ABC; hence, the said provisions were to be applied prospectively.

The Court stated that there is no law that prohibits ABC presidents from holding over as members of the Sangguniang Bayan. On the contrary, the IRR, prepared and issued by the Oversight Committee upon specific mandate of 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 the barangays of their representation in the sangguniang bayan during the interregnum when the liga had yet to be formally organized with the election of its officers.

Under the circumstances prevailing in Galarosa, the Court considered the relevant provisions in the IRR formulated by the Oversight Committee and the pertinent issuances of the DILG in the nature of executive construction, which were entitled to great weight and respect.

Courts determine the intent of the law from the literal language of the law within the law's four corners.[30] If the language of the law is plain, clear and unambiguous, courts simply apply the law according to its express terms.[31] 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,[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


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?

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.

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.

xxxx

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.

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.

Carpio, Carpio Morales, Brion, Del Castillo, Villarama, Jr., Perez, and Mendoza, JJ., concur.
Puno, C.J., in the result.
Corona, Velasco, Jr., Leonardo-De Castro, Abad, and Bersamin, JJ., joins the dissent of J. Nachura.
Nachura, J., see dissenting opinion.



[1] On November 14, 2006, petitioners Rodolfo Navarro, Victor F. Bernal, Rohito C. Madelo, Clemente G. Sandigan, Jr., Jerry R. Centro, Jose V. Begil, Jr., Rene O. Medina and Jamar D. Gavino filed before this Court a Petition for Certiorari and Prohibition with Prayer for Temporary Restraining Order against Secretary Eduardo Ermita, the Senate of the Philippines, the House of Representatives, the COMELEC and the Provincial Government and Provincial Treasurer of Surigao del Norte. Petitioners sought for the declaration of R.A. No. 9355 as unconstitutional and invalid, and prayed that the COMELEC be enjoined from conducting a plebiscite pending resolution on the constitutionality of R.A. No. 9355. The petition, docketed as G.R. No. 175158, was dismissed on technical grounds.

[2] Annex "B-1," rollo, p. 89.

[3] Annexes "B," "B-1" to "B-2," id. at 88-90.

[4] Annex "C," id. at 91.

[5] Annex "E," id. at 124.

[6] Id.

[7] Memorandum of respondent Governor Robert Ace S. Barbers, rollo, p. 676.

[8] Memorandum of Petitioners, id. at 462-463.

[9] G.R. No. 132527, July 29, 2005, 465 SCRA 47.

[10] Id.

[11] Province of Batangas v. Romulo, G.R. No. 152774, May 27, 2004, 429 SCRA 736.

[12] Id.

[13] Italics supplied.

[14] Emphasis supplied.

[15] Emphasis supplied.

[16] No. L-73155, July 11. 1986, 142 SCRA 727.

[17] Emphasis supplied.

[18] Tan v. Commission on Elections, supra note 16 at 749.

[19] Id. at 749-750. (Emphasis supplied.)

[20] The IRR was formulated by the Oversight Committee pursuant to Sec. 533 of the Local Government Code:

SEC. 533. Formulation of Implementing Rules and Regulations. - (a) Within one (1) month after the approval of this Code, the President shall convene the Oversight Committee as herein provided for. The said Committee shall formulate and issue the appropriate rules and regulations necessary for the efficient and effective implementation of any and all provisions of this Code, thereby ensuring compliance with the principles of local autonomy as defined under the Constitution.

(b) The Committee shall be composed of the following:

(1) The Executive Secretary, who shall be the Chairman;

(2) Three (3) members of the Senate to be appointed by the President of the Senate, to include the Chairman of the Committee on Local Government;

(3) Three (3) members of the House of Representatives to be appointed by the Speaker, to include the Chair­man of the Committee on Local Government;

(4) The Cabinet, represented by the following:

(i) Secretary of the Interior and Local Government;
(ii) Secretary of Finance;
(iii) Secretary of Budget and Management; and

(5) One (1) representative from each of the following:

(i) The League of Provinces;
(ii) The League of Cities;
(iii) The League of Municipalities; and
(iv) The Liga ng mga Barangay.

[21] League of Cities of the Philippines v. Commission on Elections, G.R. Nos. 176951, 177499, 178056, November 18, 2008, 571 SCRA 263.

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

[23] Local Government Code, 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.

(b) It is also the policy of the State to ensure the accountability of local government units through the institution of effective mechanisms of recall, initiative and referendum.

