MUNICIPALITY OF STA. FE,G.R. No. 140474 cralawPetitioner, Present: PUNO, C.J.

, Chairperson, versus -SANDOVAL-GUTIERREZ, CORONA, AZCUNA, and GARCIA, JJ. MUNICIPALITY OF ARITAO, Respondent. Promulgated: September 21, 2007 X -------------------------------------------------------------------------------------X

DECISION

AZCUNA, J.:

This is an appeal by petition for review on certiorari under Rule 45 of the Rules of Court of the September 30, 1999 Decision[1] of the Court of Appeals (CA) affirming in toto the August 27, 1992 Order[2] of the Regional Trial Court (RTC) of Bayombong, Nueva Vizcaya, Branch 28, which dismissed Civil Case No. 2821 for lack of jurisdiction.

On October

16,

1980, petitionerMunicipality of

Sta.

Fe,

in

the Province of Nueva Vizcaya, filed before the RTC of Bayombong, Nueva Vizcaya, Branch 28, Civil Case No. 2821 for the Determination of Boundary Dispute involving the barangays of Bantinan and Canabuan. As the parties failed to amicably settle during the pre-trial stage, trial on the merits ensued.

The trial was almost over, with petitioners rebuttal witness already under cross-examination, when the court, realizing its oversight under existing

law, ordered on December 9, 1988, the suspension of the proceedings and the referral of the case to the Sangguniang Panlalawigan of Nueva Vizcaya.[3] In turn, the Sanggunian concerned passed on the matter to its Committee on Legal Affairs, Ordinances and Resolutions, which

recommended adopting Resolution No. 64 dated September 14, 1979 of the former members of its Provincial Board.[4] Said resolution previously resolved to adjudicate the barangays of Bantinan and Canabuan as parts of respondents territorial jurisdiction and enjoin petitioner from exercising its governmental functions within the same. Subsequently, as per Resolution No. 357 dated November 13, 1989, the Sangguniang

Panlalawigan approved the Committees recommendation but endorsed the boundary dispute to the RTC for further proceedings and preservation of the status quopending finality of the case.

Back in the RTC, respondent moved to consider Resolution No. 64 as final and executory. In its Order dated February 12, 1991,[5] the trial court, however, resolved to deny the motion ruling that since there was no amicable settlement reached at the time the Provincial Board had exceeded its authority in issuing a decision favoring a party. The court held that, under the law in force, the purpose of such referral was only to afford the parties an opportunity to amicably settle with the intervention and assistance of the Provincial Board and that in case no such settlement is reached, the court proceedings shall be resumed.

Subsequently, respondent again filed a motion on June 23, 1992,[6] this time praying for the dismissal of the case for lack of jurisdiction. The ground relied upon was that under the prevailing law at the time of the filing of the motion, the power to try and decide municipal boundary disputes already belonged to theSangguniang Panlalawigan and no longer

with the trial court, primarily citing the doctrine laid down by this Court in Municipality of Sogod v. Rosal.[7]cralaw

On August 27, 1992, the trial court resolved to grant the motion, thus:cralaw A close study of the decision of the Honorable Supreme Court in the Municipality of Sogod case in relation to this case palpably shows that, contrary to the claim of respondent Municipality ofSta. Fe, through counsel, it involves boundary dispute as in this case. As to the applicable law on the question of which agency of the Government can take cognizance of this case or whether or not this Court should proceed in exercising jurisdiction over this case, the same [had] been squarely resolved by the [Honorable] Supreme Court in the Municipality of Sogod case in this wise: It is worthy to note, however, that up to this time, the controversy between these two Municipalities has not been settled. However, the dispute has already been overtaken by events, namely, the enactment of the 1987 Constitution and the New Local Government Code x x x which imposed new mandatory requirements and procedures on the fixing of boundaries between municipalities. The 1987 Constitution now mandates that []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.[] x x x Hence, any alteration or modification of the boundaries of the municipalities shall only be by a law to be enacted by Congress subject to the approval by a majority of the votes cast in a plebiscite in the barrios affected (Section 134, Local Government Code). Thus, under present laws, the function of the provincial board to fix the municipal boundaries are now strictly limited to the factual determination of the boundary lines between municipalities, to be specified by natural boundaries or by metes and bounds in accordance with laws creating said municipalities. In view of the above ruling, this Court can do no less but to declare that this case has been overtaken by events, namely, the enactment of the 1987 Constitution and the Local Government Code of 1991. The Constitution requires a plebiscite, whereas the Local Government Code of 1991 provides, as follows: Sec. 6. Authority to Create Local

Government Units. A local government unit may be created, divided, merged, abolished, or its boundaries substantially altered either by law enacted by Congress in the case of a province, city, municipality, or any other political subdivision, or by ordinance passed by the [s]angguniang [p]anlalawigan, or sangguniang panglungsod concerned in the case of a barangay located within its territorial jurisdiction, subject to such limitations and requirements prescribed in this Code.[8]

The motion for reconsideration of the aforesaid Order having been denied,[9] an appeal was elevated by petitioner to the CA. The CA, however, affirmed in toto the assailed Order, holding that: We are not unmindful of the rule that where a court has already obtained and is exercising jurisdiction over a controversy, its jurisdiction to proceed to the final determination of the case is not affected by new legislation placing jurisdiction over such proceedings in another tribunal or body. This rule, however, is not without exception. It is not applicable when the change in jurisdiction is curative in character. As far as boundary disputes are concerned, the 1987 Constitution is the latest will of the people, therefore, the same should be given retroactive effect on cases pending before courts after its ratification. It mandates that 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. On the other hand, the Local Government Code of 1991 provides that [a] local government unit may be created, divided, merged, abolished, or its boundaries substantially altered either by law enacted by Congress in the case of a province, city, municipality, or any other political subdivision, or by ordinance passed by the [s]angguniang [p]anlalawigan or [s]angguniang [p]anglungsod concerned in the case of a barangay located within its territorial jurisdiction, subject to such limitations and requirements prescribed in this Code (Book I, Title One, Chapter 2, Section 6, Local Government Code). Section 118, Title Nine, Book I of the same Code likewise provides:

SEC 118. Jurisdictional Responsibility for Settlement of Boundary Dispute. Boundary disputes between and among local government units shall, as much as possible, be settled amicably. To this end: xxx a.) Boundary disputes involving two (2) or more municipalities within the same province shall be referred for settlement to the sangguniang panlalawigan concerned; xxx Since the Local Government Code of 1991 is the latest will of the people expressed through Congress on how boundary disputes should be resolved, the same must prevail over previous ones. It must be emphasized that the laws on the creation of local government units as well as settling boundary disputes are political in character, hence, can be changed from time to time and the latest will of the people should always prevail. In the instant case, there is nothing wrong in holding that Regional Trial Courts no longer have jurisdiction over boundary disputes.[10]

Before this Court, petitioner submits that the CA erred when it affirmed the dismissal of the case for lack of jurisdiction by upholding the RTCs application of the doctrine enunciated in

the Municipality of Sogod,namely, that being political in character, this case has been overtaken by different laws which should now

prevail.Petitioner also claims that the CA erred in relying on the provisions of the 1987 Constitution and the Local Government Code (LGC) of 1991 on the creation, division, merger, abolition, and alteration of boundaries of political units instead of the specific provisions on the settlement of boundary disputes.[11]chanroblesvirtuallawlibrary

The petition fails.

As early as October 1, 1917, the procedure for the settlement of municipal boundary disputes was already set forth when Act No. 2711 or the Revised Administrative Code (RAC) took into effect.[12] At that time, Section 2167 of the law provided:

SEC. 2167. Municipal boundary disputes How settled. Disputes as to jurisdiction of municipal governments over places or barrios shall be decided by the provincial boards of the provinces in which such municipalities are situated, after an investigation at which the municipalities concerned shall be duly heard. From the decision of the provincial board appeal may be taken by the municipality aggrieved to the Secretary of the Interior, whose decision shall be final x x x.[13]

On June 17, 1970,[14] Republic Act (R.A.) No. 6128[15] was approved amending the afore-quoted section of the RAC, Sec. 1 thereof stated: SECTION 1. Section Two thousand one hundred sixty-seven of the Revised Administrative Code, as amended, is hereby further amended to read as follows: "SEC. 2167. Municipal Boundary Disputes. How Settled. Disputes as to jurisdiction of municipal governments over places, or barrios shall be heard and decided by the Court of First Instance of the Province where the municipalities concerned are situated x x x: Provided, That after joinder of issues, the Court shall suspend proceedings and shall refer the dispute to the Provincial Board x x x concerned for the purpose of affording the parties an opportunity to reach an amicable settlement with the intervention and assistance of the said Provincial Board x x x; Provided, further, That in case no amicable settlement is reached within sixty days from the date the dispute was referred to the Provincial Board x x x concerned, the court proceedings shall be resumed. The case shall be decided by the said Court of First Instance within one year from resumption of the court proceedings, and appeal may be taken from the said decision within the time and in the manner prescribed in Rule 41 or Rule 42, as the case may be, of the Rules of Court x x x

Subsequently, however, with the approval of Batas Pambansa (B.P.) Blg. 337 (otherwise known as the Local Government Code of 1983) on February 10, 1983,[16] Sec. 2167, as amended, was repealed.[17] In particular, Sec. 79 of the Code read:

SEC. 79. Municipal Boundary Disputes. Disputes as to the jurisdiction of municipal governments over areas or barangays shall be heard and decided by the sangguniang panlalawigan of the province where the municipalities concerned are situated x x x in case no settlement is reached within sixty days from the date the dispute was referred to thesangguniang panlalawigan concerned, said dispute shall be elevated to the Regional Trial Court of the province which first took cognizance of the dispute. The case shall be decided by the said court within one year from the start of proceedings and appeal may be taken from the decision within the time and in the manner prescribed by the Rules of Court.[18]

Almost a decade passed and R.A. No. 7160 or the LGC of 1991 was signed into law on October 10, 1991and took effect on January 1, 1992.[19] As the latest law governing jurisdiction over the settlement of boundary disputes, Sections 118 and 119 of the Code now mandate: SEC. 118. Jurisdictional Responsibility for Settlement of Boundary Dispute. Boundary disputes between and among local government units shall, as much as possible, be settled amicably. To this end: xxx (b) Boundary disputes involving two (2) or more municipalities within the same province shall be referred for settlement to the sangguniang panlalawigan concerned. xxx (e) In the event the sanggunian fails to effect an amicable settlement within sixty (60) days from the date the dispute was referred thereto, it shall issue a certification to that effect. Thereafter, the dispute shall be formally tried by the sanggunian concerned which shall decide the issue within sixty (60) days from the date of the certification referred to above. SEC. 119. Appeal. Within the time and manner prescribed by the Rules of Court, any party may elevate the decision of the sanggunian concerned to the proper Regional Trial Court having jurisdiction over the area in dispute. The Regional Trial Court shall decide the appeal within one (1) year from the filing

thereof. Pending final resolution of the disputed area prior to the dispute shall be maintained and continued for all legal purposes.[20]

This Court agrees with petitioners contention that the trial court had jurisdiction to take cognizance of the complaint when it was filed on October 16, 1980 since the prevailing law then was Section 2167 of the RAC, as amended by Sec. 1 of R.A. No. 6128, which granted the Court of First Instance (now RTC) the jurisdiction to hear and decide cases of municipal boundary disputes.The antecedents of the Municipality of

Sogod case reveal that it dealt with the trial courts dismissal of cases filed for lack of jurisdiction because at the time of the institution of the civil actions, the law in force was the old provision of Sec. 2167 of the RAC, which empowered the provincial boards, not the trial courts, to hear and resolve such cases.

The main point of inquiry, however, is whether the CA erred in affirming the trial courts dismissal of the instant case for lack of jurisdiction on the ground that at the time of the filing of the motion to dismiss the original jurisdiction to hear and decide, the case had been vested on

the Sangguniang Panlalawigan and no longer on the RTC.

The Court rules that the appellate court did not err. The difference in the factual setting notwithstanding,Municipality of Sogod still applies in the sense that similar thereto the pendency of the present case has also been overtaken by events the ratification of the 1987 Constitution and the enactment of the LGC of 1991.

As shown above, since the effectivity of R.A. No. 6128, the Sangguniang Panlalawigan has been the primary tribunal responsible in the amicable settlement of boundary disputes between or among two or more

municipalities located in the same province. With the LGC of 1991, however, a major change has been introduced that in the event

the Sanggunian fails to effect a settlement, it shall not only issue a certification

to that effect but must also formally hear and decide the case within the reglementary period. Rule III of the Rules and Regulations Implementing the LGC of 1991[21] outlines the procedure for the settlement of boundary disputes as follows: ART. 17. Procedures for Settling Boundary Disputes. - The following procedures shall govern the settlement of boundary disputes: (a.) Filing of petition The sanggunian concerned may initiate action by filing a petition, in the form of a resolution, with the sanggunian having jurisdiction over the dispute. (b.) Contents of petition The petition shall state the grounds, reasons or justifications therefore. (c.) Documents attached to petition The petition shall be accompanied by: (1) Duly authenticated copy of the law or statute creating the LGU or any other documents showing proof of creation of the LGU; (2) Provincial, city, municipal or barangay map, as the case may be, duly certified by the LMB; (3) Technical description of the boundaries of the LGUs concerned; (4) Written certification of the provincial, city, or municipal assessor, as the case may be, as to territorial jurisdiction over the disputed area according records in custody; (5) Written declarations or sworn statements of the people residing in the disputed area; and (6) Such other documents or information as may be required by thesanggunian hearing the dispute.

(d.) Answer of adverse party Upon receipt by the sanggunian concerned of the petition together with the required documents, the LGU or LGUs complained against shall be furnished copies thereof and shall be given fifteen (15) working days within which to file their answers. (e.) Hearing Within five (5) working days after receipt of the answer of the adverse party, the sanggunian shall hear the case and allow the parties concerned to present their respective evidences. (f.) Joint hearing When two or more sanggunians jointly hear a case, they may siten banc or designate their respective representatives. Where representatives are designated, there shall be an equal number of representatives from each sanggunian.They shall elect from among themselves a presiding officer and a secretary. In case of disagreement, selection shall be by drawing lot. (g.) Failure to settle In the event the sanggunian fails to amicably settle the dispute within sixty (60) days from the date such dispute was referred thereto, it shall issue a certification to that effect and copies thereof shall be furnished the parties concerned. (h.) Decision Within sixty (60) days from the date the certification was issued, the dispute shall be formally tried and decided by the sanggunian concerned. Copies of the decision shall, within fifteen (15) days from the promulgation thereof, be furnished the parties concerned, DILG, local assessor, Comelec, NSO, and other NGAs concerned. (i.) Appeal Within the time and manner prescribed by the Rules of Court, any party may elevate the decision of the sanggunian concerned to the proper Regional Trial Court having jurisdiction over the dispute by filing therewith the appropriate pleading, stating among others, the nature of the dispute, the decision of the sanggunian concerned and the reasons for appealing therefrom. The Regional Trial Court shall decide the case within one (1) year from the filing thereof. Decisions on boundary disputes promulgated jointly by two (2) or more sangguniang panlalawigan shall be heard by the Regional Trial Court of the province which first took cognizance of the dispute.

ART. 18. Maintenance of Status Quo. Pending final resolution of the dispute, the status of the affected area prior to the dispute shall be maintained and continued for all purposes. ART. 19. Official Custodian. The DILG shall be the official custodian of copies of all documents on boundary disputes of the LGUs. Notably, unlike R.A. No. 6128 and B.P. 337, the LGC of 1991 grants an expanded role on the Sangguniang Panlalawigan concerned in resolving cases of municipal boundary disputes. Aside from having the function of bringing the contending parties together and intervening or assisting in the amicable settlement of the case, the Sangguniang Panlalawigan is now specifically vested with original jurisdiction to actually hear and decide the dispute in accordance with the procedures laid down in the law and its implementing rules and regulations. This situation, in effect, reverts to the old rule under the RAC, prior to its amendment by R.A. No. 6128, under which the provincial boards were empowered to investigate, hear the parties and eventually decide the case on the basis thereof. On the other hand, under the LGC of 1991, the trial court loses its power to try, at the first instance, cases of municipal boundary disputes. Only in the exercise of its appellate jurisdiction can the proper RTC decide the case, on appeal, should any party aggrieved by the decision of the Sangguniang

Panlalawigan elevate the same.

Considering the foregoing, the RTC correctly dismissed the case for lack of jurisdiction. Under the rules, it was the responsibility of the court to dismiss an action whenever it appears that [it] has no jurisdiction over the subject matter.[22] Indeed, the RTC acted accordingly because at the time of the filing of the motion to dismiss its want of jurisdiction was evident. It was duty-bound to take judicial notice of the parameters of its jurisdiction as the choice of the proper forum was crucial for the decision of a court or tribunal without jurisdiction is a total nullity and may be struck down at

any

time

by

this

Court

as

it

would

never

become

final

and

executory.[23] Likewise, the standing rule is that dismissal of a case for lack of jurisdiction may be raised at any stage of the proceedings since jurisdiction is conferred by law and lack of it affects the very authority of the court to take cognizance of and to render judgment on the

action;[24]otherwise, the inevitable consequence would make the courts decision a lawless thing.[25] As correctly pointed out by the RTC: x x x It will be a futile act for the Court to rule on the case concerning a boundary dispute if its decision will not after all be followed by the people concerned because the decision is totally unacceptable to them. How then can the Court enforce its decision? x x x.[26]

Petitioner, however, contends that the provisions of the 1987 Constitution and the LGC of 1991 on the settlement of municipal boundary disputes should be applied prospectively.The Court is not unmindful of the rule that where a court has already obtained and is exercising jurisdiction over a controversy, its jurisdiction to proceed to the final determination of the case is not affected by new legislation placing jurisdiction over such proceedings in another tribunal.[27] An exception to this rule, however, lies where the statute either expressly provides or is construed to the effect that it is intended to operate on actions pending before its enactment.[28] Hence, this Court has held that a law may be given retroactive effect if it so provided expressly or if retroactivity is necessarily implied therefrom and no vested right or obligation of contract is impaired and it does not deprive a person of property without due process of law.[29]

It is readily apparent from the provisions of the 1987 Constitution and the LGC of 1991 that their new provisions and requirements regarding changes

in the constitution of political units are intended to apply to all existing political subsidiaries immediately, i.e., including those with pending cases filed under the previous regime, since the overarching consideration of these new provisions is the need to empower the local government units without further delay.

Furthermore, the RTC can still review the decision of the Sanguniang Panlalawigan under the new set-up, in the exercise of its appellate jurisdiction, so no substantial prejudice is caused by allowing retroactivity.

The Court, therefore, sees no error, much less grave abuse of discretion, on the part of the CA in affirming the trial courts dismissal of petitioners complaint.

WHEREFORE, the petition is DENIED for lack of merit.

SULTAN ALIMBUSAR P. LIMBONA, petitioner, vs. CONTE MANGELIN, SALIC ALI, SALINDATO ALI, PILIMPINAS CONDING, ACMAD TOMAWIS, GERRY TOMAWIS, JESUS ORTIZ, ANTONIO DELA FUENTE, DIEGO PALOMARES, JR., RAUL DAGALANGIT, and BIMBO SINSUAT, respondents. Ambrosio Padilla, Mempin & Reyes Law Offices for petitioner petitioner. Makabangkit B. Lanto for respondents.

SARMIENTO, J.: The acts of the Sangguniang Pampook of Region XII are assailed in this petition. The antecedent facts are as follows: 1. On September 24, 1986, petitioner Sultan Alimbusar Limbona was appointed as a member of the Sangguniang Pampook, Regional Autonomous Government, Region XII, representing Lanao del Sur. 2. On March 12, 1987 petitioner was elected Speaker of the Regional Legislative Assembly or Batasang Pampook of Central Mindanao (Assembly for brevity). 3. Said Assembly is composed of eighteen (18) members. Two of said members, respondents Acmad Tomawis and Pakil Dagalangit, filed on March 23, 1987 with the Commission on Elections their respective certificates of candidacy in the May 11, 1987 congressional elections for the district of Lanao del Sur but they later withdrew from the aforesaid election and thereafter resumed again their positions as members of the Assembly. 4. On October 21, 1987 Congressman Datu Guimid Matalam, Chairman of the Committee on Muslim Affairs of the House of Representatives, invited Mr. Xavier Razul, Pampook Speaker of Region XI, Zamboanga City and the petitioner in his capacity as Speaker of the Assembly, Region XII, in a letter which reads:

The Committee on Muslim Affairs well undertake consultations and dialogues with local government officials, civic, religious organizations and traditional leaders on the recent and present political developments and other issues affecting Regions IX and XII. The result of the conference, consultations and dialogues would hopefully chart the autonomous governments of the two regions as envisioned and may prod the President to constitute immediately the Regional Consultative Commission as mandated by the Commission. You are requested to invite some members of the Pampook Assembly of your respective assembly on November 1 to 15, 1987, with venue at the Congress of the Philippines. Your presence, unstinted support and cooperation is (sic) indispensable. 5. Consistent with the said invitation, petitioner sent a telegram to Acting Secretary Johnny Alimbuyao of the Assembly to wire all Assemblymen that there shall be no session in November as "our presence in the house committee hearing of Congress take (sic) precedence over any pending business in batasang pampook ... ." 6. In compliance with the aforesaid instruction of the petitioner, Acting Secretary Alimbuyao sent to the members of the Assembly the following telegram: TRANSMITTING FOR YOUR INFORMATION AND GUIDANCE TELEGRAM RECEIVED FROM SPEAKER LIMBONA QUOTE CONGRESSMAN JIMMY MATALAM CHAIRMAN OF THE HOUSE COMMITTEE ON MUSLIM AFFAIRS REQUESTED ME TO ASSIST SAID COMMITTEE IN THE DISCUSSION OF THE PROPOSED AUTONOMY ORGANIC NOV. 1ST TO 15. HENCE WERE ALL ASSEMBLYMEN THAT THERE SHALL BE NO SESSION IN NOVEMBER AS OUR PRESENCE IN THE HOUSE COMMITTEE HEARING OF CONGRESS TAKE PRECEDENCE OVER ANY

PENDING BUSINESS IN BATASANG PAMPOOK OF MATALAM FOLLOWS UNQUOTE REGARDS. 7. On November 2, 1987, the Assembly held session in defiance of petitioner's advice, with the following assemblymen present: 1. Sali, Salic 2. Conding, Pilipinas (sic) 3. Dagalangit, Rakil 4. Dela Fuente, Antonio 5. Mangelen, Conte 6. Ortiz, Jesus 7. Palomares, Diego 8. Sinsuat, Bimbo 9. Tomawis, Acmad 10. Tomawis, Jerry After declaring the presence of a quorum, the Speaker ProTempore was authorized to preside in the session. On Motion to declare the seat of the Speaker vacant, all Assemblymen in attendance voted in the affirmative, hence, the chair declared said seat of the Speaker vacant. 8. On November 5, 1987, the session of the Assembly resumed with the following Assemblymen present: 1. Mangelen Conte-Presiding Officer 2. Ali Salic 3. Ali Salindatu 4. Aratuc, Malik 5. Cajelo, Rene

6. Conding, Pilipinas (sic) 7. Dagalangit, Rakil 8. Dela Fuente, Antonio 9. Ortiz, Jesus 10 Palomares, Diego 11. Quijano, Jesus 12. Sinsuat, Bimbo 13. Tomawis, Acmad 14. Tomawis, Jerry An excerpt from the debates and proceeding of said session reads: HON. DAGALANGIT: Mr. Speaker, Honorable Members of the House, with the presence of our colleagues who have come to attend the session today, I move to call the names of the new comers in order for them to cast their votes on the previous motion to declare the position of the Speaker vacant. But before doing so, I move also that the designation of the Speaker Pro Tempore as the Presiding Officer and Mr. Johnny Evangelists as Acting Secretary in the session last November 2, 1987 be reconfirmed in today's session. HON. SALIC ALI: I second the motions. PRESIDING OFFICER: Any comment or objections on the two motions presented? Me chair hears none and the said motions are approved. ...
Twelve (12) members voted in favor of the motion to declare the seat of the Speaker 1 vacant; one abstained and none voted against.

Accordingly, the petitioner prays for judgment as follows: WHEREFORE, petitioner respectfully prays that-

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

Pending further proceedings, this Court, on January 19, 1988, received a resolution filed by the Sangguniang Pampook, "EXPECTING ALIMBUSAR P. LIMBONA FROM MEMBERSHIP OF THE SANGGUNIANG PAMPOOK AUTONOMOUS REGION XII," 3 on the grounds, among other things, that the petitioner "had caused to be prepared and signed by him paying [sic] the salaries and emoluments of Odin Abdula, who was considered resigned after filing his Certificate of Candidacy for Congressmen for the First District of Maguindanao in the last May 11, elections. . . and nothing in the record of the Assembly will show that any request for reinstatement by Abdula was ever made . . ." 4 and that "such action of Mr. Lim bona in paying Abdula his salaries and emoluments without authority from the Assembly . . . constituted a usurpation of the power of the Assembly," 5 that the petitioner "had recently caused withdrawal of so much amount of cash from the Assembly resulting to the non-payment of the salaries and emoluments of some Assembly [sic]," 6 and that he had "filed a case before the Supreme Court against some members of the Assembly on question which should have been resolved within the confines of the Assembly," 7 for which the respondents now submit that the petition had become "moot and academic". 8 The first question, evidently, is whether or not the expulsion of the petitioner (pending litigation) has made the case moot and academic.

