Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 180050 May 12, 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.

R E S O L U T I O N

PERALTA, J.:

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

WHEREFORE, the petition is GRANTED. Republic Act No. 9355, otherwise known as An
Act Creating the Province of Dinagat Islands, is hereby declared unconstitutional.
The proclamation of the Province of Dinagat Islands and the election of the
officials thereof are declared NULL and VOID. The provision in Article 9 (2) of the
Rules and Regulations Implementing the Local Government Code of 1991 stating, "The
land area requirement shall not apply where the proposed province is composed of
one (1) or more islands," is declared NULL and VOID.

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

I.

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

II.

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

III.

Recent and prevailing jurisprudence considers the operative fact doctrine as a

reason for upholding the validity and constitutionality of laws involving the
creation of a new local government unit as in the instant case.

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

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

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

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

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

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

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

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

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

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

In his Dissenting Opinion, Justice Nachura agrees that R.A. No. 9355 failed to
comply with the population requirement. However, he contends that the Province of
Dinagat Islands did not fail to comply with the territorial requirement because it
is composed of a group of islands; hence, it is exempt from compliance not only
with the territorial contiguity requirement, but also with the 2,000-square-
kilometer land area criterion in Section 461 of the Local Government Code, which is
reproduced for easy reference:

SEC. 461. Requisites for Creation. -- (a) A province may be created if it has an
average annual income, as certified by the Department of Finance, of not less than
Twenty million pesos (?20,000,000.00) based on 1991 constant prices and either of
the following requisites:

(i) a contiguous territory of at least two thousand (2,000) square kilometers, as

certified by the Lands Management Bureau; or

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

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

(b) The territory need not be contiguous if it comprises two (2) or more islands or
is separated by a chartered city or cities which do not contribute to the income of
the province.

(c) The average annual income shall include the income accruing to the general
fund, exclusive of special funds, trust funds, transfers, and non-recurring
income.6

Justice Nachura contends that the stipulation in paragraph (b) qualifies not merely
the word "contiguous" in paragraph (a) (i) in the same provision, but rather the
entirety of paragraph (a) (i) that reads:

(i) a contiguous territory of at least two thousand (2,000) square kilometers, as

certified by the Lands Management Bureau[.]7

He argues that the whole paragraph on contiguity and land area in paragraph (a) (i)
above is the one being referred to in the exemption from the territorial
requirement in paragraph (b). Thus, he contends that if the province to be created
is composed of islands, like the one in this case, then, its territory need not be
contiguous and need not have an area of at least 2,000 square kilometers. He
asserts that this is because as the law is worded, contiguity and land area are not
two distinct and separate requirements, but they qualify each other. An exemption
from one of the two component requirements in paragraph (a) (i) allegedly
necessitates an exemption from the other component requirement, because the non-
attendance of one results in the absence of a reason for the other component
requirement to effect a qualification.

Similarly, the OSG contends that when paragraph (b) of Section 461 of the Local
Government Code provides that the "territory need not be contiguous if it comprises
two (2) or more islands," it necessarily dispenses the 2,000-sq.-km. land area
requirement, lest such exemption would not make sense. The OSG argues that in
stating that a "territory need not be contiguous if it comprises two (2) or more
islands," the law could not have meant to define the obvious. The land mass of two
or more islands will never be contiguous as it is covered by bodies of water. It is
then but logical that the territory of a proposed province that is composed of one
or more islands need not be contiguous or be at least 2,000 sq. kms.

The Court is not persuaded.

Section 7, Chapter 2 (entitled General Powers and Attributes of Local Government

Units) of the Local Government Code provides:

SEC. 7. Creation and Conversion. � As a general rule, the creation of a local

government unit or its conversion from one level to another level shall be based on
verifiable indicators of viability and projected capacity to provide services, to
wit:

(a) Income. � It must be sufficient, based on acceptable standards, to provide for

all essential government facilities and services and special functions commensurate
with the size of its population, as expected of the local government unit
concerned;

(b) Population. � It shall be determined as the total number of inhabitants within

the territorial jurisdiction of the local government unit concerned; and

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

Compliance with the foregoing indicators shall be attested to by the Department of

Finance (DOF), the National Statistics Office (NSO), and the Lands Management
Bureau (LMB) of the Department of Environment and Natural Resources (DENR).8

It must be emphasized that Section 7 above, which provides for the general rule in
the creation of a local government unit, states in paragraph (c) thereof that the
land area must be contiguous and sufficient to provide for such basic services and
facilities to meet the requirements of its populace.