(c) It is likewise the policy of the State to require all national agencies and offices to conduct periodic consultations with appropriate local government units, nongovernmental and people's organizations, and other concerned sectors of the community before any project or program is implemented in their respective jurisdictions.

[24] G.R. No. 163980, August 2, 2006, 497 SCRA 581.

[25] Id. at 599-601.

[26] G.R. No. 109455, November 11, 1993, 227 SCRA 728.

[27] SEC. 494. Ex Officio Membership in Sanggunians. -- 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.

[28] SEC. 491. Purpose of Organization. --There shall be an organization of all barangays, to be known as the Liga ng mga Barangay, for the primary purpose of determining the representation of the liga in the sanggunians and for ventilating, articulating and crystallizing issues affecting barangay governmental administration and securing, through proper and legal means, solutions thereto.

[29] ART. 210. Liga ng mga barangay. -

x x x x

(d) Ex Officio Membership in the Sanggunian -

(3)The incumbent presidents of the municipal, city, and provincial chapters of the liga shall continue to serve as ex officio members of the sanggunian concerned until the expiration of their term of office, unless sooner revoked for cause.

x x x x

(f) Organizational Structure -

(1) x x x Pending election of the presidents of the municipal, city, provincial, and metropolitan chapters of the liga, the incumbent presidents of the association of barangay councils in the municipality, city, province, and Metropolitan Manila shall continue to act as presidents of the corresponding liga chapters under this Rule.

[30] League of Cities of the Philippines v. Commission on Elections, supra note 17.

[31] Id.

[32] Id.

[33] Rollo, p. 93. (Emphasis supplied.)

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

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

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

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

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

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

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

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

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

[35] Sec. 461, supra.

[36] Annex "A," rollo, pp. 51-61.

[37] Annex "AA," id. at 498. (Emphasis supplied.)

[38] Emphasis supplied.

[39] See League of Cities of the Philippines v. Commission on Elections, supra note 17.

[40] Id.

[41] Ceniza v. Commission on Elections, L-52304, January 28, 1980, 95 SCRA 775.

[42] Bernas, The 1987 Constitution of the Philippines: A Commentary, 625 (2006).

[43] Id.

[44] Cayetano, v. Commission on Elections, G.R. No. 166388, January 23, 2006, 479 SCRA 513.





DISSENTING OPINION


NACHURA, J.:


The ponencia of Justice Peralta seeks to strike down an act of both the legislative and the executive branches--the law creating the province of Dinagat Islands. I register my dissent to the ponencia for I find this judicial interference unnecessary and, in fact, unwarranted in law. Petitioners have not presented a genuine constitutional issue requiring this Court's intervention. In petitioners' earlier and similarly-worded petition--G. R. No. 175158¾the Court found no compelling reason to brush aside technicalities of procedure and resolve the merits of the case. Just like G.R. No. 175158, the present petition deserves the same dismissive treatment from the Court.

I begin with a brief restatement of the pertinent antecedent events.

On October 2, 2006, the President of the Republic approved Republic Act (R.A.) No. 9355,[1] the law creating the province of Dinagat Islands. On December 3 of the same year, the Commission on Elections conducted the plebiscite for the ratification of the said creation. This yielded 69,943 affirmative votes and 63,502 negative votes.[2] Having gotten the nod of the people, the President appointed the interim set of provincial officials who consequently took their oath of office on January 26, 2007. Thereafter, in the May 14, 2007 National and Local Elections, the Dinagatnons elected their new set of provincial officials who assumed office on July 1, 2007.[3]

Not amenable to the advancement of their locality, petitioners, former politicians in the mother province of Surigao del Norte, filed before this Court, on November 10, 2006, G.R. No. 175158, a petition for certiorari and prohibition assailing the constitutionality of the creation of the province.[4] As aforementioned, the Court dismissed the petition on technical grounds--defect in the verification and certification of non-forum shopping and failure by the petitioners' counsel to indicate an updated Integrated Bar of the Philippines official receipt. On motion for reconsideration, the Court rejected petitioners' entreaty for liberality in the application of procedural rules.[5]

Unperturbed, petitioners filed their new petition, the instant case, contending in the main that R.A. No. 9355 is unconstitutional. They posit that the creation of Dinagat Islands did not meet either the land area or the population requirement for the creation of a province. At the time of the passage of the law, the land area of the locality was only 802.12 square kilometers, and its population, only 106,951.[6] It is petitioners' submission that the enactment of R.A. No. 9355 violates Section 461 of R.A. No. 7160 or the Local Government Code (LGC) of 1991,[7] and Section 10, Article X of the Constitution.