We do not agree that the case has been rendered moot and academic by reason simply of the expulsion resolution so issued. For, if the petitioner's expulsion was done purposely to make this petition moot and academic, and to preempt the Court, it will not make it academic. On the ground of the immutable principle of due process alone, we hold that the expulsion in question is of no force and effect. In the first place, there is no showing that the Sanggunian had conducted an investigation, and whether or not the petitioner had been heard in his defense, assuming that there was an investigation, or otherwise given the opportunity to do so. On the other hand, what appears in the records is an admission by the Assembly (at least, the respondents) that "since November, 1987 up to this writing, the petitioner has not set foot at the Sangguniang Pampook." 9 "To be sure, the private respondents aver that "[t]he Assemblymen, in a conciliatory gesture, wanted him to come to Cotabato City," 10 but that was "so that their differences could be threshed out and settled." 11 Certainly, that avowed wanting or desire to thresh out and settle, no matter how conciliatory it may be cannot be a substitute for the notice and hearing contemplated by law. While we have held that due process, as the term is known in administrative law, does not absolutely require notice and that a party need only be given the opportunity to be heard, 12 it does not appear herein that the petitioner had, to begin with, been made aware that he had in fact stood charged of graft and corruption before his collegues. It cannot be said therefore that he was accorded any opportunity to rebut their accusations. As it stands, then, the charges now levelled amount to mere accusations that cannot warrant expulsion. In the second place, (the resolution) appears strongly to be a bare act of vendetta by the other Assemblymen against the petitioner arising from what the former perceive to be abduracy on the part of the latter. Indeed, it (the resolution) speaks of "a case [having been filed] [by the petitioner] before the Supreme Court . . . on question which should have been resolved within the confines of the Assemblyman act which some members claimed unnecessarily and unduly assails their integrity and character as representative of the people" 13 an act that cannot possibly justify expulsion. Access to judicial remedies is guaranteed by the Constitution, 14 and, unless the recourse amounts to malicious prosecution, no one may be punished for seeking redress in the courts. We therefore order reinstatement, with the caution that should the past acts of the petitioner indeed warrant his removal, the Assembly is enjoined, should it

still be so minded, to commence proper proceedings therefor in line with the most elementary requirements of due process. And while it is within the discretion of the members of the Sanggunian to punish their erring colleagues, their acts are nonetheless subject to the moderating band of this Court in the event that such discretion is exercised with grave abuse. It is, to be sure, said that precisely because the Sangguniang Pampook(s) are "autonomous," the courts may not rightfully intervene in their affairs, much less strike down their acts. We come, therefore, to the second issue: Are the so-called autonomous governments of Mindanao, as they are now constituted, subject to the jurisdiction of the national courts? In other words, what is the extent of self-government given to the two autonomous governments of Region IX and XII? The autonomous governments of Mindanao were organized in Regions IX and XII by Presidential Decree No. 161815 promulgated on July 25, 1979. Among other things, the Decree established "internal autonomy" 16 in the two regions "[w]ithin the framework of the national sovereignty and territorial integrity of the Republic of the Philippines and its Constitution," 17 with legislative and executive machinery to exercise the powers and responsibilities 18specified therein. It requires the autonomous regional governments to "undertake all internal administrative matters for the respective regions," 19 except to "act on matters which are within the jurisdiction and competence of the National Government," 20 "which include, but are not limited to, the following: (1) National defense and security; (2) Foreign relations; (3) Foreign trade; (4) Currency, monetary affairs, foreign exchange, banking and quasi-banking, and external borrowing, (5) Disposition, exploration, development, exploitation or utilization of all natural resources; (6) Air and sea transport (7) Postal matters and telecommunications;

(8) Customs and quarantine; (9) Immigration and deportation; (10) Citizenship and naturalization; (11) National economic, social and educational planning; and
(12) General auditing.
21

In relation to the central government, it provides that "[t]he President shall have the power of general supervision and control over the Autonomous Regions ..." 22 Now, autonomy is either decentralization of administration or decentralization of power. There is decentralization of administration when the central government delegates administrative powers to political subdivisions in order to broaden the base of government power and in the process to make local governments "more responsive and accountable," 23 "and ensure their fullest development as self-reliant communities and make them more effective partners in the pursuit of national development and social progress." 24 At the same time, it relieves the central government of the burden of managing local affairs and enables it to concentrate on national concerns. The President exercises "general supervision" 25 over them, but only to "ensure that local affairs are administered according to law." 26 He has no control over their acts in the sense that he can substitute their judgments with his own. 27 Decentralization of power, on the other hand, involves an abdication of political power in the favor of local governments units declare to be autonomous . In that case, the autonomous government is free to chart its own destiny and shape its future with minimum intervention from central authorities. According to a constitutional author, decentralization of power amounts to "self-immolation," since in that event, the autonomous government becomes accountable not to the central authorities but to its constituency. 28 But the question of whether or not the grant of autonomy Muslim Mindanao under the 1987 Constitution involves, truly, an effort to decentralize power rather than mere administration is a question foreign to this petition, since what is involved herein is a local government unit constituted prior to the ratification of the present Constitution. Hence, the Court will not resolve that controversy now, in this case, since no controversy in fact exists. We will resolve it at the proper time and in the proper case.

Under the 1987 Constitution, local government units enjoy autonomy in these two senses, thus:
Section 1. The territorial and political subdivisions of the Republic of the Philippines are the provinces, cities, municipalities, and barangays. Here shall be autonomous regions in 29 Muslim Mindanao ,and the Cordilleras as hereinafter provided. Sec. 2. The territorial and political subdivisions shall enjoy local autonomy.
30

xxx xxx xxx

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

An autonomous government that enjoys autonomy of the latter category [CONST. (1987), art. X, sec. 15.] is subject alone to the decree of the organic act creating it and accepted principles on the effects and limits of "autonomy." On the other hand, an autonomous government of the former class is, as we noted, under the supervision of the national government acting through the President (and the Department of Local Government).32 If the Sangguniang Pampook (of Region XII), then, is autonomous in the latter sense, its acts are, debatably beyond the domain of this Court in perhaps the same way that the internal acts, say, of the Congress of the Philippines are beyond our jurisdiction. But if it is autonomous in the former category only, it comes unarguably under our jurisdiction. An examination of the very Presidential Decree creating the autonomous governments of Mindanao persuades us that they were never meant to exercise autonomy in the second sense, that is, in which the central government commits an act of self-immolation. Presidential Decree No. 1618, in the first place, mandates that "[t]he President shall have the power of general supervision and control over Autonomous Regions." 33 In the second place, the Sangguniang Pampook, their legislative arm, is made to discharge chiefly administrative services, thus: SEC. 7. Powers of the Sangguniang Pampook. The Sangguniang Pampook shall exercise local legislative powers over regional affairs within the framework of national development plans, policies and goals, in the following areas: (1) Organization of regional administrative system;

(2) Economic, social and cultural development of the Autonomous Region; (3) Agricultural, commercial and industrial programs for the Autonomous Region; (4) Infrastructure development for the Autonomous Region; (5) Urban and rural planning for the Autonomous Region; (6) Taxation and other revenue-raising measures as provided for in this Decree; (7) Maintenance, operation and administration of schools established by the Autonomous Region; (8) Establishment, operation and maintenance of health, welfare and other social services, programs and facilities; (9) Preservation and development of customs, traditions, languages and culture indigenous to the Autonomous Region; and (10) Such other matters as may be authorized by law,including the enactment of such measures as may be necessary for the promotion of the general welfare of the people in the Autonomous Region. The President shall exercise such powers as may be necessary to assure that enactment and acts of the Sangguniang Pampook and the Lupong Tagapagpaganap ng Pook are in compliance with this Decree, national legislation, policies, plans and programs.
The Sangguniang Pampook shall maintain liaison with the Batasang Pambansa.
34

Hence, we assume jurisdiction. And if we can make an inquiry in the validity of the expulsion in question, with more reason can we review the petitioner's removal as Speaker. Briefly, the petitioner assails the legality of his ouster as Speaker on the grounds that: (1) the Sanggunian, in convening on November 2 and 5, 1987 (for the sole purpose of declaring the office of the Speaker vacant), did so in violation of the Rules of the Sangguniang Pampook since the Assembly was

then on recess; and (2) assuming that it was valid, his ouster was ineffective nevertheless for lack of quorum. Upon the facts presented, we hold that the November 2 and 5, 1987 sessions were invalid. It is true that under Section 31 of the Region XII Sanggunian Rules, "[s]essions shall not be suspended or adjourned except by direction of the Sangguniang Pampook," 35 but it provides likewise that "the Speaker may, on [sic] his discretion, declare a recess of "short intervals." 36 Of course, there is disagreement between the protagonists as to whether or not the recess called by the petitioner effective November 1 through 15, 1987 is the "recess of short intervals" referred to; the petitioner says that it is while the respondents insist that, to all intents and purposes, it was an adjournment and that "recess" as used by their Rules only refers to "a recess when arguments get heated up so that protagonists in a debate can talk things out informally and obviate dissenssion [sic] and disunity. 37 The Court agrees with the respondents on this regard, since clearly, the Rules speak of "short intervals." Secondly, the Court likewise agrees that the Speaker could not have validly called a recess since the Assembly had yet to convene on November 1, the date session opens under the same Rules. 38 Hence, there can be no recess to speak of that could possibly interrupt any session. But while this opinion is in accord with the respondents' own, we still invalidate the twin sessions in question, since at the time the petitioner called the "recess," it was not a settled matter whether or not he could. do so. In the second place, the invitation tendered by the Committee on Muslim Affairs of the House of Representatives provided a plausible reason for the intermission sought. Thirdly, assuming that a valid recess could not be called, it does not appear that the respondents called his attention to this mistake. What appears is that instead, they opened the sessions themselves behind his back in an apparent act of mutiny. Under the circumstances, we find equity on his side. For this reason, we uphold the "recess" called on the ground of good faith. It does not appear to us, moreover, that the petitioner had resorted to the aforesaid "recess" in order to forestall the Assembly from bringing about his ouster. This is not apparent from the pleadings before us. We are convinced that the invitation was what precipitated it. In holding that the "recess" in question is valid, we are not to be taken as establishing a precedent, since, as we said, a recess can not be validly declared without a session having been first opened. In upholding the petitioner herein, we are not giving him a carte blanche to order recesses in the future in violation of the Rules, or otherwise to prevent the lawful meetings thereof.

Neither are we, by this disposition, discouraging the Sanggunian from reorganizing itself pursuant to its lawful prerogatives. Certainly, it can do so at the proper time. In the event that be petitioner should initiate obstructive moves, the Court is certain that it is armed with enough coercive remedies to thwart them. 39 In view hereof, we find no need in dwelling on the issue of quorum. WHEREFORE, premises considered, the petition is GRANTED. The Sangguniang Pampook, Region XII, is ENJOINED to (1) REINSTATE the petitioner as Member, Sangguniang Pampook, Region XII; and (2) REINSTATE him as Speaker thereof. No costs. SO ORDERED.

JOSE MONDANO, petitioner, vs. FERNANDO SILVOSA, Provincial Governor of Surigao, JOSE ARREZA and OLIMPIO EPIS, Members of the Provincial Board, respondents. D. Avila and C. H. Lozada for petitioner. Olimpio R. Epis in his own behalf and for his co-respondents. PADILLA, J.: The petitioner is the duly elected and qualified mayor of the municipality of Mainit, province of Surigao. On 27 February 1954 Consolacion Vda. de Mosende filed a sworn complaint with the Presidential Complaints and Action Committee accusing him of (1) rape committed on her daughter Caridad Mosende; and (2) concubinage for cohabiting with her daughter in a place other than the conjugal dwelling. On 6 March the Assistant Executive Secretary indorsed the complaint to the respondent provincial governor for immediate investigation, appropriate action and report. On 10 April the petitioner appeared before the provincial governor in obedience to his summons and was served with a copy of the complaint filed by the provincial governor with provincial board. On the same day, the provincial governor issued Administrative Order No. 8 suspending the petitioner from office. Thereafter, the Provincial Board proceeded to hear the charges preferred against the petitioner over his objection. The petitioner prays for a writ of prohibition with preliminary injunction to enjoin the respondents from further proceeding with the hearing of the administrative case against him and for a declaration that the order of suspension issued by the respondent provincial governor is illegal and without legal effect. On 4 May 1954 the writ of preliminary injunction prayed for was issued after filing and approval of a bond for P500. The answer of the respondents admits the facts alleged in the petition except those that are inferences and conclusions of law and invokes the provisions of section 79 (c)of the Revised Administrative Code which clothes the department head with "direct control, direction, and supervision over all bureaus and offices under his jurisdiction . . ." and to that end "may order the investigation of any act or conduct of any person in the service of any bureau or office under his Department and in connection therewith may appoint a committee or designate an official or person who shall conduct such

investigations; . . ."and the rule in the case of Villena vs. Secretary of Interior, 67 Phil. 452, which upheld "the power of the Secretary of Interior to conduct at its own initiative investigation of charges against local elective municipal officials and to suspend them preventively," on the board proposition "that under the presidential type of government which we have adopted and considering the departmental organization established and continued in force by paragraph 1, section 11, Article VII, of our Constitution, all executive and administrative organizations are adjuncts of the Executive Departments, the heads of the various executive departments are assistants and agents of the Chief Executive." The executive departments of the Government of the Philippines created and organized before the approval of the Constitution continued to exist as "authorized by law until the Congress shall provide otherwise."1 Section 10, paragraph 1, Article VII, of the Constitution provides: "The President shall have control of all the executive departments, bureaus, or offices, exercise general supervision over all local governments as may be provided by law, and take care that the laws be faithfully executed." Under this constitutional provision the President has been invested with the power of control of all the executive departments, bureaus, or offices, but not of all local governments over which he has been granted only the power of general supervision as may be provided by law. The Department head as agent of the President has direct control and supervision over all bureaus and offices under his jurisdiction as provided for in section 79 (c) of the Revised Administrative Code, but he does not have the same control of local governments as that exercised by him over bureaus and offices under his jurisdiction. Likewise, his authority to order the investigation of any act or conduct of any person in the service of any bureau or office under his department is confined to bureaus or offices under his jurisdiction and does not extend to local governments over which, as already stated, the President exercises only general supervision as may be provided by law. If the provisions of section 79 (c) of the Revised Administrative Code are to be construed as conferring upon the corresponding department head direct control, direction, and supervision over all local governments and that for the reason he may order the investigation of an official of a local government for malfeasance in office, such interpretation would be contrary to the provisions of paragraph 1, section 10, Article VII, of the Constitution. If "general supervision over all local governments" is to be construedas the same power granted to the Department Head in section 79 (c) of the Revised Administrative Code, then there would no longer be a distinction or difference between the power of control and that of supervision. In administrative law supervision means overseeing or the power or authority of an officer to see

that subordinate officers perform their duties. If the latter fail or neglect to fulfill them the former may take such action or step as prescribed by law to make them perform their duties. Control, on the other hand, means the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter. Such is the import of the provisions of section 79 (c) of the Revised Administrative Code and 37 of Act No. 4007. The Congress has expressly and specifically lodged the provincial supervision over municipal officials in the provincial governor who is authorized to "receive and investigate complaints made under oath against municipal officers for neglect of duty, oppression, corruption or other form of maladministration of office, and conviction by final judgment of any crime involving moral turpitude."2 And if the charges are serious, "he shall submit written charges touching the matter to the provincial board, furnishing a copy of such charges to the accused either personally or by registered mail, and he may in such case suspend the officer (not being the municipal treasurer) pending action by the board, if in his opinion the charge be one affecting the official integrity of the officer in question." 3 Section 86 of the Revised Administrative Code adds nothing to the power of supervision to be exercised by the Department Head over the administration of . . . municipalities . . .. If it be construed that it does and such additional power is the same authority as that vested in the Department Head by section 79 (c) of the Revised Administrative Code, then such additional power must be deemed to have been abrogated by section 10 (1), Article VII, of the Constitution. In Lacson vs. Roque, 49 Off. Gaz. 93, this Court held that the power of the President to remove officials from office as provided for in section 64 (b) of the Revised Administrative Code must be done "conformably to law;" and only for disloyalty to the Republic of the Philippines he "may at any time remove a person from any position of trust or authority under the Government of the (Philippine Islands) Philippines." Again, this power of removal must be exercised conformably to law. In the indorsement to the provincial governor the Assistant Executive Secretary requested immediate investigation, appropriate action and report on the complaint indorsed to him, and called his attention to section 2193 of the Revised Administrative Code which provides for the institution of judicial proceedings by the provincial fiscal upon direction of the provincial governor. If the indorsement of the Assistant Executive Secretary be taken as a designation of the provincial governor to investigate the petitioner, then he would only be acting as agent of the Executive, but the investigation to be

conducted by him would not be that which is provided for in sections 2188, 2189 and 2190 of the Revised Administrative Code. The charges preferred against the respondent are not malfeasances or any of those enumerated or specified in section 2188 of the Revised Administrative Code, because rape and concubinage have nothing to do with the performance of his duties as mayor nor do they constitute or involve" neglect of duty, oppression, corruption or any other form of maladministration of office." True, they may involve moral turpitude, but before the provincial governor and board may act and proceed in accordance with the provisions of the Revised Administrative Code referred to, a conviction by final judgment must precede the filing by the provincial governor of charges and trial by the provincial board. Even the provincial fiscal cannot file an information for rape without a sworn complaint of the offended party who is 28 years of age and the crime of concubinage cannot be prosecuted but upon sworn complaint of the offended spouse.4 The charges preferred against the petitioner, municipal mayor of Mainit, province of Surigao, not being those or any of those specified in section 2188 of the Revised Administrative Code, the investigation of such charges by the provincial board is unauthorized and illegal. The suspension of the petitioner as mayor of the municipality of Mainit is, consequently, unlawful and without authority of law. The writ of prohibition prayed for is granted, without pronouncement as to costs.

RUPERTO TAULE, petitioner, vs. SECRETARY LUIS T. SANTOS and GOVERNOR LEANDRO VERCELES, respondents. Balgos & Perez and Bugaring, Tugonon & Associates Law Offices for petitioner. Juan G. Atencia for private respondent.

GANCAYCO, J.:p The extent of authority of the Secretary of Local Government over the katipunan ng mga barangay or the barangay councils is brought to the fore in this case. On June 18,1989, the Federation of Associations of Barangay Councils (FABC) of Catanduanes, composed of eleven (11) members, in their capacities as Presidents of the Association of Barangay Councils in their respective municipalities, convened in Virac, Catanduanes with six members in attendance for the purpose of holding the election of its officers. Present were petitioner Ruperto Taule of San Miguel, Allan Aquino of Viga, Vicente Avila of Virac, Fidel Jacob of Panganiban, Leo Sales of Caramoran and Manuel Torres of Baras. The Board of Election Supervisors/Consultants was composed of Provincial Government Operation Officer (PGOO) Alberto P. Molina, Jr. as Chairman with Provincial Treasurer Luis A. Manlapaz, Jr. and Provincial Election Supervisor Arnold Soquerata as members. When the group decided to hold the election despite the absence of five (5) of its members, the Provincial Treasurer and the Provincial Election Supervisor walked out. The election nevertheless proceeded with PGOO Alberto P. Molina, Jr. as presiding officer. Chosen as members of the Board of Directors were Taule, Aquino, Avila, Jacob and Sales. Thereafter, the following were elected officers of the FABC: President Ruperto Taule

Vice-President Allan Aquino Secretary Vicente Avila Treasurer Fidel Jacob

Auditor Leo Sales
1

On June 19, 1989, respondent Leandro I. Verceles, Governor of Catanduanes, sent a letter to respondent Luis T. Santos, the Secretary of Local Government,* protesting the election of the officers of the FABC and seeking its nullification in view of several flagrant irregularities in the manner it was conducted. 2 In compliance with the order of respondent Secretary, petitioner Ruperto Taule as President of the FABC, filed his comment on the letter-protest of respondent Governor denying the alleged irregularities and denouncing said respondent Governor for meddling or intervening in the election of FABC officers which is a purely non-partisan affair and at the same time requesting for his appointment as a member of the Sangguniang Panlalawigan of the province being the duly elected President of the FABC in Catanduanes. 3 On August 4, 1989, respondent Secretary issued a resolution nullifying the election of the officers of the FABC in Catanduanes held on June 18, 1989 and ordering a new one to be conducted as early as possible to be presided by the Regional Director of Region V of the Department of Local Government. 4 Petitioner filed a motion for reconsideration of the resolution of August 4, 1989 but it was denied by respondent Secretary in his resolution of September 5, 1989. 5 In the petition for certiorari before Us, petitioner seeks the reversal of the resolutions of respondent Secretary dated August 4, 1989 and September 5, 1989 for being null and void. Petitioner raises the following issues: 1) Whether or not the respondent Secretary has jurisdiction to entertain an election protest involving the election of the officers of the Federation of Association of Barangay Councils;

2) Whether or not the respondent Governor has the legal personality to file an election protest; 3) Assuming that the respondent Secretary has jurisdiction over the election protest, whether or not he committed grave abuse of discretion amounting to lack of jurisdiction in nullifying the election; The Katipunan ng mga Barangay is the organization of all sangguniang barangays in the following levels: in municipalities to be known as katipunang bayan; in cities, katipunang panlungsod; in provinces, katipunang panlalawigan; in regions, katipunang pampook; and on the national level, katipunan ng mga barangay. 6 The Local Government Code provides for the manner in which the katipunan ng mga barangay at all levels shall be organized: Sec. 110. Organization. (1) The katipunan at all levels shall be organized in the following manner: (a) The katipunan in each level shall elect a board of directors and a set of officers. The president of each level shall represent the katipunan concerned in the next higher level of organization. (b) The katipunan ng mga barangay shall be composed of the katipunang pampook, which shall in turn be composed of the presidents of the katipunang panlalawigan and the katipunang panlungsod. The presidents of the katipunang bayan in each province shall constitute the katipunang panlalawigan. The katipunang panlungsod and the katipunang bayan shall be composed of the punong barangays of cities and municipalities, respectively. xxx xxx xxx The respondent Secretary, acting in accordance with the provision of the Local Government Code empowering him to "promulgate in detail the implementing circulars and the rules and regulations to carry out the various administrative actions required for the initial implementation of this Code in such a manner as will ensure the least disruption of on-going programs and projects 7 issued Department of Local Government Circular No. 89-09 on April 7, 1989, 8 to provide the guidelines for the conduct of the elections of officers

of the Katipunan ng mga Barangay at the municipal, city, provincial, regional and national levels. It is now the contention of petitioner that neither the constitution nor the law grants jurisdiction upon the respondent Secretary over election contests involving the election of officers of the FABC, the katipunan ng mga barangay at the provincial level. It is petitioner's theory that under Article IX, C, Section 2 of the 1987 Constitution, it is the Commission on Elections which has jurisdiction over all contests involving elective barangay officials. On the other hand, it is the opinion of the respondent Secretary that any violation of the guidelines as set forth in said circular would be a ground for filing a protest and would vest upon the Department jurisdiction to resolve any protest that may be filed in relation thereto. Under Article IX, C, Section 2(2) of the 1987 Constitution, the Commission on Elections shall exercise "exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided by trial courts of limited jurisdiction." The 1987 Constitution expanded the jurisdiction of the COMELEC by granting it appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction or elective barangay officials decided by trial courts of limited jurisdiction. 9 The jurisdiction of the COMELEC over contests involving elective barangay officials is limited to appellate jurisdiction from decisions of the trial courts. Under the law, 10 the sworn petition contesting the election of a barangay officer shall be filed with the proper Municipal or Metropolitan Trial Court by any candidate who has duly filed a certificate of candidacy and has been voted for the same office within 10 days after the proclamation of the results. A voter may also contest the election of any barangay officer on the ground of ineligibility or of disloyalty to the Republic of the Philippines by filing a sworn petition for quo warranto with the Metropolitan or Municipal Trial Court within 10 days after the proclamation of the results of the election. 11 Only appeals from decisions of inferior courts on election matters as aforestated may be decided by the COMELEC. The Court agrees with the Solicitor General that the jurisdiction of the COMELEC is over popular elections, the elected officials of which are determined through the will of the electorate. An election is the embodiment of

the popular will, the expression of the sovereign power of the people. 12 It involves the choice or selection of candidates to public office by popular vote. 13 Specifically, the term "election," in the context of the Constitution, may refer to the conduct of the polls, including the listing of voters, the holding of the electoral campaign, and the casting and counting of the votes 14 which do not characterize the election of officers in the Katipunan ng mga barangay. "Election contests" would refer to adversary proceedings by which matters involving the title or claim of title to an elective office, made before or after proclamation of the winner, is settled whether or not the contestant is claiming the office in dispute 15 and in the case of elections of barangay officials, it is restricted to proceedings after the proclamation of the winners as no preproclamation controversies are allowed. 16 The jurisdiction of the COMELEC does not cover protests over the organizational set-up of the katipunan ng mga barangay composed of popularly elected punong barangays as prescribed by law whose officers are voted upon by their respective members. The COMELEC exercises only appellate jurisdiction over election contests involving elective barangay officials decided by the Metropolitan or Municipal Trial Courts which likewise have limited jurisdiction. The authority of the COMELEC over the katipunan ng mga barangay is limited by law to supervision of the election of the representative of the katipunan concerned to the sanggunian in a particular level conducted by their own respective organization. 17 However, the Secretary of Local Government is not vested with jurisdiction to entertain any protest involving the election of officers of the FABC. There is no question that he is vested with the power to promulgate rules and regulations as set forth in Section 222 of the Local Government Code. Likewise, under Book IV, Title XII, Chapter 1, See. 3(2) of the Administrative Code of 1987, ** the respondent Secretary has the power to "establish and prescribe rules, regulations and other issuances and implementing laws on the general supervision of local government units and on the promotion of local autonomy and monitor compliance thereof by said units." Also, the respondent Secretary's rule making power is provided in See. 7, Chapter II, Book IV of the Administrative Code, to wit: (3) Promulgate rules and regulations necessary to carry out department objectives, policies, functions, plans, programs and projects;