Therefore, there are two requirements for land area: (1) the land area must be
contiguous; and (2) the land area must be sufficient to provide for such basic
services and facilities to meet the requirements of its populace. A sufficient land
area in the creation of a province is at least 2,000 square kilometers, as provided
by Section 461 of the Local Government Code .

Thus, Section 461 of the Local Government Code, providing the requisites for the
creation of a province, specifically states the requirement of "a contiguous
territory of at least two thousand (2,000) square kilometers."

Hence, contrary to the arguments of both movants, the requirement of a contiguous

territory and the requirement of a land area of at least 2,000 square kilometers
are distinct and separate requirements for land

area under paragraph (a) (i) of Section 461 and Section 7 (c) of the Local
Government Code.

However, paragraph (b) of Section 461 provides two instances of exemption from the
requirement of territorial contiguity, thus:

(b) The territory need not be contiguous if it comprises two (2) or more islands,
or is separated by a chartered city or cities which do not contribute to the income
of the province.9

Contrary to the contention of the movants, the exemption above pertains only to the
requirement of territorial contiguity. It clearly states that the requirement of
territorial contiguity may be dispensed with in the case of a province comprising
two or more islands, or is separated by a chartered city or cities which do not
contribute to the income of the province.
Nowhere in paragraph (b) is it expressly stated or may it be implied that when a
province is composed of two or more islands, or when the territory of a province is
separated by a chartered city or cities, such province need not comply with the
land area requirement of at least 2,000 square kilometers or the requirement in
paragraph (a) (i) of Section 461of the Local Government Code.

Where the law is free from ambiguity, the court may not introduce exceptions or
conditions where none is provided from considerations of convenience, public
welfare, or for any laudable purpose;10 neither may it engraft into the law
qualifications not contemplated,11 nor construe its provisions by taking into
account questions of expediency, good faith, practical utility and other similar
reasons so as to relax non-compliance therewith.12 Where the law speaks in clear
and categorical language, there is no room for interpretation, but only for
application.13

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

The contention lacks merit.

Section 10, Article X of the Constitution states:

SEC. 10. No province, city, municipality, or barangay may be created, divided,

merged, abolished, or its boundary substantially altered, except in accordance with
the criteria established in the local government code and subject to approval by a
majority of the votes cast in a plebiscite in the political units directly
affected."14

As the law-making branch of the government, indeed, it was the Legislature that
imposed the criteria for the creation of a province as contained in Section 461 of
the Local Government Code. No law has yet been passed amending Section 461 of the
Local Government Code, so only the criteria stated therein are the bases for the
creation of a province. The Constitution clearly mandates that the criteria in the
Local Government Code must be followed in the creation of a province; hence, any
derogation of or deviation from the criteria prescribed in the Local Government
Code violates Section 10, Article X of the Constitution.

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

In Fari�as v. The Executive Secretary,15 the Court held:

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

It is equally well-established, however, that the courts, as guardians of the

Constitution, have the inherent authority to determine whether a statute enacted by
the legislature transcends the limit imposed by the fundamental law. And where the
acts of the other branches of government run afoul of the Constitution, it is the
judiciary�s solemn and sacred duty to nullify the same.

Citing League of Cities of the Philippines v. Commission on Elections,16 the

movants further contend that under the operative fact doctrine, the
constitutionality of R.A No. 9355, creating the Province of Dinagat Islands, should
be upheld.

The Court is not persuaded.

In League of Cities of the Philippines v. Commission on Elections, the Court held

that the 16 cityhood laws, whose validity were questioned therein, were
constitutional mainly because it found that the said cityhood laws merely carried
out the intent of R.A. No. 9009, now Section 450 of the Local Government Code, to
exempt therein respondents local government units (LGUs) from the ?100 million
income requirement, since the said LGUs had pending cityhood bills long before the
enactment of R.A. No. 9009. Each one of the 16 cityhood laws contained a provision
exempting the municipality covered from the ?100 million income requirement.