I find no merit in petitioners' contention.

Article X, Section 10 of the Constitution provides that--

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 approval by a majority of the votes cast in a plebiscite in the political units directly affected.

For the creation of a province, the LGC provides:

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 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.

Here, the Department of Finance certified that the province of Dinagat Islands has an average annual income of P82,696,433.22 based on 1991 constant prices.[8] As it already meets the primordial income criterion for a province, Dinagat Islands needed only to comply with either the land area or the population criterion.

At this point, I concur with the ponencia that Dinagat Islands does not satisfy the 250,000 population requirement. When the law for its creation was passed in 2006, the province only had a population of 106,951 inhabitants (based on the 2000 Census of Population and Housing) as certified by the National Statistics Office.[9] Further, the 2007 Census of Population reveals that it has only 120,813 inhabitants as of August 1, 2007.[10]

I cannot, however, subscribe to the ponencia's holding that Dinagat Islands fails to comply with the territorial requirement because it only has an aggregate land area of 802.12 sq km. Let it be emphasized that the province is comprised of the municipalities of Basilisa, Cagdianao, Dinagat, Libjo (Albor), Loreto, San Jose and Tubajon, and includes Hibuson Island and approximately 47 islets under the jurisdiction of the said municipalities. This fact relieves it from complying with the criterion that its territory must be contiguous and at least 2,000 sq km in area. Article 9(a)(2) of the Rules and Regulations Implementing (IRR) the LGC of 1991 pertinently provides that the territory need not be contiguous and the land area requirement shall not apply where the proposed province is composed of islands, 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:

x x x x

(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.[11]

The ponencia, however, declares that the portion in the IRR, which reads, "[t]he land area requirement shall not apply where the proposed province is composed of one (1) or more islands," is null and void for going beyond the standard or criterion prescribed by Section 461 of the LGC, and, thus, cannot be used as basis for Dinagat Islands' compliance with the territorial requirement. The ponencia suggests that for the creation of a province, even one composed of islands like the one in this petition, the 2,000-sq km territorial area requirement should still be met despite the reality that its territory is not contiguous, precisely because portions of its territory are separated by bodies of water.

I do not agree with the ponencia's proposition. The province of Dinagat Islands, composed as it is of a group of islands, is exempt from compliance not only with the territorial contiguity requirement but also with the 2,000-sq km land area criterion. This proceeds from no less than Section 461 of the LGC, which, for ready reference, I again quote--

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 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.[12]

Significant in the provision is paragraph (b), underscored above, as it provides for an exemption from the territorial criterion mentioned in paragraph (a).

The stipulation in paragraph (b), however, qualifies not merely the word "contiguous" in paragraph (a)(i) in the same provision, but rather the entirety of the latter paragraph. Paragraph (a)(i) of the provision, for ready reference, reads:

(i) a contiguous territory of at least two thousand (2,000) square kilometers, as certified by the Lands Management Bureau[.][13]

This whole paragraph on contiguity and land area, I repeat for emphasis, is the one being referred to in the exemption from the territorial requirement in paragraph (b). Thus, if the province to be created is composed of islands, like the one in this case, then, its territory need not be contiguous and need not have an area of at least 2,000 sq km. This is because, as the law is worded, contiguity and land area are not two distinct and separate requirements. They qualify each other. For instance, a territory which is contiguous but which is less than 2,000 sq km in land area will not qualify for provincehood and, conversely, a territory which is 2,000 sq km in area but which is not contiguous cannot become a province, following the general rule in paragraph (a)(1). In other words, contiguity and land area are two components of a single requirement--one cannot exist and serve no purpose without the other, so much so that a release from compliance with one component results, naturally and logically, in the corresponding exemption from the other.

Indeed, an exemption from one of the two component requirements in paragraph (a)(i) necessitates an exemption from the other component requirement because the nonattendance of one results in the absence of a reason for the other component requirement to effect a qualification. In other words, a component requirement cannot apply without the other because they qualify each other--one cannot be dissociated from the other.

By rough analogy, the two components are like dicephalic conjoined twins--two heads are attached to a single body. If one head is separated from the other, then the twins die. In the same manner, the law, by providing in paragraph (b) of Section 461 that the territory need not be contiguous if the same is comprised of islands, must be interpreted as intended to exempt such territory from the land area component requirement of 2,000 sq km. Because the two component requirements are inseparable, the elimination of contiguity from the territorial criterion has the effect of a coexistent eradication of the land area component. The territory of the province of Dinagat Islands, therefore, comprising the major islands of Dinagat and Hibuson, and approximately 47 islets, need not be contiguous and need not have an area of at least 2,000 sq km following Section 461 of the LGC.