Thus, DLG Circular No. 89-09 was issued by respondent Secretary in pursuance of his rule-making power conferred by law and which now has the force and effect of law. 18 Now the question that arises is whether or not a violation of said circular vests jurisdiction upon the respondent Secretary, as claimed by him, to hear a protest filed in relation thereto and consequently declare an election null and void. It is a well-settled principle of administrative law that unless expressly empowered, administrative agencies are bereft of quasi- judicial powers. 19 The jurisdiction of administrative authorities is dependent entirely upon the provisions of the statutes reposing power in them; they cannot confer it upon themselves. 20 Such jurisdiction is essential to give validity to their determinations. 21 There is neither a statutory nor constitutional provision expressly or even by necessary implication conferring upon the Secretary of Local Government the power to assume jurisdiction over an election protect involving officers of the katipunan ng mga barangay. An understanding of the extent of authority of the Secretary over local governments is therefore necessary if We are to resolve the issue at hand. Presidential power over local governments is limited by the Constitution to the exercise of general supervision 22"to ensure that local affairs are administered according to law." 23 The general supervision is exercised by the President through the Secretary of Local Government. 24 In administrative law, supervision means overseeing or the power or authority of an officer to see that the subordinate officers perform their duties. If the latter fails or neglects to fulfill them the former may take such action or step as prescribed by law to make them perform their duties. Control, on the other hand, means the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter. The fundamental law permits the Chief Executive to wield no more authority than that of checking whether said local government or the officers thereof perform their duties as provided by statutory enactments. Hence, the President cannot interfere with local governments so long as the same or its officers act within the scope of their authority. 25 Supervisory power, when contrasted with control, is the power of mere oversight over an inferior body; it does not include any restraining authority over such body. 26

Construing the constitutional limitation on the power of general supervision of the President over local governments, We hold that respondent Secretary has no authority to pass upon the validity or regularity of the election of the officers of the katipunan. To allow respondent Secretary to do so will give him more power than the law or the Constitution grants. It will in effect give him control over local government officials for it will permit him to interfere in a purely democratic and non-partisan activity aimed at strengthening the barangay as the basic component of local governments so that the ultimate goal of fullest autonomy may be achieved. In fact, his order that the new elections to be conducted be presided by the Regional Director is a clear and direct interference by the Department with the political affairs of the barangays which is not permitted by the limitation of presidential power to general supervision over local governments. 27 Indeed, it is the policy of the state to ensure the autonomy of local governments. 28 This state policy is echoed in the Local Government Code wherein it is declared that "the State shall guarantee and promote the autonomy of local government units to ensure their fullest development as self-reliant communities and make them more effective partners in the pursuit of national development and social progress." 29 To deny the Secretary of Local Government the power to review the regularity of the elections of officers of the katipunan would be to enhance the avowed state policy of promoting the autonomy of local governments. Moreover, although the Department is given the power to prescribe rules, regulations and other issuances, the Administrative Code limits its authority to merely "monitoring compliance" by local government units of such issuances. 30 To monitor means "to watch, observe or check. 31 This is compatible with the power of supervision of the Secretary over local governments which as earlier discussed is limited to checking whether the local government unit concerned or the officers thereof perform their duties as provided by statutory enactments. Even the Local Government Code which grants the Secretary power to issue implementing circulars, rules and regulations is silent as to how these issuances should be enforced. Since the respondent Secretary exercises only supervision and not control over local governments, it is truly doubtful if he could enforce compliance with the DLG Circular. 32 Any doubt therefore as to the power of the Secretary to interfere with local affairs should be resolved in favor of the greater autonomy of the local government. Thus, the Court holds that in assuming jurisdiction over the election protest filed by respondent Governor and declaring the election of the officers of the

FABC on June 18, 1989 as null and void, the respondent Secretary acted in excess of his jurisdiction. The respondent Secretary not having the jurisdiction to hear an election protest involving officers of the FABC, the recourse of the parties is to the ordinary courts. The Regional Trial Courts have the exclusive original jurisdiction to hear the protest. 33 The provision in DLG Circular No. 89-15 amending DLG Circular No. 89-09 which states that "whenever the guidelines are not substantially complied with, the election shall be declared null and void by the Department of Local Government and an election shall conduct and being invoked by the Solicitor General cannot be applied. DLG Circular No. 89-15 was issued on July 3, 1989 after the June 18, 1989 elections of the FABC officers and it is the rule in statutory construction that laws, including circulars and regulations 34 cannot be applied retrospectively.35 Moreover, such provision is null and void for having been issued in excess of the respondent Secretary's jurisdiction, inasmuch as an administrative authority cannot confer jurisdiction upon itself. As regards the second issue raised by petitioner, the Court finds that respondent Governor has the personality to file the protest. Under Section 205 of the Local Government Code, the membership of the sangguniang panlalawigan consists of the governor, the vice-governor, elective members of the said sanggunian and the presidents of the katipunang panlalawigan and the kabataang barangay provincial federation. The governor acts as the presiding officer of the sangguniang panlalawigan. 36 As presiding officer of the sagguniang panlalawigan, the respondent governor has an interest in the election of the officers of the FABC since its elected president becomes a member of the assembly. If the president of the FABC assumes his presidency under questionable circumstances and is allowed to sit in the sangguniang panlalawiganthe official actions of the sanggunian may be vulnerable to attacks as to their validity or legality. Hence, respondent governor is a proper party to question the regularity of the elections of the officers of the FABC. As to the third issue raised by petitioner, the Court has already ruled that the respondent Secretary has no jurisdiction to hear the protest and nullify the elections. Nevertheless, the Court holds that the issue of the validity of the elections should now be resolved in order to prevent any unnecessary delay that may result from the commencement of an appropriate action by the parties.

The elections were declared null and void primarily for failure to comply with Section 2.4 of DLG Circular No. 89-09 which provides that "the incumbent FABC President or the Vice-President shall preside over the reorganizational meeting, there being a quorum." The rule specifically provides that it is the incumbent FABC President or Vice-President who shall preside over the meeting. The word "shall" should be taken in its ordinary signification, i.e., it must be imperative or mandatory and not merely permissive, 37 as the rule is explicit and requires no other interpretation. If it had been intended that any other official should preside, the rules would have provided so, as it did in the elections at the town and city levels 38 as well as the regional level.. 39 It is admitted that neither the incumbent FABC President nor the VicePresident presided over the meeting and elections but Alberto P. Molina, Jr., the Chairman of the Board of Election Supervisors/Consultants. Thus, there was a clear violation of the aforesaid mandatory provision. On this ground, the elections should be nullified. Under Sec. 2.3.2.7 of the same circular it is provided that a Board of Election Supervisors/Consultants shall be constituted to oversee and/or witness the canvassing of votes and proclamation of winners. The rules confine the role of the Board of Election Supervisors/Consultants to merely overseeing and witnessing the conduct of elections. This is consistent with the provision in the Local Government Code limiting the authority of the COMELEC to the supervision of the election. 40 In case at bar, PGOO Molina, the Chairman of the Board, presided over the elections. There was direct participation by the Chairman of the Board in the elections contrary to what is dictated by the rules. Worse, there was no Board of Election Supervisors to oversee the elections in view of the walk out staged by its two other members, the Provincial COMELEC Supervisor and the Provincial Treasurer. The objective of keeping the election free and honest was therefore compromised. The Court therefore finds that the election of officers of the FABC held on June 18, 1989 is null and void for failure to comply with the provisions of DLG Circular No. 89-09. Meanwhile, pending resolution of this petition, petitioner filed a supplemental petition alleging that public respondent Local Government Secretary, in his memorandum dated June 7, 1990, designated Augusto Antonio as temporary representative of the Federation to the sangguniang panlalawigan of

Catanduanes. 41 By virtue of this memorandum, respondent governor swore into said office Augusto Antonio on June 14, 1990. 42 The Solicitor General filed his comment on the supplemental petition 43 as required by the resolution of the Court dated September 13,1990. In his comment, the Solicitor General dismissed the supervening event alleged by petitioner as something immaterial to the petition. He argues that Antonio's appointment was merely temporary "until such time that the provincial FABC president in that province has been elected, appointed and qualified." 44 He stresses that Antonio's appointment was only a remedial measure designed to cope with the problems brought about by the absence of a representative of the FABC to the "sanggunian ang panlalawigan." Sec. 205 (2) of the Local Government Code (B.P. Blg. 337) provides(2) The sangguniang panlalawigan shall be composed of the governor, the vice-governor, elective members of the said sanggunian and the presidents of the katipunang panlalawigan and the kabataang barangay provincial federation who shall be appointed by the President of the Philippines. (Emphasis supplied.) Batas Pambansa Blg. 51, under Sec. 2 likewise states: xxx xxx xxx The sangguniang panlalawigan of each province shall be composed of the governor as chairman and presiding officer, the vice-governor as presiding officer pro tempore, the elective sangguniang panlalawigan members, and the appointive members consisting of the president of the provincial association of barangay councils, and the president of the provincial federation of the kabataang barangay. (Emphasis supplied.) In Ignacio vs. Banate Jr. 45 the Court, interpreting similarly worded provisions of Batas Pambansa Blg. 337 and Batas Pambansa Blg. 51 on the composition of the sangguniang panlungsod, 46 declared as null and void the appointment of private respondent Leoncio Banate Jr. as member of the Sangguniang Panlungsod of the City of Roxas representing the katipunang panlungsod ng mga barangay for he lacked the elegibility and qualification required by law, not being a barangay captain and for not having been elected president of the

association of barangay councils. The Court held that an unqualified person cannot be appointed a member of the sanggunian, even in an acting capacity. In Reyes vs. Ferrer, 47 the appointment of Nemesio L. Rasgo Jr. as representative of the youth sector to the sangguniang panlungsod of Davao City was declared invalid since he was never the president of the kabataang barangay city federation as required by Sec. 173, Batas Pambansa Blg. 337. In the present controversy involving the sangguniang panlalawigan, the law is likewise explicit. To be appointed by the President of the Philippines to sit in the sangguniang panlalawigan is the president of the katipunang panlalawigan. The appointee must meet the qualifications set by law. 48 The appointing power is bound by law to comply with the requirements as to the basic qualifications of the appointee to the sangguniang panlalawigan. The President of the Philippines or his alter ego, the Secretary of Local Government, has no authority to appoint anyone who does not meet the minimum qualification to be the president of the federation of barangay councils. Augusto Antonio is not the president of the federation. He is a member of the federation but he was not even present during the elections despite notice. The argument that Antonio was appointed as a remedial measure in the exigency of the service cannot be sustained. Since Antonio does not meet the basic qualification of being president of the federation, his appointment to the sangguniang panlalawigan is not justified notwithstanding that such appointment is merely in a temporary capacity. If the intention of the respondent Secretary was to protect the interest of the federation in the sanggunian, he should have appointed the incumbent FABC President in a hold-over capacity. For even under the guidelines, the term of office of officers of the katipunan at all levels shall be from the date of their election until their successors shall have been duly elected and qualified, without prejudice to the terms of their appointments as members of the sanggunian to which they may be correspondingly appointed. 49 Since the election is still under protest such that no successor of the incumbent has as yet qualified, the respondent Secretary has no choice but to have the incumbent FABC President sit as member of thesanggunian. He could even have appointed petitioner since he was elected the president of the federation but not Antonio. The appointment of Antonio, allegedly the protege of respondent Governor, gives credence to petitioner's charge of political interference by respondent Governor in the organization. This should not be allowed. The barangays should be insulated from any partisan activity or political intervention if only to give true meaning to local autonomy.

WHEREFORE, the petition is GRANTED in that the resolution of respondent Secretary dated August 4, 1989 is hereby SET ASIDE for having been issued in excess of jurisdiction. The election of the officials of the ABC Federation held on June 18, 1989 is hereby annulled. A new election of officers of the federation is hereby ordered to be conducted immediately in accordance with the governing rules and regulations. The Supplemental petition is hereby GRANTED. The appointment of Augusto Antonio as representative to theSangguniang Panlalawigan in a temporary capacity is declared null and void.

G.R. No. L-23825

December 24, 1965

EMMANUEL PELAEZ, petitioner, vs. THE AUDITOR GENERAL, respondent. Zulueta, Gonzales, Paculdo and Associates for petitioner. Office of the Solicitor General for respondent. CONCEPCION, J.: During the period from September 4 to October 29, 1964 the President of the Philippines, purporting to act pursuant to Section 68 of the Revised Administrative Code, issued Executive Orders Nos. 93 to 121, 124 and 126 to 129; creating thirty-three (33) municipalities enumerated in the margin.1 Soon after the date last mentioned, or on November 10, 1964 petitioner Emmanuel Pelaez, as Vice President of the Philippines and as taxpayer, instituted the present special civil action, for a writ of prohibition with preliminary injunction, against the Auditor General, to restrain him, as well as his representatives and agents, from passing in audit any expenditure of public funds in implementation of said executive orders and/or any disbursement by said municipalities. Petitioner alleges that said executive orders are null and void, upon the ground that said Section 68 has been impliedly repealed by Republic Act No. 2370 and constitutes an undue delegation of legislative power. Respondent maintains the contrary view and avers that the present action is premature and that not all proper parties referring to the officials of the new political subdivisions in question have been impleaded. Subsequently, the mayors of several municipalities adversely affected by the aforementioned executive orders because the latter have taken away from the former the barrios composing the new political subdivisions intervened in the case. Moreover, Attorneys Enrique M. Fernando and Emma Quisumbing-Fernando were allowed to and did appear asamici curiae. The third paragraph of Section 3 of Republic Act No. 2370, reads: Barrios shall not be created or their boundaries altered nor their names changed except under the provisions of this Act or by Act of Congress. Pursuant to the first two (2) paragraphs of the same Section 3:

All barrios existing at the time of the passage of this Act shall come under the provisions hereof. Upon petition of a majority of the voters in the areas affected, a new barrio may be created or the name of an existing one may be changed by the provincial board of the province, upon recommendation of the council of the municipality or municipalities in which the proposed barrio is stipulated. The recommendation of the municipal council shall be embodied in a resolution approved by at least two-thirds of the entire membership of the said council: Provided, however, That no new barrio may be created if its population is less than five hundred persons. Hence, since January 1, 1960, when Republic Act No. 2370 became effective, barrios may "not be created or their boundaries altered nor their names changed" except by Act of Congress or of the corresponding provincial board "upon petition of a majority of the voters in the areas affected" and the "recommendation of the council of the municipality or municipalities in which the proposed barrio is situated." Petitioner argues, accordingly: "If the President, under this new law, cannot even create a barrio, can he create a municipality which is composed of several barrios, since barrios are units of municipalities?" Respondent answers in the affirmative, upon the theory that a new municipality can be created without creating new barrios, such as, by placing old barrios under the jurisdiction of the new municipality. This theory overlooks, however, the main import of the petitioner's argument, which is that the statutory denial of the presidential authority to create a new barrio implies a negation of the bigger power to create municipalities, each of which consists of several barrios. The cogency and force of this argument is too obvious to be denied or even questioned. Founded upon logic and experience, it cannot be offset except by a clear manifestation of the intent of Congress to the contrary, and no such manifestation, subsequent to the passage of Republic Act No. 2379, has been brought to our attention. Moreover, section 68 of the Revised Administrative Code, upon which the disputed executive orders are based, provides: The (Governor-General) President of the Philippines may by executive order define the boundary, or boundaries, of any province, subprovince, municipality, [township] municipal district, or other political subdivision, and increase or diminish the territory comprised therein, may divide any province into one or more subprovinces, separate any political division

other than a province, into such portions as may be required, merge any of such subdivisions or portions with another, name any new subdivision so created, and may change the seat of government within any subdivision to such place therein as the public welfare may require: Provided, That the authorization of the (Philippine Legislature) Congress of the Philippines shall first be obtained whenever the boundary of any province or subprovince is to be defined or any province is to be divided into one or more subprovinces. When action by the (Governor-General) President of the Philippines in accordance herewith makes necessary a change of the territory under the jurisdiction of any administrative officer or any judicial officer, the (Governor-General) President of the Philippines, with the recommendation and advice of the head of the Department having executive control of such officer, shall redistrict the territory of the several officers affected and assign such officers to the new districts so formed. Upon the changing of the limits of political divisions in pursuance of the foregoing authority, an equitable distribution of the funds and obligations of the divisions thereby affected shall be made in such manner as may be recommended by the (Insular Auditor) Auditor General and approved by the (Governor-General) President of the Philippines. Respondent alleges that the power of the President to create municipalities under this section does not amount to an undue delegation of legislative power, relying upon Municipality of Cardona vs. Municipality of Binagonan (36 Phil. 547), which, he claims, has settled it. Such claim is untenable, for said case involved, not the creation of a new municipality, but a mere transfer of territory from an already existing municipality (Cardona) to another municipality (Binagonan), likewise, existing at the time of and prior to said transfer (See Gov't of the P.I. ex rel. Municipality of Cardona vs. Municipality, of Binagonan [34 Phil. 518, 519-5201) in consequence of the fixing and definition, pursuant to Act No. 1748, of the common boundaries of two municipalities. It is obvious, however, that, whereas the power to fix such common boundary, in order to avoid or settle conflicts of jurisdiction between adjoining municipalities, may partake of an administrative nature involving, as it does, the adoption of means and ways to carry into effect the law creating said municipalities the authority to create municipal corporations is essentially legislative in nature. In the language of other courts, it is "strictly a legislative function" (State ex rel. Higgins vs. Aicklen, 119 S. 425, January 2, 1959) or "solely and exclusively the exercise oflegislative power" (Udall vs.

Severn, May 29, 1938, 79 P. 2d 347-349). As the Supreme Court of Washington has put it (Territory ex rel. Kelly vs. Stewart, February 13, 1890, 23 Pac. 405, 409), "municipal corporations are purely the creatures of statutes." Although1a Congress may delegate to another branch of the Government the power to fill in the details in the execution, enforcement or administration of a law, it is essential, to forestall a violation of the principle of separation of powers, that said law: (a) be complete in itself it must set forth therein the policy to be executed, carried out or implemented by the delegate2 and (b) fix a standard the limits of which are sufficiently determinate or determinable to which the delegate must conform in the performance of his functions.2a Indeed, without a statutory declaration of policy, the delegate would in effect, make or formulate such policy, which is the essence of every law; and, without the aforementioned standard, there would be no means to determine, with reasonable certainty, whether the delegate has acted within or beyond the scope of his authority.2b Hence, he could thereby arrogate upon himself the power, not only to make the law, but, also and this is worse to unmake it, by adopting measures inconsistent with the end sought to be attained by the Act of Congress, thus nullifying the principle of separation of powers and the system of checks and balances, and, consequently, undermining the very foundation of our Republican system. Section 68 of the Revised Administrative Code does not meet these well settled requirements for a valid delegation of the power to fix the details in the enforcement of a law. It does not enunciate any policy to be carried out or implemented by the President. Neither does it give a standard sufficiently precise to avoid the evil effects above referred to. In this connection, we do not overlook the fact that, under the last clause of the first sentence of Section 68, the President: ... may change the seat of the government within any subdivision to such place therein as the public welfare may require. It is apparent, however, from the language of this clause, that the phrase "as the public welfare may require" qualified, not the clauses preceding the one just quoted, but only the place to which the seat of the government may be transferred. This fact becomes more apparent when we consider that said Section 68 was originally Section 1 of Act No. 1748,3 which provided that, "whenever in the judgment of the Governor-General the public welfare requires, he may, by executive order," effect the changes enumerated therein (as in said section 68), including the change of the seat of the

government "to such place ... as the public interest requires." The opening statement of said Section 1 of Act No. 1748 which was not included in Section 68 of the Revised Administrative Code governed the time at which, or the conditions under which, the powers therein conferred could be exercised; whereas the last part of the first sentence of said section referred exclusively to the place to which the seat of the government was to be transferred. At any rate, the conclusion would be the same, insofar as the case at bar is concerned, even if we assumed that the phrase "as the public welfare may require," in said Section 68, qualifies all other clauses thereof. It is true that in Calalang vs. Williams (70 Phil. 726) and People vs. Rosenthal (68 Phil. 328), this Court had upheld "public welfare" and "public interest," respectively, as sufficient standards for a valid delegation of the authority to execute the law. But, the doctrine laid down in these cases as all judicial pronouncements must be construed in relation to the specific facts and issues involved therein, outside of which they do not constitute precedents and have no binding effect.4 The law construed in the Calalang case conferred upon the Director of Public Works, with the approval of the Secretary of Public Works and Communications, the power to issue rules and regulations topromote safe transit upon national roads and streets. Upon the other hand, the Rosenthal case referred to the authority of the Insular Treasurer, under Act No. 2581, to issue and cancel certificates or permits for the sale ofspeculative securities. Both cases involved grants to administrative officers of powers related to the exercise of their administrative functions, calling for the determination of questions of fact. Such is not the nature of the powers dealt with in section 68. As above indicated, the creation of municipalities, is not an administrative function, but one which is essentially and eminently legislative in character. The question of whether or not "public interest" demands the exercise of such power is not one of fact. it is "purely a legislativequestion "(Carolina-Virginia Coastal Highway vs. Coastal Turnpike Authority, 74 S.E. 2d. 310-313, 315-318), or apolitical question (Udall vs. Severn, 79 P. 2d. 347-349). As the Supreme Court of Wisconsin has aptly characterized it, "the question as to whether incorporation is for the best interest of the community in any case is emphatically a question of public policy and statecraft" (In re Village of North Milwaukee, 67 N.W. 1033, 1035-1037). For this reason, courts of justice have annulled, as constituting undue delegation of legislative powers, state laws granting the judicial department, the power to determine whether certain territories should be annexed to a

particular municipality (Udall vs. Severn, supra, 258-359); or vesting in a Commission the right to determine the plan and frame of government of proposed villages and what functions shall be exercised by the same, although the powers and functions of the village are specifically limited by statute (In re Municipal Charters, 86 Atl. 307-308); or conferring upon courts the authority to declare a given town or village incorporated, and designate its metes and bounds, upon petition of a majority of the taxable inhabitants thereof, setting forth the area desired to be included in such village (Territory ex rel Kelly vs. Stewart, 23 Pac. 405-409); or authorizing the territory of a town, containing a given area and population, to be incorporated as a town, on certain steps being taken by the inhabitants thereof and on certain determination by a court and subsequent vote of the inhabitants in favor thereof, insofar as the court is allowed to determine whether the lands embraced in the petition "ought justly" to be included in the village, and whether the interest of the inhabitants will be promoted by such incorporation, and to enlarge and diminish the boundaries of the proposed village "as justice may require" (In re Villages of North Milwaukee, 67 N.W. 1035-1037); or creating a Municipal Board of Control which shall determine whether or not the laying out, construction or operation of a toll road is in the "public interest" and whether the requirements of the law had been complied with, in which case the board shall enter an order creating a municipal corporation and fixing the name of the same (Carolina-Virginia Coastal Highway vs. Coastal Turnpike Authority, 74 S.E. 2d. 310). Insofar as the validity of a delegation of power by Congress to the President is concerned, the case of Schechter Poultry Corporation vs. U.S. (79 L. Ed. 1570) is quite relevant to the one at bar. The Schechter case involved the constitutionality of Section 3 of the National Industrial Recovery Act authorizing the President of the United States to approve "codes of fair competition" submitted to him by one or more trade or industrial associations or corporations which "impose no inequitable restrictions on admission to membership therein and are truly representative," provided that such codes are not designed "to promote monopolies or to eliminate or oppress small enterprises and will not operate to discriminate against them, and will tend to effectuate the policy" of said Act. The Federal Supreme Court held: To summarize and conclude upon this point: Sec. 3 of the Recovery Act is without precedent. It supplies no standards for any trade, industry or activity. It does not undertake to prescribe rules of conduct to be applied to particular states of fact determined by appropriate administrative procedure. Instead of prescribing rules of conduct, it authorizes the