In this case, R.A. No. 9355 was declared unconstitutional because there was utter
failure to comply with either the population or territorial requirement for the
creation of a province under Section 461 of the Local Government Code.1avvphi1

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

Tan v. Comelec18 held:

x x x [T]he fact that such plebiscite had been held and a new province proclaimed
and its officials appointed, the case before Us cannot truly be viewed as already
moot and academic. Continuation of the existence of this newly proclaimed province,
which petitioners strongly profess to have been illegally born, deserves to be
inquired into by this Tribunal so that, if indeed, illegality attaches to its
creation, the commission of that error should not provide the very excuse for
perpetuation of such wrong. For this court to yield to the respondents� urging
that, as there has been fait accompli then this Court should passively accept and
accede to the prevailing situation, is an unacceptable suggestion. Dismissal of the
instant petition, as respondents so propose, is a proposition fraught with
mischief. Respondents� submission will create a dangerous precedent. Should this
Court decline now to perform its duty of interpreting and indicating what the law
is and should be, this might tempt again those who strut about in the corridors of
power to recklessly and with ulterior motives, create, merge, divide and/or alter
the boundaries of political subdivisions, either brazenly or stealthily, confident
that this Court will abstain from entertaining future challenges to their acts if
they manage to bring about a fait accompli.

WHEREFORE, in view of the foregoing, the Motions for Reconsideration of the

Decision dated February 10, 2010 are hereby DENIED for lack of merit.

SO ORDERED.

DIOSDADO M. PERALTA
Associate Justice

WE CONCUR:
REYNATO S. PUNO
Chief Justice

ANTONIO T. CARPIO
Associate Justice RENATO C. CORONA
Associate Justice
CONCHITA CARPIO MORALES
Associate Justice PRESBITERO J. VELASCO, JR.
Associate Justice
ANTONIO EDUARDO B. NACHURA
Associate Justice TERESITA J. LEONARDO-DE CASTRO
Associate Justice
ARTURO D. BRION
Associate Justice LUCAS P. BERSAMIN
Associate Justice
MARIANO C. DEL CASTILLO
Associate Justice ROBERTO A. ABAD
Associate Justice
MARTIN S. VILLARAMA, JR.
Associate Justice JOSE PORTUGAL PEREZ
Associate Justice
JOSE CATRAL MENDOZA
Associate Justice

C E R T I F I C A T I O N

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

REYNATO S. PUNO
Chief Justice

Footnotes

1 SEC. 7. Creation and conversion. � As a general rule, the creation of a local

government unit or its conversion from one level to another shall be based on
verifiable indicators of viability and projected capacity to provide services, to
wit:

(a) Income. � It must be sufficient, based on acceptable standards, to provide for

all essential government facilities and services and special functions commensurate
with the size of its population, as expected of the local government unit
concerned;

(b) Population. � It shall be determined as the total number of inhabitants within

the territorial jurisdiction of the local government unit concerned; and

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

Compliance with the foregoing indicators shall be attested to by the Department of

Finance (DOF), the National Statistics Office (NSO), and the Lands Management
Bureau (LMB) of the Department of Environment and Natural Resources (DENR).
SEC. 461. Requisites for Creation. - (a) A province may be created if it has an
average annual income, as certified by the Department of Finance, of not less than
Twenty million pesos (?20,000,000.00) based on 1991 constant prices and either of
the following requisites:

(i) a contiguous territory of at least two thousand (2,000) square kilometers, as

certified by the Lands Management Bureau; or

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

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

2 Id.

3 Annex "AA," rollo, p. 498. (Emphasis supplied.)

4 For comparison, Sec. 461 of the Local Government Code of 1991 and Art. 9 of the
Rules and Regulations Implementing the Local Government Code of 1991 are
reproduced:

The Local Government Code

SEC. 461. Requisites for Creation. - (a) A province may be created if it has an
average annual income, as certified by the Department of Finance, of not less than
Twenty million pesos (?20,000,000.00) based on 1991 constant prices and either of
the following requisites:

(i) a contiguous territory of at least two thousand (2,000) square kilometers, as

certified by the Lands Management Bureau; or

(ii) a population of not less than two hundred fifty thousand (250,000) inhabitants
as certified by the National Statistics Office: Provided, That, the creation
thereof shall not reduce the land area, population, and income of the original unit
or units at the time of said creation to less than the minimum requirements
prescribed herein.