It will result in superfluity, if not absurdity, if paragraph (b) of the provision is interpreted as referring only to the component requirement of contiguity and not to both component requirements of contiguity and land area. This is because contiguity does not always mean in contact by land. Thus, in so far as islands are concerned, they are deemed contiguous although separated by wide spans of navigable deep waters,[14] with the exception of the high seas, because all lands separated by water touch one another, in a sense, beneath the water.[15] The provision, then, as worded, only means that the exemption in paragraph (b) refers to both the component requirements on territory, that is, contiguity and land area, and not merely to the first, standing alone. For, indeed, why will the law still exempt the islands from the requirement of contiguity when they are already legally contiguous?

By inference, Section 461, in effect, signifies that, if the proposed province is composed of islands, its territory includes not only the land mass above the water but that which is beneath it. Indeed, theoretically, if this entire territory is measured--the one above and beneath the water, then the 2,000 sq km land area would be met with facility. Separate units of measure are, however, used to calculate dry land and that which is covered by water. For expediency, the law, in providing for the criteria for the creation of a province, has exempted groups of islands from the territorial requirement, and this exemption includes the two component requirements of contiguity and land area.

Parenthetically, the Court, more than two decades ago, in Tan v. Commission on Elections,[16] declared in passing that territory means only the mass of land area and excludes the waters over which a political unit exercises control. This pronouncement in Tan is an obiter dictum, the main issue in the petition for prohibition being the propriety of excluding from the plebiscite for the ratification of the creation of Negros del Norte the inhabitants of the mother province of Negros Occidental. Therefore, Tan does not preclude the proper interpretation of Section 461 of the LGC as exempting groups of islands from the territorial requirement for the creation of provinces.

This interpretation of Section 461 is further in line with the law's thrust of enabling the territorial and political subdivisions of the state to attain their fullest development in order to make them more effective partners in the attainment of national goals.[17] The Philippines is composed of 7,107 islands, most of them are small and surrounded by vast bodies of water. The constitution of provinces is aimed at administrative efficiency, effective governance, more equitable delivery of basic services, and economic development. If this Court is to prevent a group of islands, with skyrocketing revenues, from organizing themselves into a province on account alone of their small aggregate land mass, then it would be impeding their advancement as self-reliant communities and, in the process, would hamper the growth of the national economy--an eventuality obviously not envisioned by both the Constitution and the LGC.

Congress, in fact, during its deliberations on what would later on be enacted as the LGC, had paid, if at all it did, little attention to the territorial requirement for the creation of provinces. Instead, it focused on the income requirement and acknowledged the same to be the primordial criterion of viability, thus--

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. LAGUADA: The reason why we are willing to increase the income, double than the House version, because we also believe that economic viability is really a minimum. Land area and population are functions really of the viability of the area, because where you have an income level which would be the trigger point for economic development, population will naturally increase because there will be an immigration. However, if you disallow the particular area from being converted into a province because of population problems in the beginning, it will never be able to reach the point where it could become a province simply because it will never have the economic take off for it to trigger off that economic development.

Now, we're saying that maybe Fourteen Million Pesos is a floor area where it could pay for overhead and provide a minimum of basic services to the population. Over and above that, the provincial officials should be able to trigger off economic development which will attract immigration, which will attract new investments from the private sector. This is now the concern of the local officials. But if we are going to tie the hands of the proponents, simply by telling them, "Sorry, you are now at 150 thousand or 200 thousand," you will never be able to become a province because nobody wants to go to your place. Why? Because you never have any reason for economic viability.

x x x x

CHAIRMAN PIMENTEL: Okay, what about land area?

HON. LUMAUIG: 1,500 square kilometers

HON. ANGARA: Walang problema `yon, in fact that's not very critical, `yong land area because...

CHAIRMAN PIMENTEL: Okay, ya, our, the Senate version is 3.5, 3,500 square meters, ah, square kilometers.

HON. LAGUADA: Ne, Ne. A province is constituted for the purpose of administrative efficiency and delivery of basic services.

CHAIRMAN PIMENTEL: Right.

HON. LAGUADA: Actually, when you come down to it, when government was instituted, there is only one central government and then everybody falls under that. But it was later on subdivided into provinces for purposes of administrative efficiency.

CHAIRMAN PIMENTEL: Okay.