making of codes to prescribe them. For that legislative undertaking, Sec. 3 sets up no standards, aside from the statement of the general aims of rehabilitation, correction and expansion described in Sec. 1. In view of the scope of that broad declaration, and of the nature of the few restrictions that are imposed, the discretion of the President in approving or prescribing codes, and thus enacting laws for the government of trade and industry throughout the country, is virtually unfettered. We think that the code making authority thus conferred is an unconstitutional delegation of legislative power. If the term "unfair competition" is so broad as to vest in the President a discretion that is "virtually unfettered." and, consequently, tantamount to a delegation of legislative power, it is obvious that "public welfare," which has even a broader connotation, leads to the same result. In fact, if the validity of the delegation of powers made in Section 68 were upheld, there would no longer be any legal impediment to a statutory grant of authority to the President to do anything which, in his opinion, may be required by public welfare or public interest. Such grant of authority would be a virtual abdication of the powers of Congress in favor of the Executive, and would bring about a total collapse of the democratic system established by our Constitution, which it is the special duty and privilege of this Court to uphold. It may not be amiss to note that the executive orders in question were issued after the legislative bills for the creation of the municipalities involved in this case had failed to pass Congress. A better proof of the fact that the issuance of said executive orders entails the exercise of purely legislative functions can hardly be given. Again, Section 10 (1) of Article VII of our fundamental law ordains: The President shall have control of all the executive departments, bureaus, or offices, exercise general supervision over all local governments as may be provided by law, and take care that the laws be faithfully executed. The power of control under this provision implies the right of the President to interfere in the exercise of such discretion as may be vested by law in the officers of the executive departments, bureaus, or offices of the national government, as well as to act in lieu of such officers. This power is denied by the Constitution to the Executive, insofar as local governments are concerned. With respect to the latter, the fundamental law permits him to wield no more authority than that of checking whether said local governments or the officers

thereof perform their duties as provided by statutory enactments. Hence, the President cannot interfere with local governments, so long as the same or its officers act Within the scope of their authority. He may not enact an ordinance which the municipal council has failed or refused to pass, even if it had thereby violated a duty imposed thereto by law, although he may see to it that the corresponding provincial officials take appropriate disciplinary action therefor. Neither may he vote, set aside or annul an ordinance passed by said council within the scope of its jurisdiction, no matter how patently unwise it may be. He may not even suspend an elective official of a regular municipality or take any disciplinary action against him, except on appeal from a decision of the corresponding provincial board.5 Upon the other hand if the President could create a municipality, he could, in effect, remove any of its officials, by creating a new municipality and including therein the barrio in which the official concerned resides, for his office would thereby become vacant.6 Thus, by merely brandishing the power to create a new municipality (if he had it), without actually creating it, he could compel local officials to submit to his dictation, thereby, in effect, exercising over them the power of control denied to him by the Constitution. Then, also, the power of control of the President over executive departments, bureaus or offices implies no morethan the authority to assume directly the functions thereof or to interfere in the exercise of discretion by its officials. Manifestly, such control does not include the authority either to abolish an executive department or bureau, or to create a new one. As a consequence, the alleged power of the President to create municipal corporations would necessarily connote the exercise by him of an authority even greater than that of control which he has over the executive departments, bureaus or offices. In other words, Section 68 of the Revised Administrative Code does not merely fail to comply with the constitutional mandate above quoted. Instead of giving the President less power over local governments than that vested in him over the executive departments, bureaus or offices, it reverses the process and does the exact opposite, by conferring upon him more power over municipal corporations than that which he has over said executive departments, bureaus or offices. In short, even if it did entail an undue delegation of legislative powers, as it certainly does, said Section 68, as part of the Revised Administrative Code, approved on March 10, 1917, must be deemed repealed by the subsequent adoption of the Constitution, in 1935, which is utterly incompatible and inconsistent with said statutory enactment.7

There are only two (2) other points left for consideration, namely, respondent's claim (a) that "not all the proper parties" referring to the officers of the newly created municipalities "have been impleaded in this case," and (b) that "the present petition is premature." As regards the first point, suffice it to say that the records do not show, and the parties do not claim, that the officers of any of said municipalities have been appointed or elected and assumed office. At any rate, the Solicitor General, who has appeared on behalf of respondent Auditor General, is the officer authorized by law "to act and represent the Government of the Philippines, its offices and agents, in any official investigation, proceeding or matter requiring the services of a lawyer" (Section 1661, Revised Administrative Code), and, in connection with the creation of the aforementioned municipalities, which involves a political, not proprietary, function, said local officials, if any, are mere agents or representatives of the national government. Their interest in the case at bar has, accordingly, been, in effect, duly represented.8 With respect to the second point, respondent alleges that he has not as yet acted on any of the executive order & in question and has not intimated how he would act in connection therewith. It is, however, a matter of common, public knowledge, subject to judicial cognizance, that the President has, for many years, issued executive orders creating municipal corporations and that the same have been organized and in actual operation, thus indicating, without peradventure of doubt, that the expenditures incidental thereto have been sanctioned, approved or passed in audit by the General Auditing Office and its officials. There is no reason to believe, therefore, that respondent would adopt a different policy as regards the new municipalities involved in this case, in the absence of an allegation to such effect, and none has been made by him. WHEREFORE, the Executive Orders in question are hereby declared null and void ab initio and the respondent permanently restrained from passing in audit any expenditure of public funds in implementation of said Executive Orders or any disbursement by the municipalities above referred to. It is so ordered. Bengzon, C.J., Bautista Angelo, Reyes, J.B.L., Barrera and Dizon, JJ., concur. Zaldivar, J., took no part.

Separate Opinions BENGZON, J.P., J., concurring and dissenting: A sign of progress in a developing nation is the rise of new municipalities. Fostering their rapid growth has long been the aim pursued by all three branches of our Government. So it was that the Governor-General during the time of the Jones Law was given authority by the Legislature (Act No. 1748) to act upon certain details with respect to said local governments, such as fixing of boundaries, subdivisions and mergers. And the Supreme Court, within the framework of the Jones Law, ruled in 1917 that the execution or implementation of such details, did not entail abdication of legislative power (Government vs. Municipality of Binagonan, 34 Phil. 518; Municipality of Cardona vs. Municipality of Binagonan, 36 Phil. 547). Subsequently, Act No. 1748's aforesaid statutory authorization was embodied in Section 68 of the Revised Administrative Code. And Chief Executives since then up to the present continued to avail of said provision, time and again invoking it to issue executive orders providing for the creation of municipalities. From September 4, 1964 to October 29, 1964 the President of the Philippines issued executive orders to create thirty-three municipalities pursuant to Section 68 of the Revised Administrative Code. Public funds thereby stood to be disbursed in implementation of said executive orders. Suing as private citizen and taxpayer, Vice President Emmanuel Pelaez filed in this Court a petition for prohibition with preliminary injunction against the Auditor General. It seeks to restrain the respondent or any person acting in his behalf, from passing in audit any expenditure of public funds in implementation of the executive orders aforementioned. Petitioner contends that the President has no power to create a municipality by executive order. It is argued that Section 68 of the Revised Administrative Code of 1917, so far as it purports to grant any such power, is invalid or, at the least, already repealed, in light of the Philippine Constitution and Republic Act 2370 (The Barrio Charter). Section 68 is again reproduced hereunder for convenience:

SEC. 68. General authority of [Governor-General) President of the Philippines to fix boundaries and make new subdivisions. The [Governor-General] President of the Philippines may by executive order define the boundary, or boundaries, of any province, subprovince, municipality, [township] municipal district, or other political subdivision, and increase or diminish the territory comprised therein, may divide any province into one or more subprovinces, separate any political division other than a province, into such portions as may be required, merge any of such subdivisions or portions with another, name any new subdivision so created, and may change the seat of government within any subdivision to such place therein as the public welfare may require: Provided, That the authorization of the [Philippine Legislature] Congress of the Philippines shall first be obtained whenever the boundary of any province or subprovince is to be defined or any province is to be divided into one or more subprovinces. When action by the [Governor-General] President of the Philippines in accordance herewith makes necessary a change of the territory under the jurisdiction of any administrative officer or any judicial officer, the [Governor-General] President of the Philippines, with the recommendation and advice of the head of the Department having executive control of such officer, shall redistrict the territory of the several officers to the new districts so formed. Upon the changing of the limits of political divisions in pursuance of the foregoing authority, an equitable distribution of the funds and obligations of the divisions thereby affected shall be made in such manner as may be recommended by the [Insular Auditor] Auditor General and approved by the [Governor-General] President of the Philippines. From such working I believe that power to create a municipality is included: to "separate any political division other than a province, into such portions as may be required, merge any such subdivisions or portions with another, name any new subdivision so created." The issue, however, is whether the legislature can validly delegate to the Executive such power. The power to create a municipality is legislative in character. American authorities have therefore favored the view that it cannot be delegated; that what is delegable is not the power to create municipalities but only the power to determine the existence of facts under which creation of a municipality will result (37 Am. Jur. 628). The test is said to lie in whether the statute allows any discretion on the delegate as to whether the municipal corporation should be created. If so,

there is an attempted delegation of legislative power and the statute is invalid (Ibid.). Now Section 68 no doubt gives the President such discretion, since it says that the President "may by executive order" exercise the powers therein granted. Furthermore, Section 5 of the same Code states: SEC. 5. Exercise of administrative discretion The exercise of the permissive powers of all executive or administrative officers and bodies is based upon discretion, and when such officer or body is given authority to do any act but not required to do such act, the doing of the same shall be dependent on a sound discretion to be exercised for the good of the service and benefit of the public, whether so expressed in the statute giving the authority or not. Under the prevailing rule in the United States and Section 68 is of American origin the provision in question would be an invalid attempt to delegate purely legislative powers, contrary to the principle of separation of powers. It is very pertinent that Section 68 should be considered with the stream of history in mind. A proper knowledge of the past is the only adequate background for the present. Section 68 was adopted half a century ago. Political change, two world wars, the recognition of our independence and rightful place in the family of nations, have since taken place. In 1917 the Philippines had for its Organic Act the Jones Law. And under the setup ordained therein no strict separation of powers was adhered to. Consequently, Section 68 was not constitutionally objectionable at the time of its enactment. The advent of the Philippine Constitution in 1935 however altered the situation. For not only was separation of powers strictly ordained, except only in specific instances therein provided, but the power of the Chief Executive over local governments suffered an explicit reduction. Formerly, Section 21 of the Jones Law provided that the Governor-General "shall have general supervision and control of all the departments and bureaus of the government in the Philippine Islands." Now Section 10 (1), Article VII of the Philippine Constitution provides: "The President shall have control of all the executive departments, bureaus, or offices, exercise general supervision over all local governments as may be provided by law, and take care that the laws be faithfully executed.

In short, the power of control over local governments had now been taken away from the Chief Executive. Again, to fully understand the significance of this provision, one must trace its development and growth. As early as April 7, 1900 President McKinley of the United States, in his Instructions to the Second Philippine Commission, laid down the policy that our municipal governments should be "subject to the least degree of supervision and control" on the part of the national government. Said supervision and control was to be confined within the "narrowest limits" or so much only as "may be necessary to secure and enforce faithful and efficient administration by local officers." And the national government "shall have no direct administration except of matters of purely general concern." (See Hebron v. Reyes, L-9158, July 28, 1958.) All this had one aim, to enable the Filipinos to acquire experience in the art of self-government, with the end in view of later allowing them to assume complete management and control of the administration of their local affairs. Such aim is the policy now embodied in Section 10 (1), Article VII of the Constitution (Rodriguez v. Montinola, 50 O.G. 4820). It is the evident decree of the Constitution, therefore, that the President shall have no power of control over local governments. Accordingly, Congress cannot by law grant him such power (Hebron v. Reyes, supra). And any such power formerly granted under the Jones Law thereby became unavoidably inconsistent with the Philippine Constitution. It remains to examine the relation of the power to create and the power to control local governments. Said relationship has already been passed upon by this Court in Hebron v. Reyes, supra. In said case, it was ruled that the power to control is an incident of the power to create or abolish municipalities. Respondent's view, therefore, that creating municipalities and controlling their local governments are "two worlds apart," is untenable. And since as stated, the power to control local governments can no longer be conferred on or exercised by the President, it follows a fortiori that the power to create them, all the more cannot be so conferred or exercised. I am compelled to conclude, therefore, that Section 10 (1), Article VII of the Constitution has repealed Section 68 of the Revised Administrative Code as far as the latter empowers the President to create local governments. Repeal by the Constitution of prior statutes inconsistent with it has already been sustained in De los Santos v. MaIlare, 87 Phil. 289. And it was there held that such repeal differs from a declaration of unconstitutionality of a posterior

legislation, so much so that only a majority vote of the Court is needed to sustain a finding of repeal. Since the Constitution repealed Section 68 as far back as 1935, it is academic to ask whether Republic Act 2370 likewise has provisions in conflict with Section 68 so as to repeal it. Suffice it to state, at any rate, that statutory prohibition on the President from creating a barrio does not, in my opinion, warrant the inference of statutory prohibition for creating a municipality. For although municipalities consist of barrios, there is nothing in the statute that would preclude creation of new municipalities out of pre-existing barrios. It is not contrary to the logic of local autonomy to be able to create larger political units and unable to create smaller ones. For as long ago observed in President McKinley's Instructions to the Second Philippine Commission, greater autonomy is to be imparted to the smaller of the two political units. The smaller the unit of local government, the lesser is the need for the national government's intervention in its political affairs. Furthermore, for practical reasons, local autonomy cannot be given from the top downwards. The national government, in such a case, could still exercise power over the supposedly autonomous unit, e.g., municipalities, by exercising it over the smaller units that comprise them, e.g., the barrios. A realistic program of decentralization therefore calls for autonomy from the bottom upwards, so that it is not surprising for Congress to deny the national government some power over barrios without denying it over municipalities. For this reason, I disagree with the majority view that because the President could not create a barrio under Republic Act 2370, a fortiori he cannot create a municipality. It is my view, therefore, that the Constitution, and not Republic Act 2370, repealed Section 68 of the Revised Administrative Code's provision giving the President authority to create local governments. And for this reason I agree with the ruling in the majority opinion that the executive orders in question are null and void. In thus ruling, the Court is but sustaining the fulfillment of our historic desire to be free and independent under a republican form of government, and exercising a function derived from the very sovereignty that it upholds. Executive orders declared null and void. Makalintal and Regala, JJ., concur.

MAYOR PABLO P. MAGTAJAS & THE CITY OF CAGAYAN DE ORO, petitioners, vs. PRYCE PROPERTIES CORPORATION, INC. & PHILIPPINE AMUSEMENT AND GAMING CORPORATION,respondents. Aquilino G. Pimentel, Jr. and Associates for petitioners. R.R. Torralba & Associates for private respondent.

CRUZ, J.: There was instant opposition when PAGCOR announced the opening of a casino in Cagayan de Oro City. Civic organizations angrily denounced the project. The religious elements echoed the objection and so did the women's groups and the youth. Demonstrations were led by the mayor and the city legislators. The media trumpeted the protest, describing the casino as an affront to the welfare of the city. The trouble arose when in 1992, flush with its tremendous success in several cities, PAGCOR decided to expand its operations to Cagayan de Oro City. To this end, it leased a portion of a building belonging to Pryce Properties Corporation, Inc., one of the herein private respondents, renovated and equipped the same, and prepared to inaugurate its casino there during the Christmas season. The reaction of the Sangguniang Panlungsod of Cagayan de Oro City was swift and hostile. On December 7, 1992, it enacted Ordinance No. 3353 reading as follows: ORDINANCE NO. 3353 AN ORDINANCE PROHIBITING THE ISSUANCE OF BUSINESS PERMIT AND CANCELLING EXISTING BUSINESS PERMIT TO ANY ESTABLISHMENT FOR THE USING AND ALLOWING TO BE USED ITS PREMISES OR PORTION THEREOF FOR THE OPERATION OF CASINO. BE IT ORDAINED by the Sangguniang Panlungsod of the City of Cagayan de Oro, in session assembled that:

Sec. 1. That pursuant to the policy of the city banning the operation of casino within its territorial jurisdiction, no business permit shall be issued to any person, partnership or corporation for the operation of casino within the city limits. Sec. 2. That it shall be a violation of existing business permit by any persons, partnership or corporation to use its business establishment or portion thereof, or allow the use thereof by others for casino operation and other gambling activities. Sec. 3. PENALTIES. Any violation of such existing business permit as defined in the preceding section shall suffer the following penalties, to wit: a) Suspension of the business permit for sixty (60) days for the first offense and a fine of P1,000.00/day b) Suspension of the business permit for Six (6) months for the second offense, and a fine of P3,000.00/day c) Permanent revocation of the business permit and imprisonment of One (1) year, for the third and subsequent offenses. Sec. 4. This Ordinance shall take effect ten (10) days from publication thereof. Nor was this all. On January 4, 1993, it adopted a sterner Ordinance No. 3375-93 reading as follows: ORDINANCE NO. 3375-93 AN ORDINANCE PROHIBITING THE OPERATION OF CASINO AND PROVIDING PENALTY FOR VIOLATION THEREFOR. WHEREAS, the City Council established a policy as early as 1990 against CASINO under its Resolution No. 2295;

WHEREAS, on October 14, 1992, the City Council passed another Resolution No. 2673, reiterating its policy against the establishment of CASINO; WHEREAS, subsequently, thereafter, it likewise passed Ordinance No. 3353, prohibiting the issuance of Business Permit and to cancel existing Business Permit to any establishment for the using and allowing to be used its premises or portion thereof for the operation of CASINO; WHEREAS, under Art. 3, section 458, No. (4), sub paragraph VI of the Local Government Code of 1991 (Rep. Act 7160) and under Art. 99, No. (4), Paragraph VI of the implementing rules of the Local Government Code, the City Council as the Legislative Body shall enact measure to suppress any activity inimical to public morals and general welfare of the people and/or regulate or prohibit such activity pertaining to amusement or entertainment in order to protect social and moral welfare of the community; NOW THEREFORE, BE IT ORDAINED by the City Council in session duly assembled that: Sec. 1. The operation of gambling CASINO in the City of Cagayan de Oro is hereby prohibited. Sec. 2. Any violation of this Ordinance shall be subject to the following penalties: a) Administrative fine of P5,000.00 shall be imposed against the proprietor, partnership or corporation undertaking the operation, conduct, maintenance of gambling CASINO in the City and closure thereof; b) Imprisonment of not less than six (6) months nor more than one (1) year or a fine in the amount of P5,000.00 or both at the discretion of the court against the manager, supervisor, and/or any person responsible in the establishment, conduct and maintenance of gambling CASINO.

Sec. 3. This Ordinance shall take effect ten (10) days after its publication in a local newspaper of general circulation. Pryce assailed the ordinances before the Court of Appeals, where it was joined by PAGCOR as intervenor and supplemental petitioner. Their challenge succeeded. On March 31, 1993, the Court of Appeals declared the ordinances invalid and issued the writ prayed for to prohibit their enforcement. 1 Reconsideration of this decision was denied on July 13, 1993. 2 Cagayan de Oro City and its mayor are now before us in this petition for review under Rule 45 of the Rules of Court. 3 They aver that the respondent Court of Appeals erred in holding that: 1. Under existing laws, the Sangguniang Panlungsod of the City of Cagayan de Oro does not have the power and authority to prohibit the establishment and operation of a PAGCOR gambling casino within the City's territorial limits. 2. The phrase "gambling and other prohibited games of chance" found in Sec. 458, par. (a), sub-par. (1) (v) of R.A. 7160 could only mean "illegal gambling." 3. The questioned Ordinances in effect annul P.D. 1869 and are therefore invalid on that point. 4. The questioned Ordinances are discriminatory to casino and partial to cockfighting and are therefore invalid on that point. 5. The questioned Ordinances are not reasonable, not consonant with the general powers and purposes of the instrumentality concerned and inconsistent with the laws or policy of the State. 6. It had no option but to follow the ruling in the case of Basco, et al. v. PAGCOR, G.R. No. 91649, May 14, 1991, 197 SCRA 53 in disposing of the issues presented in this present case. PAGCOR is a corporation created directly by P.D. 1869 to help centralize and regulate all games of chance, including casinos on land and sea within the territorial jurisdiction of the Philippines. In Basco v. Philippine Amusements and Gaming Corporation, 4 this Court sustained the constitutionality of the decree and even cited the benefits of the entity to the national economy as the

third highest revenue-earner in the government, next only to the BIR and the Bureau of Customs. Cagayan de Oro City, like other local political subdivisions, is empowered to enact ordinances for the purposes indicated in the Local Government Code. It is expressly vested with the police power under what is known as the General Welfare Clause now embodied in Section 16 as follows: Sec. 16. General Welfare. Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall ensure and support, among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific and technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants. In addition, Section 458 of the said Code specifically declares that: Sec. 458. Powers, Duties, Functions and Compensation. (a) The Sangguniang Panlungsod, as the legislative body of the city, shall enact ordinances, approve resolutions and appropriate funds for the general welfare of the city and its inhabitants pursuant to Section 16 of this Code and in the proper exercise of the corporate powers of the city as provided for under Section 22 of this Code, and shall: (1) Approve ordinances and pass resolutions necessary for an efficient and effective city government, and in this connection, shall: xxx xxx xxx (v) Enact ordinances intended to prevent, suppress and impose appropriate penalties for habitual drunkenness in

public places, vagrancy, mendicancy, prostitution, establishment and maintenance of houses of ill repute,gambling and other prohibited games of chance, fraudulent devices and ways to obtain money or property, drug addiction, maintenance of drug dens, drug pushing, juvenile delinquency, the printing, distribution or exhibition of obscene or pornographic materials or publications, and such other activities inimical to the welfare and morals of the inhabitants of the city; This section also authorizes the local government units to regulate properties and businesses within their territorial limits in the interest of the general welfare. 5 The petitioners argue that by virtue of these provisions, the Sangguniang Panlungsod may prohibit the operation of casinos because they involve games of chance, which are detrimental to the people. Gambling is not allowed by general law and even by the Constitution itself. The legislative power conferred upon local government units may be exercised over all kinds of gambling and not only over "illegal gambling" as the respondents erroneously argue. Even if the operation of casinos may have been permitted under P.D. 1869, the government of Cagayan de Oro City has the authority to prohibit them within its territory pursuant to the authority entrusted to it by the Local Government Code. It is submitted that this interpretation is consonant with the policy of local autonomy as mandated in Article II, Section 25, and Article X of the Constitution, as well as various other provisions therein seeking to strengthen the character of the nation. In giving the local government units the power to prevent or suppress gambling and other social problems, the Local Government Code has recognized the competence of such communities to determine and adopt the measures best expected to promote the general welfare of their inhabitants in line with the policies of the State. The petitioners also stress that when the Code expressly authorized the local government units to prevent and suppress gambling and other prohibited games of chance, like craps, baccarat, blackjack and roulette, it meant allforms of gambling without distinction. Ubi lex non distinguit, nec nos

distinguere debemos. 6 Otherwise, it would have expressly excluded from the scope of their power casinos and other forms of gambling authorized by special law, as it could have easily done. The fact that it did not do so simply means that the local government units are permitted to prohibit all kinds of gambling within their territories, including the operation of casinos. The adoption of the Local Government Code, it is pointed out, had the effect of modifying the charter of the PAGCOR. The Code is not only a later enactment than P.D. 1869 and so is deemed to prevail in case of inconsistencies between them. More than this, the powers of the PAGCOR under the decree are expressly discontinued by the Code insofar as they do not conform to its philosophy and provisions, pursuant to Par. (f) of its repealing clause reading as follows: (f) All general and special laws, acts, city charters, decrees, executive orders, proclamations and administrative regulations, or part or parts thereof which are inconsistent with any of the provisions of this Code are hereby repealed or modified accordingly. It is also maintained that assuming there is doubt regarding the effect of the Local Government Code on P.D. 1869, the doubt must be resolved in favor of the petitioners, in accordance with the direction in the Code calling for its liberal interpretation in favor of the local government units. Section 5 of the Code specifically provides: Sec. 5. Rules of Interpretation. In the interpretation of the provisions of this Code, the following rules shall apply: (a) Any provision on a power of a local government unit shall be liberally interpreted in its favor, and in case of doubt, any question thereon shall be resolved in favor of devolution of powers and of the lower local government unit. Any fair and reasonable doubt as to the existence of the power shall be interpreted in favor of the local government unit concerned; xxx xxx xxx (c) The general welfare provisions in this Code shall be liberally interpreted to give more powers to local government units in accelerating economic development and upgrading the quality of life for the people in the community; . . . (Emphasis supplied.)