(b) The territory need not be contiguous if it comprises two (2) or more islands or
is separated by a chartered city or cities which do not contribute to the income of
the province.

(c) The average annual income shall include the income accruing to the general
fund, exclusive of special funds, trust funds, transfers, and non-recurring income.

Rules and Regulations Implementing the Local Government Code of 1991

ART. 9. Provinces. � (a) Requisites for creation. � A province shall not be created
unless the following requisites on income and either population or land area are
present:

(1) Income � An average annual income of not less than Twenty Million Pesos (?
20,000,000.00) for the immediately preceding two (2) consecutive years based on
1991 constant prices, as certified by the DOF. The average annual income shall
include the income accruing to the general fund, exclusive of special funds,
special accounts, transfers, and non-recurring income; and
(2) Population or land area - Population which shall not be less than two hundred
fifty thousand (250,000) inhabitants, as certified by the National Statistics
Office; or land area which must be contiguous with an area of at least two thousand
(2,000) square kilometers, as certified by the LMB. The territory need not be
contiguous if it comprises two (2) or more islands, or is separated by a chartered
city or cities which do not contribute to the income of the province. The land area
requirement shall not apply where the proposed province is composed of one (1) or
more islands. The territorial jurisdiction of a province sought to be created shall
be properly identified by metes and bounds. (Emphasis supplied.)

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

6 Emphasis supplied.

7 Emphasis supplied.

8 Emphasis supplied.

9 Emphasis supplied.

10 University of the Philippines Board of Regents v. Auditor General, G.R. No. L-

19617, October 31, 1969, 30 SCRA 5, 17.

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

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

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

14 Emphasis supplied.

15 463 Phil. 179, 197 (2003).

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

17 Fari�as v. The Executive Secretary, supra note 15.

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

The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION

PEREZ, J.:

Every statute has in its favor the presumption of constitutionality. This

presumption is rooted in the doctrine of separation of powers which enjoins upon
the three coordinate departments of the Government a becoming courtesy for each
other's acts. The theory is that 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. This Court, however, may declare a law, or portions thereof,
unconstitutional, where a petitioner has shown a clear and unequivocal breach of
the Constitution, not merely a doubtful or argumentative one. In other words, the
grounds for nullity must be beyond reasonable doubt, for to doubt is to sustain.
The spirit of the foregoing pronouncements enunciated in Cawaling, Jr. v. Executive
Secretary1 animates this dissent to the denial of the motion for reconsideration of
the February 10, 2010 En Banc Decision handed down in the case at bench, declaring
as unconstitutional Republic Act No. 9355, as well the provision in Article 9(b) of
the Rules and Regulations Implementing the Local Government Code of 1991 which
states that, "The land area requirement shall not apply where the proposed province
is composed of one (1) or more islands."

The factual and procedural antecedents are not in dispute.

A group of islands composed of the municipalities of Basilisa, Cagdianao, Dinagat,

Libjo, Loreto, San Jose and Tubajon with an aggregate land area of 802.12 square
kilometers, the Dinagat Islands form part of the province of Surigao Del Norte
alongside the Mainland, Surigao City, Siargao Island and Bucas Grande. In support
of the house bill for the creation of the Dinagat Islands as a separate province,
it appears that a special census conducted by the province of Surigao Del Norte and
the National Statistics Office (NSO) District Census Coordinator in July 2003
yielded a population count of 371,576 inhabitants. With the certification from the
Bureau of Local Government Finance that the proposed province had an average annual
income of ?82,696,433.23, the house bill for the creation of the Province of
Dinagat Islands was passed by the Senate and House of Representatives on August 14,
2006 and August 28, 2006, respectively.