HON. LAGUADA: Now, what we're seeing now is that the administrative efficiency is no longer there 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. LAGUADA: That's why we're going into the minimum income level. As we said, if we go on a minimum income level, then we say, "this is the trigger point at which this administration can take place."[18]

Verily, economic viability is the primordial consideration in the constitution of provinces, not population or territory. As to a province composed of a group of islands separated by stretches of water, like the one in this case, the proposition must apply with greater force. A contrary position would prove to be growth-retardant to an economically viable group of islands which have not yet politically separated from the larger mass of land where the provincial capital sits. In a practical sense, it would also be too cumbersome for the inhabitants to travel great lengths and over unpredictable waters just to reach the capital, do their business and avail of basic government services and facilities that ordinarily do not reach beyond the immediate outskirts of the capital. Thus, Section 461, as discussed above, exempts a proposed province composed of several islands from complying with both the contiguity and land area components of the territorial requirement for its creation. It is this interpretation that, logically, impelled both the executive and legislative departments to enact R.A. No. 9355, the law creating the province of Dinagat Islands. We must accord persuasive effect to this contemporaneous interpretation by the two equal branches of government, and abide by the clear intent of the framers of the law.

Cawaling, Jr. v. Commission on Elections[19] fittingly instructs that every statute enjoys the presumption of constitutionality, owing to the doctrine of separation of powers which imposes upon the three coordinate departments of the Government a becoming courtesy for each other's acts. Every law, being the joint act of the Legislature and the Executive, has passed careful scrutiny to ensure that it is in accord with the fundamental law. Of course, the Court may, nevertheless, declare a law, or portions thereof, unconstitutional, where a petitioner has shown that there is a clear and unequivocal breach of the Constitution, not merely a doubtful or argumentative one. Here, as revealed in the above discussion, petitioners have not shown that Dinagat Islands does not meet the criteria laid down in Section 461 of the LGC for the creation of a province; thus, they cannot assert that R.A. No. 9355 clearly and unequivocally breaches Article X, Section 10 of the Constitution. Absent a genuine constitutional issue, the petition fails in substance. The petition also breaches procedural standards because when the inquiry is focused on the legal existence of a body politic, the action is reserved to the State in a proceeding for quo warranto,[20] not through a petition for certiorari.

In light of the above disquisition, I vote for the dismissal of the petition.



[1] Passed by the House of Representatives and the Senate on August 28, 2006 and August 14, 2006, respectively.

[2] Rollo, pp. 124-127.

[3] Id. at 143.

[4] Rollo (G.R. No. 175158), pp. 3-20.

[5] In its November 28, 2006 Resolution in G.R. No. 175158, the Court dismissed the petition for certiorari as the verification and certification of non-forum shopping were defective or insufficient and the IBP Official Receipt of the counsel for petitioners was dated December 19, 2005. The Court later dismissed the petition with finality in its February 13, 2007 Resolution. The Court further issued the Entry of Judgment on April 11, 2007. (Id. at 77A and 112.)

[6] Rollo, p. 25.

[7] Became effective on January 1, 1992.

[8] Rollo, p. 207.

[9] Id. at 209.

[10] Id. at 498.

[11] Emphasis and underscoring supplied.

[12] Underscoring supplied.

[13] Emphasis supplied.

[14] Board of Supervisors of Houghton County v. Blacker, 92 Mich. 638, 646; 52 N.W. 951, 953 (1892); Vestal v. City of Little Rock, 15 S.W. 891, 892 (1891).

[15] United States v. Hunter, 80 F.2d 968, 970 (1936). This case clarifies that when the intervening water is the high seas over which neither of the lands has exclusive jurisdiction, they are not contiguous territories though no dry land intervenes.

[16] No. L-73155, July 11, 1986, 142 SCRA 727, 749-750.

[17] Section 2 of the LGC provides:

Section 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.

(b) It is also the policy of the State to ensure the accountability of local government units through the institution of effective mechanisms of recall, initiative and referendum.

(c) It is likewise the policy of the State to require all national agencies and offices to conduct periodic consultations with appropriate local government units, nongovernmental and people's organizations, and other concerned sectors of the community before any project or program is implemented in their respective jurisdictions.

[18] Bicameral Conference Committee Meeting of the Committee on Local Government, May 22, 1991, 4th Regular Session, pp. 57-67.

[19] 420 Phil. 524, 530-531 (2001).

[20] Herrera, Remedial Law, Vol. III (1999 ed.), pp. 295-296.



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