Finally, the petitioners also attack gambling as intrinsically harmful and cite various provisions of the Constitution and several decisions of this Court expressive of the general and official disapprobation of the vice. They invoke the State policies on the family and the proper upbringing of the youth and, as might be expected, call attention to the old case of U.S. v. Salaveria, 7 which sustained a municipal ordinance prohibiting the playing of panguingue. The petitioners decry the immorality of gambling. They also impugn the wisdom of P.D. 1869 (which they describe as "a martial law instrument") in creating PAGCOR and authorizing it to operate casinos "on land and sea within the territorial jurisdiction of the Philippines." This is the opportune time to stress an important point. The morality of gambling is not a justiciable issue. Gambling is not illegal per se. While it is generally considered inimical to the interests of the people, there is nothing in the Constitution categorically proscribing or penalizing gambling or, for that matter, even mentioning it at all. It is left to Congress to deal with the activity as it sees fit. In the exercise of its own discretion, the legislature may prohibit gambling altogether or allow it without limitation or it may prohibit some forms of gambling and allow others for whatever reasons it may consider sufficient. Thus, it has prohibited jueteng and monte but permits lotteries, cockfighting and horse-racing. In making such choices, Congress has consulted its own wisdom, which this Court has no authority to review, much less reverse. Well has it been said that courts do not sit to resolve the merits of conflicting theories. 8 That is the prerogative of the political departments. It is settled that questions regarding the wisdom, morality, or practicibility of statutes are not addressed to the judiciary but may be resolved only by the legislative and executive departments, to which the function belongs in our scheme of government. That function is exclusive. Whichever way these branches decide, they are answerable only to their own conscience and the constituents who will ultimately judge their acts, and not to the courts of justice. The only question we can and shall resolve in this petition is the validity of Ordinance No. 3355 and Ordinance No. 3375-93 as enacted by the Sangguniang Panlungsod of Cagayan de Oro City. And we shall do so only by the criteria laid down by law and not by our own convictions on the propriety of gambling. The tests of a valid ordinance are well established. A long line of decisions 9 has held that to be valid, an ordinance must conform to the following substantive requirements:

1) It must not contravene the constitution or any statute. 2) It must not be unfair or oppressive. 3) It must not be partial or discriminatory. 4) It must not prohibit but may regulate trade. 5) It must be general and consistent with public policy. 6) It must not be unreasonable. We begin by observing that under Sec. 458 of the Local Government Code, local government units are authorized to prevent or suppress, among others, "gambling and other prohibited games of chance." Obviously, this provision excludes games of chance which are not prohibited but are in fact permitted by law. The petitioners are less than accurate in claiming that the Code could have excluded such games of chance but did not. In fact it does. The language of the section is clear and unmistakable. Under the rule of noscitur a sociis, a word or phrase should be interpreted in relation to, or given the same meaning of, words with which it is associated. Accordingly, we conclude that since the word "gambling" is associated with "and other prohibited games of chance," the word should be read as referring to only illegal gambling which, like the other prohibited games of chance, must be prevented or suppressed. We could stop here as this interpretation should settle the problem quite conclusively. But we will not. The vigorous efforts of the petitioners on behalf of the inhabitants of Cagayan de Oro City, and the earnestness of their advocacy, deserve more than short shrift from this Court. The apparent flaw in the ordinances in question is that they contravene P.D. 1869 and the public policy embodied therein insofar as they prevent PAGCOR from exercising the power conferred on it to operate a casino in Cagayan de Oro City. The petitioners have an ingenious answer to this misgiving. They deny that it is the ordinances that have changed P.D. 1869 for an ordinance admittedly cannot prevail against a statute. Their theory is that the change has been made by the Local Government Code itself, which was also enacted by the national lawmaking authority. In their view, the decree has been, not really repealed by the Code, but merely "modified pro tanto" in the sense that PAGCOR cannot now operate a casino over the objection of the local government unit concerned. This modification of P.D. 1869 by the Local

Government Code is permissible because one law can change or repeal another law. It seems to us that the petitioners are playing with words. While insisting that the decree has only been "modifiedpro tanto," they are actually arguing that it is already dead, repealed and useless for all intents and purposes because the Code has shorn PAGCOR of all power to centralize and regulate casinos. Strictly speaking, its operations may now be not only prohibited by the local government unit; in fact, the prohibition is not only discretionary but mandated by Section 458 of the Code if the word "shall" as used therein is to be given its accepted meaning. Local government units have now no choice but to prevent and suppress gambling, which in the petitioners' view includes both legal and illegal gambling. Under this construction, PAGCOR will have no more games of chance to regulate or centralize as they must all be prohibited by the local government units pursuant to the mandatory duty imposed upon them by the Code. In this situation, PAGCOR cannot continue to exist except only as a toothless tiger or a white elephant and will no longer be able to exercise its powers as a prime source of government revenue through the operation of casinos. It is noteworthy that the petitioners have cited only Par. (f) of the repealing clause, conveniently discarding the rest of the provision which painstakingly mentions the specific laws or the parts thereof which are repealed (or modified) by the Code. Significantly, P.D. 1869 is not one of them. A reading of the entire repealing clause, which is reproduced below, will disclose the omission: Sec. 534. Repealing Clause. (a) Batas Pambansa Blg. 337, otherwise known as the "Local Government Code," Executive Order No. 112 (1987), and Executive Order No. 319 (1988) are hereby repealed. (b) Presidential Decree Nos. 684, 1191, 1508 and such other decrees, orders, instructions, memoranda and issuances related to or concerning the barangay are hereby repealed. (c) The provisions of Sections 2, 3, and 4 of Republic Act No. 1939 regarding hospital fund; Section 3, a (3) and b (2) of Republic Act. No. 5447 regarding the Special Education Fund; Presidential Decree No. 144 as amended by Presidential Decree Nos. 559 and 1741; Presidential Decree No. 231 as amended; Presidential Decree No. 436 as amended by Presidential Decree

No. 558; and Presidential Decree Nos. 381, 436, 464, 477, 526, 632, 752, and 1136 are hereby repealed and rendered of no force and effect. (d) Presidential Decree No. 1594 is hereby repealed insofar as it governs locally-funded projects. (e) The following provisions are hereby repealed or amended insofar as they are inconsistent with the provisions of this Code: Sections 2, 16, and 29 of Presidential Decree No. 704; Sections 12 of Presidential Decree No. 87, as amended; Sections 52, 53, 66, 67, 68, 69, 70, 71, 72, 73, and 74 of Presidential Decree No. 463, as amended; and Section 16 of Presidential Decree No. 972, as amended, and (f) All general and special laws, acts, city charters, decrees, executive orders, proclamations and administrative regulations, or part or parts thereof which are inconsistent with any of the provisions of this Code are hereby repealed or modified accordingly. Furthermore, it is a familiar rule that implied repeals are not lightly presumed in the absence of a clear and unmistakable showing of such intention. In Lichauco & Co. v. Apostol, 10 this Court explained: The cases relating to the subject of repeal by implication all proceed on the assumption that if the act of later date clearly reveals an intention on the part of the lawmaking power to abrogate the prior law, this intention must be given effect; but there must always be a sufficient revelation of this intention, and it has become an unbending rule of statutory construction that the intention to repeal a former law will not be imputed to the Legislature when it appears that the two statutes, or provisions, with reference to which the question arises bear to each other the relation of general to special. There is no sufficient indication of an implied repeal of P.D. 1869. On the contrary, as the private respondent points out, PAGCOR is mentioned as the source of funding in two later enactments of Congress, to wit, R.A. 7309, creating a Board of Claims under the Department of Justice for the benefit of victims of unjust punishment or detention or of violent crimes, and R.A. 7648, providing for measures for the solution of the power crisis. PAGCOR revenues

are tapped by these two statutes. This would show that the PAGCOR charter has not been repealed by the Local Government Code but has in fact been improved as it were to make the entity more responsive to the fiscal problems of the government. It is a canon of legal hermeneutics that instead of pitting one statute against another in an inevitably destructive confrontation, courts must exert every effort to reconcile them, remembering that both laws deserve a becoming respect as the handiwork of a coordinate branch of the government. On the assumption of a conflict between P.D. 1869 and the Code, the proper action is not to uphold one and annul the other but to give effect to both by harmonizing them if possible. This is possible in the case before us. The proper resolution of the problem at hand is to hold that under the Local Government Code, local government units may (and indeed must) prevent and suppress all kinds of gambling within their territories except only those allowed by statutes like P.D. 1869. The exception reserved in such laws must be read into the Code, to make both the Code and such laws equally effective and mutually complementary. This approach would also affirm that there are indeed two kinds of gambling, to wit, the illegal and those authorized by law. Legalized gambling is not a modern concept; it is probably as old as illegal gambling, if not indeed more so. The petitioners' suggestion that the Code authorizes them to prohibit all kinds of gambling would erase the distinction between these two forms of gambling without a clear indication that this is the will of the legislature. Plausibly, following this theory, the City of Manila could, by mere ordinance, prohibit the Philippine Charity Sweepstakes Office from conducting a lottery as authorized by R.A. 1169 and B.P. 42 or stop the races at the San Lazaro Hippodrome as authorized by R.A. 309 and R.A. 983. In light of all the above considerations, we see no way of arriving at the conclusion urged on us by the petitioners that the ordinances in question are valid. On the contrary, we find that the ordinances violate P.D. 1869, which has the character and force of a statute, as well as the public policy expressed in the decree allowing the playing of certain games of chance despite the prohibition of gambling in general. The rationale of the requirement that the ordinances should not contravene a statute is obvious. Municipal governments are only agents of the national government. Local councils exercise only delegated legislative powers conferred on them by Congress as the national lawmaking body. The delegate cannot be superior to the principal or exercise powers higher than those of the

latter. It is a heresy to suggest that the local government units can undo the acts of Congress, from which they have derived their power in the first place, and negate by mere ordinance the mandate of the statute.
Municipal corporations owe their origin to, and derive their powers and rights wholly from the legislature. It breathes into them the breath of life, without which they cannot exist. As it creates, so it may destroy. As it may destroy, it may abridge and control. Unless there is some constitutional limitation on the right, the legislature might, by a single act, and if we can suppose it capable of so great a folly and so great a wrong, sweep from existence all of the municipal corporations in the State, and the corporation could not prevent it. We know of no limitation on the right so far as to the corporation themselves are concerned. 11 They are, so to phrase it, the mere tenants at will of the legislature.

This basic relationship between the national legislature and the local government units has not been enfeebled by the new provisions in the Constitution strengthening the policy of local autonomy. Without meaning to detract from that policy, we here confirm that Congress retains control of the local government units although in significantly reduced degree now than under our previous Constitutions. The power to create still includes the power to destroy. The power to grant still includes the power to withhold or recall. True, there are certain notable innovations in the Constitution, like the direct conferment on the local government units of the power to tax, 12which cannot now be withdrawn by mere statute. By and large, however, the national legislature is still the principal of the local government units, which cannot defy its will or modify or violate it. The Court understands and admires the concern of the petitioners for the welfare of their constituents and their apprehensions that the welfare of Cagayan de Oro City will be endangered by the opening of the casino. We share the view that "the hope of large or easy gain, obtained without special effort, turns the head of the workman"13 and that "habitual gambling is a cause of laziness and ruin." 14 In People v. Gorostiza, 15 we declared: "The social scourge of gambling must be stamped out. The laws against gambling must be enforced to the limit." George Washington called gambling "the child of avarice, the brother of iniquity and the father of mischief." Nevertheless, we must recognize the power of the legislature to decide, in its own wisdom, to legalize certain forms of gambling, as was done in P.D. 1869 and impliedly affirmed in the Local Government Code. That decision can be revoked by this Court only if it contravenes the Constitution as the touchstone of all official acts. We do not find such contravention here. We hold that the power of PAGCOR to centralize and regulate all games of chance, including casinos on land and sea within the territorial jurisdiction of the Philippines, remains unimpaired. P.D. 1869 has not been modified by the

Local Government Code, which empowers the local government units to prevent or suppress only those forms of gambling prohibited by law. Casino gambling is authorized by P.D. 1869. This decree has the status of a statute that cannot be amended or nullified by a mere ordinance. Hence, it was not competent for the Sangguniang Panlungsod of Cagayan de Oro City to enact Ordinance No. 3353 prohibiting the use of buildings for the operation of a casino and Ordinance No. 3375-93 prohibiting the operation of casinos. For all their praiseworthy motives, these ordinances are contrary to P.D. 1869 and the public policy announced therein and are therefore ultra vires and void. WHEREFORE, the petition is DENIED and the challenged decision of the respondent Court of Appeals is AFFIRMED, with costs against the petitioners. It is so ordered. Narvasa, C.J., Feliciano, Bidin, Regalado, Romero, Bellosillo, Melo, Quiason, Puno, Vitug, Kapunan and Mendoza, JJ., concur.

Separate Opinions

PADILLA, J., concurring: I concur with the majority holding that the city ordinances in question cannot modify much less repeal PAGCOR's general authority to establish and maintain gambling casinos anywhere in the Philippines under Presidential Decree No. 1869. In Basco v. Philippine Amusement and Gaming Corporation (PAGCOR), 197 SCRA 52, I stated in a separate opinion that: . . . I agree with the decision insofar as it holds that the prohibition, control, and regulation of the entire activity known as gambling properly pertain to "state policy". It is, therefore, the political departments of government, namely, the legislative and the

executive that should decide on what government should do in the entire area of gambling, and assume full responsibility to the people for such policy." (Emphasis supplied) However, despite the legality of the opening and operation of a casino in Cagayan de Oro City by respondent PAGCOR, I wish to reiterate my view that gambling in any form runs counter to the government's own efforts to reestablish and resurrect the Filipino moral character which is generally perceived to be in a state of continuing erosion. It is in the light of this alarming perspective that I call upon government to carefully weigh the advantages and disadvantages of setting up more gambling facilities in the country. That the PAGCOR contributes greatly to the coffers of the government is not enough reason for setting up more gambling casinos because, undoubtedly, this will not help improve, but will cause a further deterioration in the Filipino moral character. It is worth remembering in this regard that, 1) what is legal is not always moral and 2) the ends do not always justify the means. As in Basco, I can easily visualize prostitution at par with gambling. And yet, legalization of the former will not render it any less reprehensible even if substantial revenue for the government can be realized from it. The same is true of gambling. In the present case, it is my considered view that the national government (through PAGCOR) should re-examine and re-evaluate its decision of imposing the gambling casino on the residents of Cagayan de Oro City; for it is abundantly clear that public opinion in the city is very much against it, and again the question must be seriously deliberated: will the prospects of revenue to be realized from the casino outweigh the further destruction of the Filipino sense of values?

DAVIDE, JR., J., concurring: While I concur in part with the majority, I wish, however, to express my views on certain aspects of this case.

I. It must at once be noted that private respondent Pryce Properties Corporation (PRYCE) directly filed with the Court of Appeals its so-called petition for prohibition, thereby invoking the said court's original jurisdiction to issue writs of prohibition under Section 9(1) of B.P. Blg. 129. As I see it, however, the principal cause of action therein is one for declaratory relief: to declare null and unconstitutional for, inter alia, having been enacted without or in excess of jurisdiction, for impairing the obligation of contracts, and for being inconsistent with public policy the challenged ordinances enacted by the Sangguniang Panglungsod of the City of Cagayan de Oro. The intervention therein of public respondent Philippine Amusement and Gaming Corporation (PAGCOR) further underscores the "declaratory relief" nature of the action. PAGCOR assails the ordinances for being contrary to the nonimpairment and equal protection clauses of the Constitution, violative of the Local Government Code, and against the State's national policy declared in P.D. No. 1869. Accordingly, the Court of Appeals does not have jurisdiction over the nature of the action. Even assuming arguendo that the case is one for prohibition, then, under this Court's established policy relative to the hierarchy of courts, the petition should have been filed with the Regional Trial Court of Cagayan de Oro City. I find no special or compelling reason why it was not filed with the said court. I do not wish to entertain the thought that PRYCE doubted a favorable verdict therefrom, in which case the filing of the petition with the Court of Appeals may have been impelled by tactical considerations. A dismissal of the petition by the Court of Appeals would have been in order pursuant to our decisions in People vs. Cuaresma (172 SCRA 415, [1989]) and Defensor-Santiago vs. Vasquez (217 SCRA 633 [1993]). In Cuaresma, this Court stated: A last word. This court's original jurisdiction to issue writs of certiorari (as well as prohibition,mandamus, quo warranto, habeas corpus and injunction) is not exclusive. It is shared by this Court with Regional Trial Courts (formerly Courts of First Instance), which may issue the writ, enforceable in any part of their respective regions. It is also shared by this court, and by the Regional Trial Court, with the Court of Appeals (formerly, Intermediate Appellate Court), although prior to the effectivity ofBatas Pambansa Bilang 129 on August 14, 1981, the latter's competence to issue the extraordinary writs was restricted by those "in aid of its appellate jurisdiction." This concurrence of jurisdiction is not, however, to be taken as according to parties

seeking any of the writs an absolute, unrestrained freedom of choice of the court to which application therefor will be directed. There is after all a hierarchy of courts. That hierarchy is determinative of the revenue of appeals, and should also serve as a general determinant of the appropriate forum for petitions for the extraordinary writs. A becoming regard for that judicial hierarchy most certainly indicates that petitions for the issuance of extraordinary writs against first level ("inferior") courts should be filed with the Regional Trial Court, and those against the latter, with the Court of Appeals. A direct invocation of the Supreme Court's original jurisdiction to issue these writs should be allowed only when there are special and important reasons therefor, clearly and specifically set out in the petition. This is established policy. It is a policy that is necessary to prevent inordinate demands upon the Court's time and attention which are better devoted to those matters within its exclusive jurisdiction, and to prevent further over-crowding of the Court's docket. Indeed, the removal of the restriction of the jurisdiction of the Court of Appeals in this regard, supra resulting from the deletion of the qualifying phrase, "in aid of its appellate jurisdiction" was evidently intended precisely to relieve this Court pro tanto of the burden of dealing with applications for extraordinary writs which, but for the expansion of the Appellate Court's corresponding jurisdiction, would have had to be filed with it. (citations omitted) And in Vasquez, this Court said: One final observation. We discern in the proceedings in this case a propensity on the part of petitioner, and, for that matter, the same may be said of a number of litigants who initiate recourses before us, to disregard the hierarchy of courts in our judicial system by seeking relief directly from this Court despite the fact that the same is available in the lower courts in the exercise of their original or concurrent jurisdiction, or is even mandated by law to be sought therein. This practice must be stopped, not only because of the imposition upon the previous time of this Court but also because of the inevitable and resultant delay, intended or otherwise, in the adjudication of the case which often has to be remanded or referred to the lower court as the proper forum under the rules of procedure, or as better equipped to resolve the issues since this Court is not a trier of facts. We, therefore, reiterate the

judicial policy that this Court will not entertain direct resort to it unless the redress desired cannot be obtained in the appropriate courts or where exceptional and compelling circumstances justify availment of a remedy within and calling for the exercise of our primary jurisdiction. II. The challenged ordinances are (a) Ordinance No. 3353 entitled, "An Ordinance Prohibiting the Issuance of Business Permit and Canceling Existing Business Permit To Any Establishment for the Using and Allowing to be Used Its Premises or Portion Thereof for the Operation of Casino," and (b) Ordinance No. 3375-93 entitled, "An Ordinance Prohibiting the Operation of Casino and Providing Penalty for Violation Therefor." They were enacted to implement Resolution No. 2295 entitled, "Resolution Declaring As a Matter of Policy to Prohibit and/or Not to Allow the Establishment of the Gambling Casino in the City of Cagayan de Oro," which was promulgated on 19 November 1990 nearly two years before PRYCE and PAGCOR entered into a contract of lease under which the latter leased a portion of the former's Pryce Plaza Hotel for the operation of a gambling casino which resolution was vigorously reiterated in Resolution No. 2673 of 19 October 1992. The challenged ordinances were enacted pursuant to the Sangguniang Panglungsod's express powers conferred by Section 458, paragraph (a), subparagraphs (1)-(v), (3)-(ii), and (4)-(i), (iv), and (vii), Local Government Code, and pursuant to its implied power under Section 16 thereof (the general welfare clause) which reads: Sec. 16. General Welfare. Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall ensure and support, among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific and technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants.

The issue that necessarily arises is whether in granting local governments (such as the City of Cagayan de Oro) the above powers and functions, the Local Government Code has, pro tanto, repealed P.D. No. 1869 insofar as PAGCOR's general authority to establish and maintain gambling casinos anywhere in the Philippines is concerned. I join the majority in holding that the ordinances cannot repeal P.D. No. 1869. III. The nullification by the Court of Appeals of the challenged ordinances as unconstitutional primarily because it is in contravention to P.D. No. 1869 is unwarranted. A contravention of a law is not necessarily a contravention of the constitution. In any case, the ordinances can still stand even if they be conceded as offending P.D. No. 1869. They can be reconciled, which is not impossible to do. So reconciled, the ordinances should be construed as not applying to PAGCOR. IV. From the pleadings, it is obvious that the government and the people of Cagayan de Oro City are, for obvious reasons, strongly against the opening of the gambling casino in their city. Gambling, even if legalized, would be inimical to the general welfare of the inhabitants of the City, or of any place for that matter. The PAGCOR, as a government-owned corporation, must consider the valid concerns of the people of the City of Cagayan de Oro and should not impose its will upon them in an arbitrary, if not despotic, manner.

# Separate Opinions

PADILLA, J., concurring: I concur with the majority holding that the city ordinances in question cannot modify much less repeal PAGCOR's general authority to establish and maintain gambling casinos anywhere in the Philippines under Presidential Decree No. 1869.

In Basco v. Philippine Amusement and Gaming Corporation (PAGCOR), 197 SCRA 52, I stated in a separate opinion that: . . . I agree with the decision insofar as it holds that the prohibition, control, and regulation of the entire activity known as gambling properly pertain to "state policy". It is, therefore, the political departments of government, namely, the legislative and the executive that should decide on what government should do in the entire area of gambling, and assume full responsibility to the people for such policy. (emphasis supplied) However, despite the legality of the opening and operation of a casino in Cagayan de Oro City by respondent PAGCOR, I wish to reiterate my view that gambling in any form runs counter to the government's own efforts to reestablish and resurrect the Filipino moral character which is generally perceived to be in a state of continuing erosion. It is in the light of this alarming perspective that I call upon government to carefully weigh the advantages and disadvantages of setting up more gambling facilities in the country. That the PAGCOR contributes greatly to the coffers of the government is not enough reason for setting up more gambling casinos because, undoubtedly, this will not help improve, but will cause a further deterioration in the Filipino moral character. It is worth remembering in this regard that, 1) what is legal is not always moral and 2) the ends do not always justify the means. As in Basco, I can easily visualize prostitution at par with gambling. And yet, legalization of the former will not render it any less reprehensible even if substantial revenue for the government can be realized from it. The same is true of gambling. In the present case, it is my considered view that the national government (through PAGCOR) should re-examine and re-evaluate its decision of imposing the gambling casino on the residents of Cagayan de Oro City; for it is abundantly clear that public opinion in the city is very much against it, and again the question must be seriously deliberated: will the prospects of revenue to be realized from the casino outweigh the further destruction of the Filipino sense of values?