On October 2, 2006, President Gloria Macapagal-Arroyo approved and enacted said

house bill into law as Republic Act No. 9355, entitled, "An Act Creating the
Province of Dinagat Islands." The plebiscite conducted by the Commission on
Elections (COMELEC) on December 3, 2006 in the local government units directly
affected by the creation of the new province yielded 69,943 affirmative votes and
63,502 negative votes. Subsequent to the proclamation of said vote by the
Plebiscite Provincial Board of Canvassers on December 3, 2006, the President
appointed a new set of provincial officials who took their oath of office on
January 26, 2007. In the May 14, 2007 synchronized National and Local Elections,
the constituents of the new province elected a new set of provincial officers who
eventually assumed office on July 1, 2007.

Petitioners initially assailed the constitutionality of Republic Act No. 9355 in

the petition for certiorari and prohibition docketed before the Court as G.R. No.
175158. Undaunted by the dismissal of said petition on technical grounds and the
denial of their motion for reconsideration thereof, petitioners filed the petition
for certiorari to which the case at bench traces its provenance. Reiterating the
arguments in their previous petition, petitioners maintained that the law failed to
comply with either the land area and population requirements prescribed under the
Local Government Code of 1991. In addition to the invalidation of the law as
unconstitutional, petitioners prayed for the nullification of the appointment and
election of the provincial officers of Dinagat Islands as well as the return of its
municipalities and districts to the province of Surigao Del Norte.

On February 10, 2010, a decision was rendered declaring Republic Act No. 9355
unconstitutional for failure to comply with the land area and population
requirements under the Local Government Code, and giving short shrift to
respondents� reliance on Article 9(b) of the Rules and Regulations Implementing the
Local Government Code of 1991 (IRR) to the effect that the requirement of a
contiguous territory of at least 2,000 square kilometers does not apply when the
proposed province is composed of one or more islands. The decision invoked the case
of Tan v. COMELEC2 which declared that the term "territory" only refers to the mass
of land area and excludes the waters over which the local government unit exercises
control. Likewise brushing aside the result of the special census for lack of
certification from the NSO, the decision also ruled that the population requirement
was not complied with, based on the NSO 2000 Census of Population which pegged the
official population of Dinagat Islands at 106,951.

After a circumspect consideration of the arguments for and against the validity of
the creation of the Province of Dinagat Islands, I am convinced, with all due
respect, that a reconsideration of the decision is in order.

The creation of local government units is governed by Section 10, Article X of the
Constitution which provides that, "(n)o province, city, municipality, or barangay
may be created, divided, merged, abolished or its boundary substantially altered
except in accordance with the criteria established in the local government code and
subject to approval by a majority of the votes cast in a plebiscite in the
political units directly affected." Correlatively, Section 461 of the Local
Government Code prescribes the criteria for the creation of a province in the
following wise:

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 (?20,000,000.00) 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.

Considered the most important factor insofar as the creation of a new province is
concerned, the income requirement under the Local Government Code has been more
than four-fold complied with, as may be gleaned from the Bureau of Local Government
Finance Certification that, based on the 1991 constant prices, the average annual
income of the Province of Dinagat Islands is ?82,696,433.23. Despite its aggregate
land area of 802.12 square kilometers only, the new province has also measured up
to the territorial requirement since, being comprised of two or more islands, it is
exempted from the contiguous 2,000 square-kilometer land mass prescribed under
Section 461 (a)[i]. Although the exemption in paragraph (b) appears to extend only
to the requirement of contiguity, I am convinced by Mr. Justice Antonio Eduardo B.
Nachura�s opinion that, from the tenor of the same provision, the contiguity and
land area requirements cannot be considered separate and distinct from each other.
As eloquently stated in his dissent:

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 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 co-existent 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 contact by land. Thus, insofar as islands are
concerned, they are deemed contiguous although separated by wide spans of navigable
deep waters, with the exception of the high seas, because all lands separated by
water touch one another, in a sense, beneath the water. The provision, then, as
worded, only means that the exemption in paragraph (b) refers to both the
components of territory, that is, contiguity and land area, and not merely 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?

Compliance with the land area requirement by the Province of Dinagat Islands is
cast in even relief when gauged from the clear and unambiguous language of the IRR
which was formulated in accordance with Section 533 of the Local Government Code,
by the Oversight Committee chaired by the Executive Secretary and composed of
representatives from the Senate,3 the House of Representatives,4 the Cabinet5 and
the leagues of local government units.6 Partaking the nature of executive
construction and, for said reason, deserving of great weight and respect,7 Article
9 of the IRR distinctly provides as follows:

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 (?
20,000,000.00) 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 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.

Alongside declaring Republic Act No. 9355 as unconstitutional for non-compliance

with the land area requirement, however, the ponencia also declared the underscored
portion of the foregoing IRR provision null and void for going beyond the criteria
prescribed by Section 461 of the Local Government. Citing the Court�s November 18,
2008 ruling in League of Cities of the Philippines v. COMELEC,8 it held that "(t)he
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." In case of discrepancy between the basic law and the rules and regulations
implementing the same, the ponencia went on to state that, "the basic law prevails,
because the rules and regulations cannot go beyond the terms and provisions of the
basic law."

The League of Cities case concerned the constitutionality of sixteen cityhood laws,
each converting the municipalities covered into a city, for non-compliance with
Republic Act. No. 9009 which amended Section 450 of the Local Government Code by
increasing the income requirement from ?20,000,000.00 to ?100,000,000.00 for a
municipality to be converted into a component city. Initially declared
unconstitutional in the aforesaid November 18, 2008 Decision, the constitutionality
of the subject cityhood laws were eventually upheld in the December 21, 2009
Decision subsequently rendered in the case on the ground, among others, that the
Local Government Code, despite its being the ideal repository for the same, need
not be the only vessel of all the criteria for the creation of local government
units. Taking into consideration the circumstances under which Republic Act No.
9009 and said cityhood laws were enacted, the Court ruled as follows:

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. In fact, any interpretation that runs counter to the
legislative intent is unacceptable and invalid. 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.�

When viewed in the light of the legislative intent underlying Section 461 of the
Local Government Code, I respectfully submit that Article 9 of the IRR is not in
conflict with the criteria for the creation of provinces ensconced in said
provision of the basic law. Unlike Section 1979 of Batas Pambansa Blg. 337, its
counterpart provision in the predecessor of the present Local Government Code,
Section 461 does not give equal premium to the income, land area and population
requirements for the creation of new provinces. This is readily evident from the
fact that, after prescribing the ?20,000,000.00 income requirement, Section 461
simply mandates compliance with either the requirement of a contiguous territory of
2,000 square kilometers or a population of not less than 250,000. Already quoted in
Justice Nachura�s dissent to the ponencia, the following transcript of the
congressional deliberations on the house bill from which the present Local
Government Code originated is particularly enlightening regarding the legislative
intent for said new requirements, viz.:

HON. ALFELOR: Income is mandatory. We can even have this doubled because we
thought�

CHAIRMAN CUENCO: In other words, the primordial considerations 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 are 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 new investments from the private sector. This is now
the concern of their 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 200,000
thousand,� you will never be able to become a province because nobody wants to go
to that 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, 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 because the land areas that we are giving to our governors is so
wide that no one man could 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 because
it is 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."

In exempting provinces composed of one or more islands from both the contiguity and
land area requirements, Article 9 of the IRR cannot be considered inconsistent with
the criteria under Section 461 of the Local Government Code. Far from being
absolute regarding application of the requirement of "a contiguous territory of at
least 2,000 square kilometers as certified by the Land Management Bureau," Section
461 allows for said exemption by providing, under paragraph (b) thereof, that
"(t)he territory need not be contiguous if (the new province) comprises two or more
islands or is separated by a chartered city or cities which do not contribute to
the income of the province." For as long as there is compliance with the income
requirement, the legislative intent is, after all, to the effect that the land area
and population requirements may be overridden by the established economic viability
of the proposed province.