DAVIDE, JR., J., concurring: While I concur in part with the majority, I wish, however, to express my views on certain aspects of this case. I. It must at once be noted that private respondent Pryce Properties Corporation (PRYCE) directly filed with the Court of Appeals its so-called petition for prohibition, thereby invoking the said court's original jurisdiction to issue writs of prohibition under Section 9(1) of B.P. Blg. 129. As I see it, however, the principal cause of action therein is one for declaratory relief: to declare null and unconstitutional for, inter alia, having been enacted without or in excess of jurisdiction, for impairing the obligation of contracts, and for being inconsistent with public policy the challenged ordinances enacted by the Sangguniang Panglungsod of the City of Cagayan de Oro. The intervention therein of public respondent Philippine Amusement and Gaming Corporation (PAGCOR) further underscores the "declaratory relief" nature of the action. PAGCOR assails the ordinances for being contrary to the non-impairment and equal protection clauses of the Constitution, violative of the Local Government Code, and against the State's national policy declared in P.D. No. 1869. Accordingly, the Court of Appeals does not have jurisdiction over the nature of the action. Even assuming arguendo that the case is one for prohibition, then, under this Court's established policy relative to the hierarchy of courts, the petition should have been filed with the Regional Trial Court of Cagayan de Oro City. I find no special or compelling reason why it was not filed with the said court. I do not wish to entertain the thought that PRYCE doubted a favorable verdict therefrom, in which case the filing of the petition with the Court of Appeals may have been impelled by tactical considerations. A dismissal of the petition by the Court of Appeals would have been in order pursuant to our decisions in People vs. Cuaresma (172 SCRA 415, [1989]) and Defensor-Santiago vs. Vasquez (217 SCRA 633 [1993]). In Cuaresma, this Court stated: A last word. This court's original jurisdiction to issue writs of certiorari (as well as prohibition,mandamus, quo warranto, habeas corpus and injunction) is not exclusive. It is shared by this Court with Regional Trial Courts (formerly Courts of First Instance), which may issue the writ, enforceable in any part of their respective regions. It is also shared by this court, and by the Regional Trial Court, with the Court of Appeals (formerly, Intermediate Appellate Court), although prior to the effectivity

ofBatas Pambansa Bilang 129 on August 14, 1981, the latter's competence to issue the extraordinary writs was restricted by those "in aid of its appellate jurisdiction." This concurrence of jurisdiction is not, however, to be taken as according to parties seeking any of the writs an absolute, unrestrained freedom of choice of the court to which application therefor will be directed. There is after all a hierarchy of courts. That hierarchy is determinative of the revenue of appeals, and should also serve as a general determinant of the appropriate forum for petitions for the extraordinary writs. A becoming regard for that judicial hierarchy most certainly indicates that petitions for the issuance of extraordinary writs against first level ("inferior") courts should be filed with the Regional Trial Court, and those against the latter, with the Court of Appeals. A direct invocation of the Supreme Court's original jurisdiction to issue these writs should be allowed only when there are special and important reasons therefor, clearly and specifically set out in the petition. This is established policy. It is a policy that is necessary to prevent inordinate demands upon the Court's time and attention which are better devoted to those matters within its exclusive jurisdiction, and to prevent further over-crowding of the Court's docket. Indeed, the removal of the restriction of the jurisdiction of the Court of Appeals in this regard, supra resulting from the deletion of the qualifying phrase, "in aid of its appellate jurisdiction" was evidently intended precisely to relieve this Court pro tanto of the burden of dealing with applications for extraordinary writs which, but for the expansion of the Appellate Court's corresponding jurisdiction, would have had to be filed with it. (citations omitted) And in Vasquez, this Court said: One final observation. We discern in the proceedings in this case a propensity on the part of petitioner, and, for that matter, the same may be said of a number of litigants who initiate recourses before us, to disregard the hierarchy of courts in our judicial system by seeking relief directly from this Court despite the fact that the same is available in the lower courts in the exercise of their original or concurrent jurisdiction, or is even mandated by law to be sought therein. This practice must be stopped, not only because of the imposition upon the previous time of this Court but also because of the inevitable and resultant delay, intended or

otherwise, in the adjudication of the case which often has to be remanded or referred to the lower court as the proper forum under the rules of procedure, or as better equipped to resolve the issues since this Court is not a trier of facts. We, therefore, reiterate the judicial policy that this Court will not entertain direct resort to it unless the redress desired cannot be obtained in the appropriate courts or where exceptional and compelling circumstances justify availment of a remedy within and calling for the exercise of our primary jurisdiction. II. The challenged ordinances are (a) Ordinance No. 3353 entitled, "An Ordinance Prohibiting the Issuance of Business Permit and Canceling Existing Business Permit To Any Establishment for the Using and Allowing to be Used Its Premises or Portion Thereof for the Operation of Casino," and (b) Ordinance No. 3375-93 entitled, "An Ordinance Prohibiting the Operation of Casino and Providing Penalty for Violation Therefor." They were enacted to implement Resolution No. 2295 entitled, "Resolution Declaring As a Matter of Policy to Prohibit and/or Not to Allow the Establishment of the Gambling Casino in the City of Cagayan de Oro," which was promulgated on 19 November 1990 nearly two years before PRYCE and PAGCOR entered into a contract of lease under which the latter leased a portion of the former's Pryce Plaza Hotel for the operation of a gambling casino which resolution was vigorously reiterated in Resolution No. 2673 of 19 October 1992. The challenged ordinances were enacted pursuant to the Sangguniang Panglungsod's express powers conferred by Section 458, paragraph (a), subparagraphs (1)-(v), (3)-(ii), and (4)-(i), (iv), and (vii), Local Government Code, and pursuant to its implied power under Section 16 thereof (the general welfare clause) which reads: Sec. 16. General Welfare. Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall ensure and support, among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific and

technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants. The issue that necessarily arises is whether in granting local governments (such as the City of Cagayan de Oro) the above powers and functions, the Local Government Code has, pro tanto, repealed P.D. No. 1869 insofar as PAGCOR's general authority to establish and maintain gambling casinos anywhere in the Philippines is concerned. I join the majority in holding that the ordinances cannot repeal P.D. No. 1869. III. The nullification by the Court of Appeals of the challenged ordinances as unconstitutional primarily because it is in contravention to P.D. No. 1869 is unwarranted. A contravention of a law is not necessarily a contravention of the constitution. In any case, the ordinances can still stand even if they be conceded as offending P.D. No. 1869. They can be reconciled, which is not impossible to do. So reconciled, the ordinances should be construed as not applying to PAGCOR. IV. From the pleadings, it is obvious that the government and the people of Cagayan de Oro City are, for obvious reasons, strongly against the opening of the gambling casino in their city. Gambling, even if legalized, would be inimical to the general welfare of the inhabitants of the City, or of any place for that matter. The PAGCOR, as a government-owned corporation, must consider the valid concerns of the people of the City of Cagayan de Oro and should not impose its will upon them in an arbitrary, if not despotic, manner.

G.R. No. 131512

January 20, 2000

LAND TRANSPORTATION OFFICE [LTO], represented by Assistant Secretary Manuel F. Bruan, LTO Regional Office, Region X represented by its Regional Director, Timoteo A. Garcia; and LTO Butuan represented by Rosita G. Sadiaga, its Registrar, petitioners, vs. CITY OF BUTUAN, represented in this case by Democrito D. Plaza II, City Mayor, respondents. VITUG, J.: The 1987 Constitution enunciates the policy that the territorial and political subdivisions shall enjoy local autonomy.1 In obedience to that mandate of the fundamental law, Republic Act ("R.A.") No. 7160, otherwise known as the Local Government Code,2 expresses that the territorial and political subdivisions of the State shall enjoy genuine and meaningful local autonomy in order to enable them to attain their fullest development as self-reliant communities and make them more effective partners in the attainment of national goals, and that it is a basic aim of the State to 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. While the Constitution seeks to strengthen local units and ensure their viability, clearly, however, it has never been the intention of that organic law to create an imperuim in imperio and install an infra sovereign political subdivision independent of a single sovereign state. The Court is asked in this instance to resolve the issue of whether under the present set up the power of the Land Registration Office ("LTO") to register, tricycles in particular, as well as to issue licenses for the driving thereof, has likewise devolved to local government units. The Regional Trial Court (Branch 2) of Butuan City held3 that the authority to register tricycles, the grant of the corresponding franchise, the issuance of tricycle drivers' license, and the collection of fees therefor had all been vested in the Local Government Units ("LGUs"). Accordingly, it decreed the issuance of a permanent writ of injunction against LTO, prohibiting and enjoining LTO, as well as its employees and other persons acting in its behalf, from (a) registering tricycles and (b) issuing licenses to drivers of tricycles. The Court of Appeals, on appeal to it, sustained the trial court.
1wphi1. nt

The adverse rulings of both the court a quo and the appellate court prompted the LTO to file the instant petition for review on certiorari to annul and set aside the decision,4 dated 17 November 1997, of the Court of Appeals affirming the permanent injunctive writ order of the Regional Trial Court (Branch 2) of Butuan City. Respondent City of Butuan asserts that one of the salient provisions introduced by the Local Government Code is in the area of local taxation which allows LGUs to collect registration fees or charges along with, in its view, the corresponding issuance of all kinds of licenses or permits for the driving of tricycles. The 1987 Constitution provides: Each local government unit shall have the power to create its own sources of revenues and to levy taxes, fees, and charges subject to such guidelines and limitations as the Congress may provide, consistent with the basic policy of local autonomy. Such taxes, fees, and charges shall accrue exclusively to the local governments.5 Sec. 129 and Section 133 of the Local Government Code read: Sec. 129. Power to Create Sources or Revenue. Each local government unit shall exercise its power to create its own sources of revenue and to levy taxes, fees, and charges subject to the provisions herein, consistent with the basic policy of local autonomy. Such taxes, fees, and charges shall accrue exclusively to the local government units. Sec. 133. Common Limitations on the Taxing Powers of Local Government Units. Unless otherwise provided herein, the exercise of the taxing powers of provinces, cities, municipalities, and barangays shall not extend to the levy of the following: xxx xxx xxx

(l) Taxes, fees or charges for the registration of motor vehicles and for the issuance of all kinds of licenses or permits for the driving thereof, except tricycles. Relying on the foregoing provisions of the law, the Sangguniang Panglungsod ("SP") of Butuan, on 16 August 1992, passed SP Ordinance No. 916-92

entitled "An Ordinance Regulating the Operation of Tricycles-for-Hire, providing mechanism for the issuance of Franchise, Registration and Permit, and imposing Penalties for Violations thereof and for other Purposes." The ordinance provided for, among other things, the payment of franchise fees for the grant of the franchise of tricycles-for-hire, fees for the registration of the vehicle, and fees for the issuance of a permit for the driving thereof. Petitioner LTO explains that one of the functions of the national government that, indeed, has been transferred to local government units is the franchising authority over tricycles-for-hire of the Land Transportation Franchising and Regulatory Board ("LTFRB") but not, it asseverates, the authority of LTO to register all motor vehicles and to issue to qualified persons of licenses to drive such vehicles. In order to settle the variant positions of the parties, the City of Butuan, represented by its City Mayor Democrito D. Plaza, filed on 28 June 1994 with the trial court a petition for "prohibition, mandamus, injunction with a prayer for preliminary restraining order ex-parte" seeking the declaration of the validity of SP Ordinance No. 962-93 and the prohibition of the registration of tricyclesfor-hire and the issuance of licenses for the driving thereof by the LTO. LTO opposed the prayer in the petition. On 20 March 1995, the trial court rendered a resolution; the dispositive portion read: In view of the foregoing, let a permanent injunctive writ be issued against the respondent Land Transportation Office and the other respondents, prohibiting and enjoining them, their employees, officers, attorney's or other persons acting in their behalf from forcing or compelling Tricycles to be registered with, and drivers to secure their licenses from respondent LTO or secure franchise from LTFRB and from collecting fees thereon. It should be understood that the registration, franchise of tricycles and driver's license/permit granted or issued by the City of Butuan are valid only within the territorial limits of Butuan City. No pronouncement as to costs.6 Petitioners timely moved for a reconsideration of the above resolution but it was to no avail. Petitioners then appealed to the Court of Appeals. In its now

assailed decision, the appellate court, on 17 November 1997, sustained the trial court. It ruled: WHEREFORE, the petition is hereby DISMISSED and the questioned permanent injunctive writ issued by the court a quo dated March 20, 1995 AFFIRMED.7 Coming up to this Court, petitioners raise this sole assignment of error, to wit: The Court of Appeals [has] erred in sustaining the validity of the writ of injunction issued by the trial court which enjoined LTO from (1) registering tricycles-for-hire and (2) issuing licenses for the driving thereof since the Local Government Code devolved only the franchising authority of the LTFRB. Functions of the LTO were not devolved to the LGU's.8 The petition is impressed with merit. The Department of Transportation and Communications9 ("DOTC"), through the LTO and the LTFRB, has since been tasked with implementing laws pertaining to land transportation. The LTO is a line agency under the DOTC whose powers and functions, pursuant to Article III, Section 4 (d) [1],10 of R.A. No. 4136, otherwise known as Land Transportation and Traffic Code, as amended, deal primarily with the registration of all motor vehicles and the licensing of drivers thereof. The LTFRB, upon the other hand, is the governing body tasked by E.O. No. 202, dated 19 June 1987, to regulate the operation of public utility or "for hire" vehicles and to grant franchises or certificates of public convenience ("CPC").11 Finely put, registration and licensing functions are vested in the LTO while franchising and regulatory responsibilities had been vested in the LTFRB. Under the Local Government Code, certain functions of the DOTC were transferred to the LGUs, thusly: Sec. 458. Powers, Duties, Functions and Compensation. xxx xxx xxx

(3) Subject to the provisions of Book II of this Code, enact ordinances granting franchises and authorizing the issuance of permits or licenses, upon such conditions and for such purposes intended to promote the

general welfare of the inhabitants of the city and pursuant to this legislative authority shall: xxx xxx xxx

(VI) Subject to the guidelines prescribed by the Department of Transportation and Communications,regulate the operation of tricycles and grant franchises for the operation thereof within the territorial jurisdiction of the city. (Emphasis supplied). LGUs indubitably now have the power to regulate the operation of tricyclesfor-hire and to grant franchises for the operation thereof. "To regulate" means to fix, establish, or control; to adjust by rule, method, or established mode; to direct by rule or restriction; or to subject to governing principles or laws.12 A franchise is defined to be a special privilege to do certain things conferred by government on an individual or corporation, and which does not belong to citizens generally of common right.13 On the other hand, "to register" means to record formally and exactly, to enroll, or to enter precisely in a list or the like,14 and a "driver's license" is the certificate or license issued by the government which authorizes a person to operate a motor vehicle.15 The devolution of the functions of the DOTC, performed by the LTFRB, to the LGUs, as so aptly observed by the Solicitor General, is aimed at curbing the alarming increase of accidents in national highways involving tricycles. It has been the perception that local governments are in good position to achieve the end desired by the law-making body because of their proximity to the situation that can enable them to address that serious concern better than the national government. It may not be amiss to state, nevertheless, that under Article 458 (a)[3-VI] of the Local Government Code, the power of LGUs to regulate the operation of tricycles and to grant franchises for the operation thereof is still subject to the guidelines prescribed by the DOTC. In compliance therewith, the Department of Transportation and Communications ("DOTC") issued "Guidelines to Implement the Devolution of LTFRBs Franchising Authority over TricyclesFor-Hire to Local Government units pursuant to the Local Government Code." Pertinent provisions of the guidelines state: In lieu of the Land Transportation Franchising and Regulatory Board (LTFRB) in the DOTC, the Sangguniang Bayan/Sangguniang Panglungsod (SB/SP) shall perform the following:

(a) Issue, amend, revise, renew, suspend, or cancel MTOP and prescribe the appropriate terms and conditions therefor; xxx Operating Conditions: 1. For safety reasons, no tricycles should operate on national highways utilized by 4 wheel vehicles greater than 4 tons and where normal speed exceed 40 KPH. However, the SB/SP may provide exceptions if there is no alternative route. 2. Zones must be within the boundaries of the municipality/city. However, existing zones within more than one municipality/city shall be maintained, provided that operators serving said zone shall secure MTOP's from each of the municipalities/cities having jurisdiction over the areas covered by the zone. 3. A common color for tricycles-for-hire operating in the same zone may be imposed. Each unit shall be assigned and bear an identification number, aside from its LTO license plate number. 4. An operator wishing to stop service completely, or to suspend service for more than one month, should report in writing such termination or suspension to the SB/SP which originally granted the MTOP prior thereto. Transfer to another zone may be permitted upon application. 5. The MTOP shall be valid for three (3) years, renewable for the same period. Transfer to another zone, change of ownership of unit or transfer of MTOP shall be construed as an amendment to an MTOP and shall require appropriate approval of the SB/SP. 6. Operators shall employ only drivers duly licensed by LTO for tricycles-for-hire. 7. No tricycle-for-hire shall be allowed to carry more passengers and/or goods than it is designed for. 8. A tricycle-for-hire shall be allowed to operate like a taxi service, i.e., service is rendered upon demand and without a fixed route within a zone.16 xxx xxx

Such as can be gleaned from the explicit language of the statute, as well as the corresponding guidelines issued by DOTC, the newly delegated powers pertain to the franchising and regulatory powers theretofore exercised by the LTFRB and not to the functions of the LTO relative to the registration of motor vehicles and issuance of licenses for the driving thereof. Clearly unaffected by the Local Government Code are the powers of LTO under R.A. No. 4136 requiring the registration of all kinds of motor vehicles "used or operated on or upon any public highway" in the country. Thus Sec. 5. All motor vehicles and other vehicles must be registered. (a) No motor vehicle shall be used or operated on or upon any public highway of the Philippines unless the same is properly registered for the current year in accordance with the provisions of this Act (Article 1, Chapter II, R.A. No. 4136). The Commissioner of Land Transportation and his deputies are empowered at anytime to examine and inspect such motor vehicles to determine whether said vehicles are registered, or are unsightly, unsafe, improperly marked or equipped, or otherwise unfit to be operated on because of possible excessive damage to highways, bridges and other infrastructures.17 The LTO is additionally charged with being the central repository and custodian of all records of all motor vehicles.18 The Court shares the apprehension of the Solicitor General if the above functions were to likewise devolve to local government units; he states: If the tricycle registration function of respondent LTO is decentralized, the incidence of theft of tricycles will most certainly go up, and stolen tricycles registered in one local government could be registered in another with ease. The determination of ownership thereof will also become very difficult. Fake driver's licenses will likewise proliferate. This likely scenario unfolds where a tricycle driver, not qualified by petitioner LTO's testing, could secure a license from one municipality, and when the same is confiscated, could just go another municipality to secure another license. Devolution will entail the hiring of additional personnel charged with inspecting tricycles for road worthiness, testing drivers, and documentation. Revenues raised from tricycle registration may

not be enough to meet salaries of additional personnel and incidental costs for tools and equipment.19 The reliance made by respondents on the broad taxing power of local government units, specifically under Section 133 of the Local Government Code, is tangential. Police power and taxation, along with eminent domain, are inherent powers of sovereignty which the State might share with local government units by delegation given under a constitutional or a statutory fiat. All these inherent powers are for a public purpose and legislative in nature but the similarities just about end there. The basic aim of police power is public good and welfare. Taxation, in its case, focuses an the power of government to raise revenue in order to support its existence and carry out its legitimate objectives. Although correlative to each other in many respects, the grant of one does not necessarily carry with it the grant of the other. The two powers are, by tradition and jurisprudence, separate and distinct powers, varying in their respective concepts, character, scopes and limitations. To construe the tax provisions of Section 133(1) indistinctively would result in the repeal to that extent of LTO's regulatory power which evidently has not been intended. If it were otherwise, the law could have just said so in Section 447 and 458 of Book III of the Local Government Code in the same manner that the specific devolution of LTFRB's power on franchising of tricycles has been provided. Repeal by implication is not favored.20 The power over tricycles granted under Section 458(8)(3)(VI) of the Local Government Code to LGUs is the power to regulate their operation and to grant franchises for the operation thereof. The exclusionary clause contained in the tax provisions of Section 133(1) of the Local Government Code must not be held to have had the effect of withdrawing the express power of LTO to cause the registration of all motor vehicles and the issuance of licenses for the driving thereof. These functions of the LTO are essentially regulatory in nature, exercised pursuant to the police power of the State, whose basic objectives are to achieve road safety by insuring the road worthiness of these motor vehicles and the competence of drivers prescribed by R.A. 4136. Not insignificant is the rule that a statute must not be construed in isolation but must be taken in harmony with the extant body of laws.21 The Court cannot end this decision without expressing its own serious concern over the seeming laxity in the grant of franchises for the operation of tricycles-for-hire and in allowing the indiscriminate use by such vehicles on public highways and principal thoroughfares. Senator Aquilino C. Pimentel, Jr., the principal author and sponsor of the bill that eventually has become to be known as the Local Government Code, has aptly remarked:

Tricycles are a popular means of transportation, specially in the countryside. They are, unfortunately, being allowed to drive along highways and principal thoroughfares where they pose hazards to their passengers arising from potential collisions with buses, cars and jeepneys. The operation of tricycles within a municipality may be regulated by the Sangguniang Bayan. In this connection, the Sangguniang concerned would do well to consider prohibiting the operation of tricycles along or across highways invite collisions with faster and bigger vehicles and impede the flow of traffic.22 The need for ensuring public safety and convenience to commuters and pedestrians alike is paramount. It might be well, indeed, for public officials concerned to pay heed to a number of provisions in our laws that can warrant in appropriate cases an incurrence of criminal and civil liabilities. Thus The Revised Penal Code Art. 208. Prosecution of offenses; negligence and tolerance. The penalty of prision correccional in its minimum period and suspension shall be imposed upon any public officer, or officer of the law, who, in dereliction of the duties of his office, shall maliciously refrain from instituting prosecution for the punishment of violators of the law, or shall tolerate the commission of offenses. The Civil Code Art. 27. Any person suffering material or moral loss because a public servant or employee refuses or neglects, without just cause, to perform his official duty may file an action for damages and other relief against the latter, without prejudice to any disciplinary administrative action that may be taken.
1wphi1.nt

Art. 34. When a member of a city or municipal police force refuses or fails to render aid or protection to any person in case of danger to life or property, such peace officer shall be primarily liable for damages, and the city or municipality shall be subsidiarily responsible therefor. The civil action herein recognized shall be independent of any criminal proceedings, and a preponderance of evidence shall suffice to support such action.

Art. 2189. Provinces, cities and municipalities shall be liable for damages for the death of, or injuries suffered by, any person by reason of the defective condition of roads, streets, bridges, public buildings, and other public works under their control or supervision. The Local Government Code Sec. 24. Liability for Damages. Local government units and their officials are not exempt from liability for death or injury to persons or damage to property. WHEREFORE, the assailed decision which enjoins the Land Transportation Office from requiring the due registration of tricycles and a license for the driving thereof is REVERSED and SET ASIDE. No pronouncements on costs. Let copies of this decision be likewise furnished the Department of Interior and Local Governments, the Department of Public Works and Highways and the Department of Transportation and Communication. SO ORDERED.

DATU FIRDAUSI I.Y. ABBAS, DATU BLO UMPAR ADIONG, DATU MACALIMPOWAC DELANGALEN, CELSO PALMA, ALI MONTANA BABAO, JULMUNIR JANNARAL, RASHID SABER, and DATU JAMAL ASHLEY ABBAS, representing the other taxpayers of Mindanao, petitioners, vs. COMMISSION ON ELECTIONS, and HONORABLE GUILLERMO C. CARAGUE, DEPARTMENT SECRETARY OF BUDGET AND MANAGEMENT, respondents. G.R. No. 89965 November 10, 1989 ATTY. ABDULLAH D. MAMA-O, petitioner, vs. HON. GUILLERMO CARAGUE, in his capacity as the Secretary of the Budget, and the COMMISSION ON ELECTIONS, respondents. Abbas, Abbas, Amora, Alejandro-Abbas & Associates for petitioners in G.R. Nos. 89651 and 89965. Abdullah D. Mama-o for and in his own behalf in 89965.

CORTES, J.: The present controversy relates to the plebiscite in thirteen (13) provinces and nine (9) cities in Mindanao and Palawan, 1 scheduled for November 19, 1989, in implementation of Republic Act No. 6734, entitled "An Act Providing for an Organic Act for the Autonomous Region in Muslim Mindanao." These consolidated petitions pray that the Court: (1) enjoin the Commission on Elections (COMELEC) from conducting the plebiscite and the Secretary of Budget and Management from releasing funds to the COMELEC for that purpose; and (2) declare R.A. No. 6734, or parts thereof, unconstitutional . After a consolidated comment was filed by Solicitor General for the respondents, which the Court considered as the answer, the case was deemed submitted for decision, the issues having been joined. Subsequently, petitioner Mama-o filed a "Manifestation with Motion for Leave to File Reply on Respondents' Comment and to Open Oral Arguments," which the Court noted.