In the aforesaid December 21, 2009 Decision in the League of Cities case, the Court
sagely ruled that "(t)he legislative intent is not at all times accurately
reflected in the manner in which the resulting law is couched. Thus, applying a
verba legis or strictly literal interpretation of a statute may render it
meaningless and lead to inconvenience, an absurd situation or injustice. To obviate
this aberration, and bearing in mind the principle that the intent or the spirit of
the law is the law itself, resort should be to the rule that the spirit of the law
controls its letter." Indeed, the forum for examining the wisdom of the law, and
enacting remedial measures, is not this Court but the Legislature.10 Consequently,
courts will not follow the letter of the statute when to do so would depart from
the true intent of the legislature or would otherwise yield conclusions
inconsistent with the general purpose of the act.11

Without taking into consideration the aforesaid legislative intent, the ponencia
clearly resorted to a strict verba legis interpretation in invalidating the portion
of Article 9 of the IRR which states that, "The land area requirement shall not
apply where the proposed province is composed of one (1) or more islands." In
determining that the Province of Dinagat Islands failed to comply with the land
area requirement, it also relied heavily on the Court�s pronouncements in Tan v.
COMELEC12 where the principal issue was, however, the invalidity of the creation of
the province of Negros Del Norte on account of the fact that the plebiscite
therefor conducted did not include the parent province of Negros Oriental. Although
the collateral issue of compliance with the land area requirement was resolved
pursuant to Section 197 of Batas Pambansa Blg. 337 and not Section 461 of the
present Local Government Code, the ponencia further ruled that the requirements
under both laws are similar and that there is no reason for a change in the
definitions, usage or meaning of the terms "territory" and "contiguous" in said
laws.

As hereinbefore observed, however, Section 197 of Batas Pambansa Blg. 337, unlike
Section 461 of the Local Government Code of 1991, gave equal premium to the income,
land area and population requirements for the creation of new provinces. Even
prescinding from the current decrease in population and land area requirement as
well as the increase in the income requirement, it cannot, therefore, be validly
argued that the requisites for the creation of a province under both laws are
similar. Given the lesser importance accorded the land area and population under
Section 461 of the present Local Government Code, I find that the propriety of
applying the restrictive interpretation of the land area requirement in Tan v.
COMELEC to the creation of the Province of Dinagat Islands is not as cut and dried
as the ponencia considered it to be. More so, when it is borne in mind that, unlike
the one conducted for the proposed province of Negros Del Norte, the plebiscite
conducted for said new province unquestionably complied with the Constitutional
requirement of inclusion of "the political units directly affected."
In ordaining the enactment of a local government code, Section 3, Article X of the
Constitution envisioned one "which shall provide for a more responsive and
accountable local government structure instituted through a system of
decentralization." Paying attention to this principle, Section 2(a) of the Local
Government Code of 1991 provides as follows:

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. Towards 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.

To my mind, it was undoubtedly in the service of the foregoing principles and

policies that the house bill creating the Province of Dinagat Islands was passed by
Congress and enacted into law by the President. As an organic law, Republic Act No.
9355 also garnered the majority of the votes cast in the plebiscite conducted not
only in the municipalities constituting the newly created province but also the
parent province of Surigao Del Norte. During the May 14, 2007 synchronized National
and Local Elections, the constituents of the Province of Dinagat Islands have, in
fact, already elected their provincial officers who are about to complete their
first term of office. The foregoing considerations were unduly brushed aside by the
ponencia in one fell swoop when it invalidated Republic Act No. 9355 and the
exception embodied in Article 9 of the IRR with a strict and narrow interpretation
of Section 461 of the Local Government Code.

JOSE PORTUGAL PEREZ

Footnotes

1 G.R. No. 146342, October 26, 2001.

2 142 SCRA 727.

3 Three Senators appointed by the Senate President, to include the Chairman of the
Committee on Local Government.

4 The Congressmen appointed by the Speaker, to include the Chairman of the

Committee on Local Government.

5 Secretary of Interior and Local Government, Secretary of Finance, Secretary of

Budget and Management.

6 One representative each from the League of Provinces, League of Cities, League of
Municipalities and Liga ng mga Barangay.

7 Galarosa v. Valencia, 227 SCRA 728.

8 571 SCRA 263.

9 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 pesos, 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.

10 Pe�era v. COMELEC, G.R. No. 181613, November 25, 2009.

11 Mariano v. COMELEC, G.R. Nos. 118577 and 118627, March 7, 1995.

12 Supra.