The arguments against R.A. 6734 raised by petitioners may generally be categorized into either of the following: (a) that R.A. 6734, or parts thereof, violates the Constitution, and (b) that certain provisions of R.A. No. 6734 conflict with the Tripoli Agreement. The Tripoli Agreement, more specifically, the Agreement Between the government of the Republic of the Philippines of the Philippines and Moro National Liberation Front with the Participation of the Quadripartie Ministerial Commission Members of the Islamic Conference and the Secretary General of the Organization of Islamic Conference" took effect on December 23, 1976. It provided for "[t]he establishment of Autonomy in the southern Philippines within the realm of the sovereignty and territorial integrity of the Republic of the Philippines" and enumerated the thirteen (13) provinces comprising the "areas of autonomy." 2 In 1987, a new Constitution was ratified, which the for the first time provided for regional autonomy, Article X, section 15 of the charter provides that "[t]here shall be created autonomous regions in Muslim Mindanao and in the Cordilleras consisting of provinces, cities, municipalities, and geographical areas sharing common and distinctive historical and cultural heritage, economic and social structures, and other relevant characteristics within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines." To effectuate this mandate, the Constitution further provides: Sec. 16. The President shall exercise general supervision over autonomous regions to ensure that the laws are faithfully executed. Sec. 17. All powers, functions, and responsibilities not granted by this Constitution or by law to the autonomous regions shall be vested in the National Government. Sec. 18. The Congress shall enact an organic act for each autonomous region with the assistance and participation of the regional consultative commission composed of representatives appointed by the President from a list of nominees from multisectoral bodies. The organic act shall define the basic structure of government for the region consisting of the executive

and representative of the constituent political units. The organic acts shall likewise provide for special courts with personal, family, and property law jurisdiction consistent with the provisions of this Constitution and national laws. The creation of the autonomous region shall be effective when approved by majority of the votes cast by the constituent units in a plebiscite called for the purpose, provided that only the provinces, cities, and geographic areas voting favorably in such plebiscite shall be included in the autonomous region. Sec. 19 The first Congress elected under this Constitution shall, within eighteen months from the time of organization of both Houses, pass the organic acts for the autonomous regions in Muslim Mindanao and the Cordilleras. Sec. 20. Within its territorial jurisdiction and subject to the provisions of this Constitution and national laws, the organic act of autonomous regions shall provide for legislative powers over: (1) Administrative organization; (2) Creation of sources of revenues; (3) Ancestral domain and natural resources; (4) Personal, family, and property relations; (5) Regional urban and rural planning development; (6) Economic, social and tourism development; (7) Educational policies; (8) Preservation and development of the cultural heritage; and (9) Such other matters as may be authorized by law for the promotion of the general welfare of the people of the region. Sec. 21. The preservation of peace and order within the regions shall be the responsibility of the local police agencies which shall

be organized, maintained, supervised, and utilized in accordance with applicable laws. The defense and security of the region shall be the responsibility of the National Government. Pursuant to the constitutional mandate, R.A. No. 6734 was enacted and signed into law on August 1, 1989. 1. The Court shall dispose first of the second category of arguments raised by petitioners, i.e. that certain provisions of R.A. No. 6734 conflict with the provisions of the Tripoli Agreement. Petitioners premise their arguments on the assumption that the Tripoli Agreement is part of the law of the land, being a binding international agreement . The Solicitor General asserts that the Tripoli Agreement is neither a binding treaty, not having been entered into by the Republic of the Philippines with a sovereign state and ratified according to the provisions of the 1973 or 1987 Constitutions, nor a binding international agreement. We find it neither necessary nor determinative of the case to rule on the nature of the Tripoli Agreement and its binding effect on the Philippine Government whether under public international or internal Philippine law. In the first place, it is now the Constitution itself that provides for the creation of an autonomous region in Muslim Mindanao. The standard for any inquiry into the validity of R.A. No. 6734 would therefore be what is so provided in the Constitution. Thus, any conflict between the provisions of R.A. No. 6734 and the provisions of the Tripoli Agreement will not have the effect of enjoining the implementation of the Organic Act. Assuming for the sake of argument that the Tripoli Agreement is a binding treaty or international agreement, it would then constitute part of the law of the land. But as internal law it would not be superior to R.A. No. 6734, an enactment of the Congress of the Philippines, rather it would be in the same class as the latter [SALONGA, PUBLIC INTERNATIONAL LAW 320 (4th ed., 1974), citing Head Money Cases, 112 U.S. 580 (1884) and Foster v. Nelson, 2 Pet. 253 (1829)]. Thus, if at all, R.A. No. 6734 would be amendatory of the Tripoli Agreement, being a subsequent law. Only a determination by this Court that R.A. No. 6734 contravened the Constitution would result in the granting of the reliefs sought. 3 2. The Court shall therefore only pass upon the constitutional questions which have been raised by petitioners. Petitioner Abbas argues that R.A. No. 6734 unconditionally creates an autonomous region in Mindanao, contrary to the aforequoted provisions of the

Constitution on the autonomous region which make the creation of such region dependent upon the outcome of the plebiscite. In support of his argument, petitioner cites Article II, section 1(1) of R.A. No. 6734 which declares that "[t]here is hereby created the Autonomous Region in Muslim Mindanao, to be composed of provinces and cities voting favorably in the plebiscite called for the purpose, in accordance with Section 18, Article X of the Constitution." Petitioner contends that the tenor of the above provision makes the creation of an autonomous region absolute, such that even if only two provinces vote in favor of autonomy, an autonomous region would still be created composed of the two provinces where the favorable votes were obtained. The matter of the creation of the autonomous region and its composition needs to be clarified. Firs, the questioned provision itself in R.A. No. 6734 refers to Section 18, Article X of the Constitution which sets forth the conditions necessary for the creation of the autonomous region. The reference to the constitutional provision cannot be glossed over for it clearly indicates that the creation of the autonomous region shall take place only in accord with the constitutional requirements. Second, there is a specific provision in the Transitory Provisions (Article XIX) of the Organic Act, which incorporates substantially the same requirements embodied in the Constitution and fills in the details, thus: SEC. 13. The creation of the Autonomous Region in Muslim Mindanao shall take effect when approved by a majority of the votes cast by the constituent units provided in paragraph (2) of Sec. 1 of Article II of this Act in a plebiscite which shall be held not earlier than ninety (90) days or later than one hundred twenty (120) days after the approval of this Act: Provided, That only the provinces and cities voting favorably in such plebiscite shall be included in the Autonomous Region in Muslim Mindanao. The provinces and cities which in the plebiscite do not vote for inclusion in the Autonomous Region shall remain the existing administrative determination, merge the existing regions. Thus, under the Constitution and R.A. No 6734, the creation of the autonomous region shall take effect only when approved by a majority of the votes cast by the constituent units in a plebiscite, and only those provinces and cities where a majority vote in favor of the Organic Act shall be included in

the autonomous region. The provinces and cities wherein such a majority is not attained shall not be included in the autonomous region. It may be that even if an autonomous region is created, not all of the thirteen (13) provinces and nine (9) cities mentioned in Article II, section 1 (2) of R.A. No. 6734 shall be included therein. The single plebiscite contemplated by the Constitution and R.A. No. 6734 will therefore be determinative of (1) whether there shall be an autonomous region in Muslim Mindanao and (2) which provinces and cities, among those enumerated in R.A. No. 6734, shall compromise it. [See III RECORD OF THE CONSTITUTIONAL COMMISSION 482-492 (1986)]. As provided in the Constitution, the creation of the Autonomous region in Muslim Mindanao is made effective upon the approval "by majority of the votes cast by the constituent units in a plebiscite called for the purpose" [Art. X, sec. 18]. The question has been raised as to what this majority means. Does it refer to a majority of the total votes cast in the plebiscite in all the constituent units, or a majority in each of the constituent units, or both? We need not go beyond the Constitution to resolve this question. If the framers of the Constitution intended to require approval by a majority of all the votes cast in the plebiscite they would have so indicated. Thus, in Article XVIII, section 27, it is provided that "[t]his Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite held for the purpose ... Comparing this with the provision on the creation of the autonomous region, which reads: The creation of the autonomous region shall be effective when approved by majority of the votes cast by the constituent units in a plebiscite called for the purpose, provided that only provinces, cities and geographic areas voting favorably in such plebiscite shall be included in the autonomous region. [Art. X, sec, 18, para, 2]. it will readily be seen that the creation of the autonomous region is made to depend, not on the total majority vote in the plebiscite, but on the will of the majority in each of the constituent units and the proviso underscores this. for if the intention of the framers of the Constitution was to get the majority of the totality of the votes cast, they could have simply adopted the same phraseology as that used for the ratification of the Constitution, i.e. "the creation of the autonomous region shall be effective when approved by a majority of the votes cast in a plebiscite called for the purpose."

It is thus clear that what is required by the Constitution is a simple majority of votes approving the organic Act in individual constituent units and not a double majority of the votes in all constituent units put together, as well as in the individual constituent units. More importantly, because of its categorical language, this is also the sense in which the vote requirement in the plebiscite provided under Article X, section 18 must have been understood by the people when they ratified the Constitution. Invoking the earlier cited constitutional provisions, petitioner Mama-o, on the other hand, maintains that only those areas which, to his view, share common and distinctive historical and cultural heritage, economic and social structures, and other relevant characteristics should be properly included within the coverage of the autonomous region. He insists that R.A. No. 6734 is unconstitutional because only the provinces of Basilan, Sulu, Tawi-Tawi, Lanao del Sur, Lanao del Norte and Maguindanao and the cities of Marawi and Cotabato, and not all of the thirteen (13) provinces and nine (9) cities included in the Organic Act, possess such concurrence in historical and cultural heritage and other relevant characteristics. By including areas which do not strictly share the same characteristics. By including areas which do not strictly share the same characteristic as the others, petitioner claims that Congress has expanded the scope of the autonomous region which the constitution itself has prescribed to be limited. Petitioner's argument is not tenable. The Constitution lays down the standards by which Congress shall determine which areas should constitute the autonomous region. Guided by these constitutional criteria, the ascertainment by Congress of the areas that share common attributes is within the exclusive realm of the legislature's discretion. Any review of this ascertainment would have to go into the wisdom of the law. This the Court cannot do without doing violence to the separation of governmental powers. [Angara v. Electoral Commission, 63 Phil 139 (1936); Morfe v. Mutuc, G.R. No. L-20387, January 31, 1968, 22 SCRA 424]. After assailing the inclusion of non-Muslim areas in the Organic Act for lack of basis, petitioner Mama-o would then adopt the extreme view that other nonMuslim areas in Mindanao should likewise be covered. He argues that since the Organic Act covers several non-Muslim areas, its scope should be further broadened to include the rest of the non-Muslim areas in Mindanao in order for the other non-Muslim areas denies said areas equal protection of the law, and therefore is violative of the Constitution.

Petitioner's contention runs counter to the very same constitutional provision he had earlier invoked. Any determination by Congress of what areas in Mindanao should compromise the autonomous region, taking into account shared historical and cultural heritage, economic and social structures, and other relevant characteristics, would necessarily carry with it the exclusion of other areas. As earlier stated, such determination by Congress of which areas should be covered by the organic act for the autonomous region constitutes a recognized legislative prerogative, whose wisdom may not be inquired into by this Court. Moreover, equal protection permits of reasonable classification [People v. Vera, 65 Phil. 56 (1963); Laurel v. Misa, 76 Phil. 372 (1946); J.M. Tuason and Co. v. Land tenure Administration, G.R. No. L-21064, February 18, 1970, 31 SCRA 413]. In Dumlao v. Commission on Elections G.R. No. 52245, January 22, 1980, 95 SCRA 392], the Court ruled that once class may be treated differently from another where the groupings are based on reasonable and real distinctions. The guarantee of equal protection is thus not infringed in this case, the classification having been made by Congress on the basis of substantial distinctions as set forth by the Constitution itself. Both petitions also question the validity of R.A. No. 6734 on the ground that it violates the constitutional guarantee on free exercise of religion [Art. III, sec. 5]. The objection centers on a provision in the Organic Act which mandates that should there be any conflict between the Muslim Code [P.D. No. 1083] and the Tribal Code (still be enacted) on the one had, and the national law on the other hand, the Shari'ah courts created under the same Act should apply national law. Petitioners maintain that the islamic law (Shari'ah) is derived from the Koran, which makes it part of divine law. Thus it may not be subjected to any "man-made" national law. Petitioner Abbas supports this objection by enumerating possible instances of conflict between provisions of the Muslim Code and national law, wherein an application of national law might be offensive to a Muslim's religious convictions. As enshrined in the Constitution, judicial power includes the duty to settle actual controversies involving rights which are legally demandable and enforceable. [Art. VIII, Sec. 11. As a condition precedent for the power to be exercised, an actual controversy between litigants must first exist [Angara v. Electoral Commission, supra; Tan v. Macapagal, G.R. No. L-34161, February 29, 1972, 43 SCRA 677]. In the present case, no actual controversy between real litigants exists. There are no conflicting claims involving the application of national law resulting in an alleged violation of religious freedom. This being so, the Court in this case may not be called upon to resolve what is merely a

perceived potential conflict between the provisions the Muslim Code and national law. Petitioners also impugn the constitutionality of Article XIX, section 13 of R.A. No. 6734 which, among others, states: . . . Provided, That only the provinces and cities voting favorably in such plebiscite shall be included in the Autonomous Region in Muslim Mindanao. The provinces and cities which in the plebiscite do not vote for inclusion in the Autonomous Region shall remain in the existing administrative regions:Provided, however, that the President may, by administrative determination, merge the existing regions. According to petitioners, said provision grants the President the power to merge regions, a power which is not conferred by the Constitution upon the President. That the President may choose to merge existing regions pursuant to the Organic Act is challenged as being in conflict with Article X, Section 10 of the Constitution which provides: No province, city, municipality, or barangay may be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the criteria established in the local government code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected. It must be pointed out that what is referred to in R.A. No. 6734 is the merger of administrative regions, i.e. Regions I to XII and the National Capital Region, which are mere groupings of contiguous provinces for administrative purposes [Integrated Reorganization Plan (1972), which was made as part of the law of the land by Pres. dec. No. 1, Pres. Dec. No. 742]. Administrative regions are not territorial and political subdivisions like provinces, cities, municipalities and barangays [see Art. X, sec. 1 of the Constitution]. While the power to merge administrative regions is not expressly provided for in the Constitution, it is a power which has traditionally been lodged with the President to facilitate the exercise of the power of general supervision over local governments [see Art. X, sec. 4 of the Constitution]. There is no conflict between the power of the President to merge administrative regions with the constitutional provision requiring a plebiscite in the merger of local government units because the requirement of a plebiscite in a merger expressly applies only to provinces, cities, municipalities or barangays, not to administrative regions.

Petitioners likewise question the validity of provisions in the Organic Act which create an Oversight Committee to supervise the transfer to the autonomous region of the powers, appropriations, and properties vested upon the regional government by the organic Act [Art. XIX, Secs. 3 and 4]. Said provisions mandate that the transfer of certain national government offices and their properties to the regional government shall be made pursuant to a schedule prescribed by the Oversight Committee, and that such transfer should be accomplished within six (6) years from the organization of the regional government. It is asserted by petitioners that such provisions are unconstitutional because while the Constitution states that the creation of the autonomous region shall take effect upon approval in a plebiscite, the requirement of organizing an Oversight committee tasked with supervising the transfer of powers and properties to the regional government would in effect delay the creation of the autonomous region. Under the Constitution, the creation of the autonomous region hinges only on the result of the plebiscite. if the Organic Act is approved by majority of the votes cast by constituent units in the scheduled plebiscite, the creation of the autonomous region immediately takes effect delay the creation of the autonomous region. Under the constitution, the creation of the autonomous region hinges only on the result of the plebiscite. if the Organic Act is approved by majority of the votes cast by constituent units in the scheduled plebiscite, the creation of the autonomous region immediately takes effect. The questioned provisions in R.A. No. 6734 requiring an oversight Committee to supervise the transfer do not provide for a different date of effectivity. Much less would the organization of the Oversight Committee cause an impediment to the operation of the Organic Act, for such is evidently aimed at effecting a smooth transition period for the regional government. The constitutional objection on this point thus cannot be sustained as there is no bases therefor. Every law has in its favor the presumption of constitutionality [Yu Cong Eng v. Trinidad, 47 Phil. 387 (1925); Salas v. Jarencio, G.R. No. L-29788, August 30, 1979, 46 SCRA 734; Morfe v. Mutuc, supra; Peralta v. COMELEC, G.R. No. L-47771, March 11, 1978, 82 SCRA 30]. Those who petition this Court to declare a law, or parts thereof, unconstitutional must clearly establish the basis for such a declaration. otherwise, their petition must fail. Based on the grounds raised by petitioners to challenge the constitutionality of R.A. No.

6734, the Court finds that petitioners have failed to overcome the presumption. The dismissal of these two petitions is, therefore, inevitable. WHEREFORE, the petitions are DISMISSED for lack of merit. SO ORDERED.

Cordillera Regional Assembly vs COMELEC

The question raised in this petition is whether or not the province of Ifugao, being the only province which voted favorably for the creation of the Cordillera Autonomous Region can, alone, legally and validly constitute such Region. The antecedent facts that gave rise to this petition are as follows: On January 30, 1990, the people of the provinces of Benguet, Mountain Province, Ifugao, Abra and Kalinga-Apayao and the city of Baguio cast their votes in a plebiscite held pursuant to Republic Act No. 6766 entitled "An Act Providing for an Organic Act for the Cordillera Autonomous Region." The official Commission on Elections (COMELEC) results of the plebiscite showed that the creation of the Region was approved by a majority of 5,889 votes in only the Ifugao Province and was overwhelmingly rejected by 148,676 votes in the rest of the provinces and city above-mentioned. Consequently, the COMELEC, on February 14, 1990, issued Resolution No. 2259 stating that the Organic Act for the Region has been approved and/or ratified by majority of the votes cast only in the province of Ifugao. On the same date, the Secretary of Justice issued a memorandum for the President reiterating the COMELEC resolution and provided: ". . . [A]nd considering the proviso in Sec. 13(A) that only the provinces and city voting favorably shall be included in the CAR, the province of Ifugao being the only province which voted favorably then, alone, legally and validly constitutes the CAR." (Rollo, p. 7) As a result of this, on March 8, 1990, Congress enacted Republic Act No. 6861 setting the elections in the Cordillera Autonomous Region of Ifugao on the first Monday of March 1991.
: n ad

Even before the issuance of the COMELEC resolution, the Executive Secretary on February 5, 1990 issued a Memorandum granting authority to wind up the affairs of the Cordillera Executive Board and the Cordillera Regional Assembly created under Executive Order No. 220. On March 9, 1990, the petitioner filed a petition with COMELEC to declare the nonratification of the Organic Act for the Region. The COMELEC merely noted said petition. On March 30, 1990, the President issued Administrative Order No. 160 declaring among others that the Cordillera Executive Board and Cordillera Regional Assembly and all the offices created under Executive Order No. 220 were abolished in view of the ratification of the Organic Act.
- n ad

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

This petition is meritorious. The sole province of Ifugao cannot validly constitute the Cordillera Autonomous Region. It is explicit in Article X, Section 15 of the 1987 Constitution that: "Section 15. There shall be created autonomous regions in Muslim Mindanao and in the Cordillera consisting of provinces, cities, municipalities and geographical areas sharing common and distinctive historical and cultural heritage, economic and social structures, and other relevant characteristics within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines." (Emphasis Supplied) The keywords provinces, cities, municipalities and geographical areas connote that "region" is to be made up of more than one constituent unit. The term "region" used in its ordinary sense means two or more provinces. This is supported by the fact that the thirteen (13) regions into which the Philippines is divided for administrative purposes are groupings of contiguous provinces. (Integrated Reorganization Plan (1972), which was made as part of the law of the land by P.D. No. 1; P.D. No. 742) Ifugao is a province by itself. To become part of a region, it must join other provinces, cities, municipalities, and geographical areas. It joins other units because of their common and distinctive historical and cultural heritage, economic and social structures and other relevant characteristics. The Constitutional requirements are not present in this case.
- n ad

The well-established rule in statutory construction that the language of the Constitution, as much as possible should be understood in the sense it has in common use and that the words used in constitutional provisions are to be given their ordinary meaning except where technical terms are employed, must then, be applied in this case. (See Baranda v. Gustilo, 165 SCRA 757, 770, [1988]; J.M. Tuason & Co., Inc. v. Land Tenure Administration, 31 SCRA 413, 422-423 [1970]). Aside from the 1987 Constitution, a reading of the provisions of Republic Act No. 6766 strengthens the petitioner's position that the Region cannot be constituted from only one province. Article III, Sections 1 and 2 of the Statute provide that the Cordillera Autonomous Region is to be administered by the Cordillera government consisting of the Regional Government and local government units. It further provides that: "SECTION 2. The Regional Government shall exercise powers and functions necessary for the proper governance and development of all provinces, cities, municipalities, and barangay or ili within the Autonomous Region . . ." From these sections, it can be gleaned that Congress never intended that a single province may constitute the autonomous region. Otherwise, we would be faced with the absurd situation of having two sets of officials, a set of provincial officials and another set of regional officials exercising their executive and legislative powers over exactly the same small area. Article V, Sections 1 and 4 of Republic Act 6766 vest the legislative power in the Cordillera Assembly whose members shall be elected from regional assembly districts apportioned among provinces and the cities composing the Autonomous Region.
ch an rob les virt u al law lib rary

If we follow the respondent's position, the members of such Cordillera Assembly shall then be elected only from the province of Ifugao creating an awkward predicament of having two legislative bodies the Cordillera Assembly and the Sangguniang Panlalawigan exercising their legislative powers over the province of Ifugao. And since Ifugao is one of

the smallest provinces in the Philippines, population-wise, it would have too many government officials for so few people.
:-cralaw

Article XII, Section 10 of the law creates a Regional Planning and Development Board composed of the Cordillera Governor, all the provincial governors and city mayors or their representatives, two members of the Cordillera Assembly, and members representing the private sector. The Board has a counterpart in the provincial level called the Provincial Planning and Development Coordinator. The Board's functions (Article XII, Section 10, par. 2, Republic Act No. 6766) are almost similar to those of the Provincial Coordinator's (Title Four, Chapter 3, Article 10, Section 220 (4), Batas Pambansa Blg. 337 Local Government Code). If it takes only one person in the provincial level to perform such functions while on the other hand it takes an entire Board to perform almost the same tasks in the regional level, it could only mean that a larger area must be covered at the regional level. The respondent's theory of the Autonomous Region being made up of a single province must, therefore, fail. Article XXI, Section 13 (B) (c) alloting the huge amount of Ten Million Pesos (P10,000,000.00) to the Regional Government for its initial organizational requirements cannot be construed as funding only a lone and small province. These sections of Republic Act No. 6766 show that a one province Cordillera Autonomous Region was never contemplated by the law creating it. The province of Ifugao makes up only 11% of the total population of the areas enumerated in Article I, Section 2 (b) of Republic Act No. 6766 which include Benguet, Mountain Province, Abra, Kalinga-Apayao and Baguio City. It has the second smallest number of inhabitants from among the provinces and city above mentioned. The Cordillera population is distributed in round figures as follows: Abra, 185,000; Benguet, 486,000; Ifugao, 149,000; Kalinga-Apayao, 214,000; Mountain Province, 116,000; and Baguio City, 183,000; Total population of these five provinces and one city; 1,332,000 according to the 1990 Census (Manila Standard, September 30, 1990, p. 14). There are other provisions of Republic Act No. 6766 which are either violated or which cannot be complied with. Section 16 of Article V calls for a Regional Commission on Appointments with the Speaker as Chairman and are (6) members coming from different provinces and cities in the Region. Under the respondents' view, the Commission would have a Chairman and only one member. It would never have a quorum. Section 3 of Article VI calls for cabinet members, as far as practicable, to come from various provinces and cities of the Region. Section 1 of Article VII creates a system of tribal courts for the various indigenous cultural communities of the Region. Section 9 of Article XV requires the development of a common regional language based upon the various languages and dialects in the region which regional language in turn is expected to enrich the national language. The entirety of Republic Act No. 6766 creating the Cordillera Autonomous Region is infused with provisions which rule against the sole province of Ifugao constituting the Region.
:-cralaw

To contemplate the situation envisioned by the respondent would not only violate the letter and intent of the Constitution and Republic Act No. 6766 but would also be impractical and illogical. Our decision in Abbas, et al. v. COMELEC, (G.R. No. 89651, November 10, 1969), is not applicable in the case at bar contrary to the view of the Secretary of Justice. The Abbas case laid down the rate on the meaning of majority in the phrase "by majority of the votes cast by the constituent units called for the purpose" found in the Constitution, Article X, Section 18. It stated: x x x

". . . [I]t is thus clear that what is required by the Constitution is simple majority of votes approving the Organic Act in individual constituent units and not a double majority of the votes in all constituent units put together, as well as in the individual constituent units." This was the pronouncement applied by the Secretary of Justice in arriving at his conclusion stated in his Memorandum for the President that: x x x ". . . [i]t is believed that the creation of the Cordillera Autonomous Region (CAR) as mandated by R.A. No. 6766 became effective upon its approval by the majority of the votes cast in the province of Ifugao. And considering the proviso in Section 13 (a) that only the provinces and city voting favorably shall be included in the CAR, the province of Ifugao being the only province which voted favorably can, alone, legally and validly constitute the CAR." (Rollo. p. 40). The plebiscites mandated by the Constitution and Republic Act No. 6766 for the Cordillera and Republic Act No. 6734 for the Autonomous Region in Muslim Mindanao determine (1) whether there shall be an autonomous region in the Cordillera and in Muslim Mindanao and (2) which provinces and cities, among those enumerated in the two Republic Acts, shall comprise said Autonomous Regions. (See III, Record of the Constitutional Commission, 487492 [1986]). The Abbas case established the rule to follow on which provinces and cities shall comprise the autonomous region in Muslim Mindanao which is, consequently, the same rule to follow with regard to the autonomous region in the Cordillera. However, there is nothing in the Abbas decision which deals with the issue on whether an autonomous region, in either Muslim Mindanao or Cordillera could exist despite the fact that only one province or one city is to constitute it.
ch anrob les virt u al la w lib rar y

Stated in another way, the issue in this case is whether the sole province of Ifugao can validly and legally constitute the Cordillera Autonomous Region. The issue is not whether the province of Ifugao is to be included in the Cordillera Autonomous Region. It is the first issue which the Court answers in the instant case. WHEREFORE, the petition is hereby GRANTED. Resolution No. 2259 of the Commission on Elections, insofar as it upholds the creation of an autonomous region, the February 14, 1990 memorandum of the Secretary of Justice, the February 5, 1990 memorandum of the Executive Secretary, Administrative Order No. 160, and Republic Act No. 6861 are declared null and void while Executive Order No. 220 is declared to be still in force and effect until properly repealed or amended. SO ORDERED.

G.R. No. 100710 September 3, 1991 BENJAMIN P. ABELLA, petitioner, vs. COMMISSION ON ELECTIONS and ADELINA Y. LARRAZABAL, respondents. G.R. No. 100739 September 3, 1991 ADELINA Y. LARRAZABAL, petitioner, vs. COMMSSION ON ELECTIONS and SILVESTRE DE LA CRUZ, respondents. Sixto S. Brillantes, Jr. for petitioner in 100739. Cesar A. Sevilla for petitioner in 100710. Panganiban, Benitez, Baninaga & Bautista for private respondent S. de la Cruz.

GUTIERREZ, JR., J.:p The main issue in these consolidated petitions centers on who is the rightful governor of the province of Leyte 1) petitioner Adelina Larrazabal (G.R. No. 100739) who obtained the highest number of votes in the local elections of February 1, 1988 and was proclaimed as the duly elected governor but who was later declared by the Commission on Elections (COMELEC) "... to lack both residence and registration qualifications for the position of Governor of Leyte as provided by Art. X, Section 12, Philippine Constitution in relation to Title II, Chapter I, Sec. 42, B.P. Blg. 137 and Sec. 89, R.A. No. 179 and is hereby disqualified as such Governor"; 2) petitioner Benjamin Abella (G.R. No. 100710), who obtained the second highest number of votes for the position of governor but was not allowed by the COMELEC to be proclaimed as governor after the disqualification of Larrazabal; or 3) Leopoldo E. Petilla, the vice-governor of the province of. Leyte. This is the fourth time that the controversy relating to the local elections in February 1, 1988 for governor of the province of Leyte is elevated to this Court. The antecedent facts of these cases are stated in the earlier consolidated cases of BENJAMIN P. ABELLA and SILVESTRE T. DE LA

CRUZ, petitioners, v. ADELINA INDAY LARRAZABAL, PROVINCIAL BOARD OF CANVASSERS OF LEYTE and COMMISSION ON ELECTIONS, respondents (G.R. Nos. 87721-30) and BENJAMN P. ABELLA and SILVESTRE T. DE LA CRUZ, petitioners v. ADELINA LARRAZABAL and COMMISSION ON ELECTIONS, respondents (G. R. No. 88004) 180 SCRA 509 [1989]), to wit: The Court has ordered the consolidation of G.R. Nos 87721-30 and G.R. No. 88004 involving the same parties and the same election in 1988 for the office of provincial governor of Leyte. Challenged in the petitions for certiorari are the resolutions of the respondent Commission on Elections dismissing the preproclamation and disqualification cases filed by the herein petitioners against private respondent Adelina Larrazabal. Petitioner Benjamin P. Abella was the official candidate of the Liberal Party for provincial governor of Leyte in the local election held on February 1, 1988. The private respondent is the wife of Emeterio V. Larrazabal, the original candidate of the Lakas ng Bansa-PDP-Laban who was disqualified by the Commission on Elections on January 18, 1988, for lack of residence. (G.R. No. 88004, Rollo, pp. 102-104) (He filed a petition for certiorari to challenge this resolution. He, however, filed an urgent ex-parte motion to withdraw petition which was granted in a resolution dated January 21, 1988 and the case was dismissed. [G.R. No. 81313]) On January 31, 1988, the day before the election, she filed her own certificate of candidacy in substitution of her husband. (Ibid., p. 48) The following day, at about 9:30 o'clock in the morning, Silvestre de la Cruz, a registered voter of Tacloban City, filed a petition with the provincial election supervisor of Leyte to disqualify her for alleged false statements in her certificate of candidacy regarding her residence. (Id., pp. 113-118) This was immediately transmitted to the main office of the Commission on Elections, which could not function, however, because all but one of its members had not yet been confirmed by the Commission on Appointments. De la Cruz then came to this Court, which issued a temporary restraining order on February 4, 1988, enjoining the provincial board of canvassers of Leyte 'from proclaiming Adelina Larrazabal as the winning candidate for the Office of the Governor in the province of Leyte, in the event that she obtains the winning margin of votes in the canvass of election returns of said

province.' (Id., p. 179) On March 1, 1988, the Commission on Elections having been fully constituted, we remanded the petition thereto for appropriate action, including maintenance or lifting of the Court's temporary restraining order of February 4, 1988. (Id. pp. 182-184) In the meantime, petitioner Abella, after raising various verbal objections (later duly reduced to writing) during the canvass of the election returns, seasonably elevated them to the Commission on Elections in ten separate appeals docketed as SPC Nos. 88-627 to 88627-I. Pending resolution of these cases, Abella intervened on March 7, 1988 in the disqualification case, docketed as SPC No. 88-546, and the following day filed a complaint, with the Law Department of the COMELEC charging the private respondent with falsification and misrepresentation of her residence in her certificate of candidacy. On March 22, 1988, the public respondent consolidated the pre-proclamation and disqualification cases with the Second Division. On February 3, 1989, this Division unanimously upheld virtually all the challenged rulings of the provincial board of canvassers, mostly on the ground that the objection raised were merely formal and did not affect the validity of the returns or the ballots, and ordered the proclamation of the winner after completion of the canvass. (G.R. Nos. 87721-30, Rollo, pp. 18-50) On that same date, the disqualification case was also dismissed by a 2-1 decision, and the matter was referred to the Law Department for 'preliminary investigation for possible violation of Section 74 of the Omnibus Election Code. ' (G.R. Nos. 88004, Rollo, pp. 26-40) The motion for reconsideration of the resolution on the preproclamation cases was denied by the COMELEC en banc on April 13, 1989, with no dissenting vote. (G.R. Nos. 87721-30, Rollo, pp. 51-56) These cases are the subject of G.R. Nos. 87721-30, where we issued on April 18, 1989, another temporary restraining order to the provincial board of canvassers of Leyte to CEASE and DESIST from resuming the canvass of the contested returns and/or from proclaiming private respondent Adelina Larrazabal Governor of Leyte. The motion for reconsideration of the resolution on the qualification case was also denied by the COMELEC en banc on

May 4, 1989, but with three commissioners dissenting. (G.R. No. 88004, Rollo, pp 47-61; penned by Commissioner Abueg, Jr., with Commissioners Africa Rama, and Yorac, dissenting) The dismissal of this case is the subject of G.R. No. 88004. (at pp. 511-513) Disposing of the consolidated petitions, this Court rendered judgment as follows: 1. In G.R.Nos. 87721-30, the decision dated February 3, 1989, the resolution dated April 13, 1989, are affirmed and the petition is DISMISSED. 2. In G.R. No. 88004, the decision dated February 3,1989, and the resolution dated May 4, 1989, are REVERSED and SET ASIDE. Respondent Commission on Elections is ORDERED to directly hear and decide SPC Case No. 88-546 under Section 78 of the Omnibus Election Code, with authority to maintain or lift our temporary restraining order of April 18, 1989, according to its own assessment of the evidence against the private respondent. The parties are enjoined to resolve this case with all possible speed, to the end that the Governor of Leyte may be ascertained and installed without further delay. (p. 520) In view of these rulings, the COMELEC, upon motion of Larrazabal, lifted its temporary restraining order against her proclamation paving Larrazabal's proclamation and her assumption to the Office of Governor of Leyte while the hearings in the disqualification case (SPC No. 88-546) continued. On February 14, 1991, the second division in a 2-1 vote rendered a decision disqualifying Larrazabal as governor. On July 18, 1991, the Commission en banc issued a resolution which denied Larrazabal's motion to declare decision void and/or motion for reconsideration and affirmed the second division's decision. In the same resolution, the Commission disallowed Abella's proclamation as governor of Leyte. Hence, these petitions. We treat the various Comments as Answers and decide the petitions on their merits.

Acting on a most urgent petition (motion) for the issuance of a restraining order filed by petitioner Larrazabal, this Court issued a temporary restraining order on August 1, 1991. xxx xxx xxx ... [E]ffective immediately and continuing until further orders from this Court, ordering the respondent on on Elections to CEASE and DESIST from enforcing, implementing and executing the decision and resolution, respectively dated February 14, 1991 and July 18, 1991. It appearing that despite the filing of this petition before this Court and during its pendency, the incumbent Vice-Governor of Leyte Hon. Leopoldo E. Petilla, took his oath as Provincial Governor of Leyte and assumed the governorship as contained in his telegraphic message, pursuant to COMELEC resolution SPC No. 88-546, promulgated on July 18, 1991, the Court further Resolved to ORDER Hon. Leopoldo E. Petilla to MAINTAIN the status quo ante then prevailing and/or existing before the filing of this petition and to DESIST from assuming the office of the Governor and from discharging the duties and functions thereof. (Rollo-100739, p. 204) In G.R. No. 100739, petitioner Larrazabal professes that the COMELEC completely disregarded our pronouncement in G.R. No. 88004 in that instead of acting on SPC Case No. 88-546 under section 78 of the Election Code, the COMELEC proceeded with a disqualification case not contemplated in G.R. No. 88004. The argument is not meritorious. The questioned decision and resolution of the COMELEC conform with this Court's decision in G.R. No. 88004. Initially, herein respondent Silvestre T. de la Cruz (Benjamin P. Abella, petitioner in G.R. No. 100710 was allowed to intervene in the case) filed a petition with the COMELEC to disqualify petitioner Larrazabal from running as governor of Leyte on the ground that she misrepresented her residence in her certificate of candidacy as Kananga, Leyte. It was alleged that she was in fact a resident of Ormoc City like her husband who was earlier disqualified from running for the same office. The COMELEC dismissed the petition and

referred the case to its Law Department for proper action on the ground that the petition was a violation of Section 74 of the Election Code and, pursuant to it rules, should be prosecuted as an election offense under Section 262 of the Code. This Court reversed and set aside the COMELEC's ruling, to wit: The Court holds that the dismissal was improper. The issue of residence having been squarely raised before it, it should not have been shunted aside to the Law Department for a roundabout investigation of the private respondent's qualification through the filing of a criminal prosecution, if found to be warranted, with resultant disqualification of the accused in case of conviction. The COMELEC should have opted for a more direct and speedy process available under the law, considering the vital public interest involved and the necessity of resolving the question of the earliest possible time for the benefit of the inhabitants of Leyte. In the view of the Court, the pertinent provision is Section 78 in relation to Section 6 of R.A. No. 6646. Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after due notice and hearing, not later than fifteen days before the election. Section 6 of R.A. 6646 states as follows: Effect of Disqualification Case. Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension

of the proclamation of such candidate whenever the evidence of his guilt is strong. ... xxx xxx xxx The above-stressed circumstances should explain the necessity for continuing the investigation of the private respondent's challenged disqualification even after the election notwithstanding that such matter is usually resolved before the election. Independently of these circumstances, such proceedings are allowed by Section 6 of RA. 6646 if for any reason a candidate is not declared by final judgment before an election to be disqualified ... In fine, the Court directed the COMELEC to determine the residence qualification of petitioner Larrazabal in SPC Case No. 88-546. Concomitant with this directive would be the disqualification of petitioner Larrazabal in the event that substantial evidence is adduced that she really lacks the residence provided by law to qualify her to run for the position of governor in Leyte. In line with the Court's directive, the COMELEC conducted hearings in SPC Case No. 88-546 to resolve the qualification of Larrazabal on the basis of two (2) legal issues raised by Silvestre T. de la Cruz namely, Larrazabal's lack of legal residence in the province of Leyte and her not being a registered voter in the province, as required by Title II, Chapter I, Section 42, B.P. Blg. 337, in relation to Article X, Section 12 of the Constitution, to wit: Sec. 42. Qualification. (1) An elective local official must be a citizen of the Philippines, at least twenty-three years of age on election day, a qualified voter registered as such in the barangay, municipality, city or province where he proposes to be elected, a resident therein for at least one year at the time of the filing of his certificate of candidacy, and able to read and write English, Pilipino, or any other local language or dialect. xxx xxx xxx Sec. 12. Cities that are highly urbanized, as determined by law, and component cities whose charters prohibit their voters from voting for provincial elective officials, shall be independent of the province. The voters of component cities within a province, whose

charters contain no such prohibition, shall not be deprived of their right to vote for elective provincial officials. The position of petitioners De la Cruz and Abena was that respondent Larrazabal is neither a resident nor a registered voter of Kananga, Leyte as she claimed but a resident and registered voter of Ormoc City, a component city of the province of Leyte but independent of the province pursuant to Section 12, Article X of the Constitution thereby disqualifying her for the position of governor of Leyte. They presented testimonial as well as documentary evidence to prove their stance. On the other hand, respondent Larrazabal maintained that she was a resident and a registered voter of Kananga, Leyte. She, too presented testimonial as well as documentary evidence to prove her stand. The COMELEC ruled against the respondent, now petitioner Larrazabal. In its questioned decision and resolution, the COMELEC found that petitioner Larrazabal was neither a resident of Kananga, Leyte nor a registered voter thereat. With these findings, the COMELEC disqualified the petitioner as governor of the province of Leyte. The petitioner, however, avers that the COMELEC decision is erroneous when it relied on the provisions of the Family Code to rule that the petitioner lacks the required residence to qualify her to run for the position of governor of Leyte. She opines that under "the Election Law, the matter of determination of the RESIDENCE is more on the principle of INTENTION, the animus revertendi rather than anything else." In this regard she states that ... "her subsequent physical transfer of residence to Ormoc City thereafter, did not necessarily erased (sic) or removed her Kananga residence, for as long as she had the ANIMUS REVERTENDIevidenced by her continuous and regular acts of returning there in the course of the years, although she had physically resided at Ormoc City." (Petition, Rollo, p. 40) As can be gleaned from the questioned decision, the COMELEC based its finding that the petitioner lacks the required residence on the evidence of record to the effect that despite protestations to the contrary made by the petitioner, she has established her residence at Ormoc City from 1975 to the present and not at Kananga, Leyte. Her attempt to purportedly change her residence one year before the election by registering at Kananga, Leyte to

qualify her to ran for the position of governor of the province of Leyte clearly shows that she considers herself already a resident of Ormoc City. In the absence of any evidence to prove otherwise, the reliance on the provisions of the Family Code was proper and in consonance with human experience. The petitioner did not present evidence to show that she and her husband maintain separate residences, she at Kananga, Leyte and her husband at Ormoc City. The second division of the COMELEC in its decision dated February 14, 1991 states: xxx xxx xxx But there is the more fundamental issue of residence. The only indications of a change of residence so far as respondent is concerned are: the address indicated in the application for cancellation filed by respondent indicating her postal address as Kananga, Leyte, the annotation in her Voter's affidavit for Precinct No. 15 that her registration was cancelled due to lack of residence; the testimony of Anastacia Dasigan Mangbanag that she entered into a contract of lease with option to buy with the spouses Emeterio and Inday Larrazabal over two parcels of land the witness owned in Mahawan, Kananga, Leyte; that she sees the spouses in the leased house in Kananga, that she was informed by Inday Larrazabal that the spouses had decided to buy their property because she wanted to beautify the house for their residence. She attached as annex the written contract signed by her and the spouses; and the testimony of Adolfo Larrazabal Exh. "10" cousin of the spouses that 'at a family meeting ... the political plan of the Larrazabal clan was discussed, among which were (sic) the problem of Terry's residence in Ormoc City' and that it was decided in said meeting ... that Inday Larrazabal, wife of Terry, will transfer her Ormoc Registration as a voter to Kananga, Leyte (so) she will be able to vote for Terry and also help me in my candidacy; that they have been staying in Kananga, very often as they have properties in Lonoy and a house in Mahawan. The references to residence in the documents of cancellation and registration are already assessed for their evidentiary value in relation to the documents themselves above. The question must therefore be addressed in relation to the testimony of Anastacia Dasigan Mangbanag and Adolfo V. Larrazabal. The gist of the testimonies is that they leased properties in Mahawan, Leyte and that they are seen in the house on the land leased. But the

contract of lease with option to purchase itself indicates as to where the legal residence of the Jarrazabal is. The pertinent portion states: SPS EMETERIO V. LARRAZABAL AND ADELINA Y. LARRAZABAL, both of legal age, Filipino, andresidents of Ormoc City, Philippines, hereinafter referred to as the LESSEES. The acknowledgment also indicates that Emeterio V. Larrazabal presented his Residence Certificate No. 155774914 issued in Ormoc City. The testimony of Adolfo Larrazabal reenforces this conclusion. It admits, as of the second or third week of November, that the residence of Emeterio Larrazabal was Ormoc City and that Inday Larrazabal was going to transfer her registration so she may be able to vote for him. For the purpose of running for public office, the residence requirement should be read as legal residence or domicile, not any place where a party may have properties and may visit from time to time. The Civil Code is clear that '[F]or the exercise of civil rights and the fulfillment of civil obligations, the domicile of natural persons is the place of their habitual residence. Arts. 68 and 69 of the Family Code, E.O. No. 209 also provide as follows: Art. 68. The husband and wife are obliged to live together, observe mutual love, respect and fidelity, and render mutual help and support. Art. 69. The husband and wife shall fix the family domicile. In case of disagreement, the court shall decide. The court may exempt one spouse from living with the other if the latter should live abroad or there are other valid and compelling reasons for the exemption. However, such exemption shall not apply if the same is not compatible with the solidarity of the family.

Husband and wife as a matter of principle live together in one legal residence which is their usual place of abode. (COMELEC decision, pp. 21-23; Rollo 100710, pp. 67-69; Emphsis supplied) As regards the principle of ANIMUS REVERTENDI we ruled in the case of Faypon v. Quirino, 96 Phil. 294 [1954]): xxx xxx xxx ... [M]ere absence from one's residence or origin-domicile-to pursue studies, engage in business, or practice his avocation, is not sufficient to constitute abandonment or loss of such residence.' ... The determination of a persons legal residence or domicile largely depends upon intention which may be inferred from his acts, activities and utterances. The party who claims that a person has abandoned or left his residence or origin must show and prove pre-ponderantly such abandonment or loss. xxx xxx xxx ... A citizen may leave the place of his birth to look for 'greener pastures' as the saying goes, to improve his life, and that, of course, includes study in other places, practice of his avocation, or engaging in business. When an election is to be held, the citizen who left his birthplace to improve his lot may desire to return to his native town to cast his ballot but for professional or business reasons, or for any other reason, he may not absent himself from the place of his professional or business activities; so there he registers as voter as he has the qualifications to be one and is not willing to give up or lose the opportunity to choose the officials who are to run the government especially in national elections. Despite such registration, the animus revertendi to his home, to his domicile or residence of origin, has not forsaken him. ... (at pp. 297-300) In the instant case, there is no evidence to prove that the petitioner temporarily left her residence in Kananga, Leyte in 1975 to pursue any calling, profession or business. What is clear is that she established her residence in Ormoc City with her husband and considers herself a resident therein. The intention of animus revertendi not to abandon her residence in Kananga, Leyte therefor, is nor present. The fact that she occasionally visits Kananga, Leyte through the years does not signify an intention to continue her

residence therein. It is common among us Filipinos to often visit places where we formerly resided specially so when we have left friends and relatives therein although for intents and purposes we have already transferred our residence to other places. Anent the issue of whether or not the petitioner is a registered voter of Kananga, Leyte, the petitioner insists that she is such a registered voter based on the following antecedents: 1) She cancelled her registration in Ormoc City on November 25, 1987, and 2) she then transferred her registration to Kananga, Leyte on November 25, 1987 by registering thereat and 3) she later voted on election day (February 1, 1988) in Kananga, Leyte. Despite the insistence of the petitioner, the evidence shows that her supposed cancellation of registration in Ormoc City and transfer of registration in Kananga, Leyte, is not supported by the records. As the COMELEC stated: The train of events, which led to respondent's g of her certificate of candidacy on the basis of her registration started on November 25, 1987, when she allegedly filed all application for cancellation of registration Exh. "2-B". Subsequent to this request, her voter's affidavit in Precinct 15, Ormoc City with Serial No. 0918394 J was annotated with the words 'cancelled upon application of the voter due to transfer of residence.' Thereafter, she registered in Precinct No. 17, Mahawan, Kananga, Leyte on November 28,1987 which registration was contained in Voter's Affidavit with Serial No. 0190840-J The cancellation of registration was submitted to the Board of Election Inspectors on January 9, 1988 (Revision Day) on the submission of the sworn application at 4:30 p.m. allegedly by a clerk from the Election Registrar's Office with only the poll clerk and the third member because the Chairman of the Board of Election Inspectors allegedly left earlier and did not come back. Exh. "3-B". We find the version pressed by respondent unworthy of belief. The story is marked by so many bizarre cirumtances not consistent with the ordinary course of events or the natural behavior of persons. Among these are: (1) The application for cancellation of registration by respondent Adelina Y. Larrazabal happened to be misplaced by a clerk in the Election Registrar's Office for Ormoc City so it was not sent to the Board of Election Inspectors in a sealed envelope;

(2) The 'inadverterment' (sic) misplacement was discovered only on January 9,1988; (3) The voter's affidavit was delivered by itself without any endorsement or covering letter from the Election Registrar or anybody else; (4) The election clerk delivered the application for cancellation only towards the last hour of the revision day, allegedly at 4:30 P.M., January 9, 1988; (5) All the members of the Board of Election Inspectors had already signed the Minutes indicating that no revision of the voter's list was made as of 5:00 PM (6) The poll clerk and the third member prepared another minutes stating that the election clerk had delivered the application for cancellation at 4:30 P.M. without any reference to the minutes they had previously signed; (7) Emeterio Larrazabal, who was supposed to have registered in Precinct 17, Mahawan, Kananga, was supposed to have filled up an application for cancellation of his registration in Precinct No. 15, Ormoc City at Precinct 17 concurrent with his registration. His application for cancellation was never submitted in evidence. (8) The serial number of the voter's affidavits of the spouses Larrazabal in Precinct No. 17 are far removed from the serial numbers of the other new registrants in November 28, 1987 in the same precinct. The most telling evidence is the list of voters (Form 2-A), Exh. "G", that the Chairman and the poll clerk had written in Part II of the same, closed by the signatures of both officials showing that there were only nine (9) additional registered voters in Precinct 17, Mahawan, Kananga, Leyte, namely, Bantasan, Merly; Conie; Limosnero Anita; Limosnero W; Pame Virginia; Savenario, Analiza; Verallo, Ofelia; Basan, Juanita; and Acgang Bonifacio. This is consistent with the list of new voters after the November 28, 1987 for Precinct No. 17, Mahawan, Kananga, Leyte submitted by the Election of Kananga to the National Central File of the Commission per certification of the Chief, National Central

File Division on January 25, 1988 dated January 25, 1988, Exh. 'C'. The affidavits submitted by the Election Registrar to the Commission could only have come from the Board of Election Inspectors of Precinct No. 17, after the November 28, 1987 registration, for the Election Registrar could not have had the affidavits of these new registrants apart from those supplied by the Precinct itself. Why were not the affidavits of the Larrazabals included? Was this part of the incredibly bizarre series of inadvertence and neglect that spanned Ormoc City and Kananga? This also explains the certification dated January 29, 1988, of the Election Registrar of Kananga that as of that date Mrs. Adelina Larrazabal was not a registered voter in any of the' precincts in Kananga. Exh. "L". It was only on February 15, 1988, or two weeks after the election day that the same Registrar certified for the first time that there were two voters lists, the first without the names of the Larrazabals and the second, which appeared only after February 1, submitted by the Chairman of the Board for Precinct 17 which contained the spouses Larrazabals' names. It might also be stressed that one set of voter's list Exh. "G" had the signature of both the Chairman, poll clerk and third member of the board, while the one which appeared later which included the names of the Larrazabal had the signature only of the Chairman. Exh. "I". From the certification of the National Central Files, it appears that the Serial Nos. of the newly registered voters were as follows: 0189821-J 018922-J 0189823-J 0189824-J 0189825-J 0189826-J 0189827-J 0189828-J 0189839-J The alleged registration of Emeterio V. Larrazabal and Adelina Y. Larrazabal are inexplicably effected through voter's affidavits with Serial Nos. 0190893J and 01 90840-J. These serial numbers are traced per record of the Commission to Precinct No. 6, municipality of Kananga, Leyte. Per official Project of precincts on file with the Commission, Precinct No. 6 is a poblacion precinct located in Kananga, Municipal High School Building. How these documents came to be used in Precinct No. 17 in Barangay Mahawan and only by the Larrazabals has never been explained. It also takes a lot of straining to believe the story about the effort to cancel registration on November 25, 1987, which application surfaced before the Board of Election inspectors for Precinct No.

15, Ormoc City only on January 9, 1988, Revision Day. As pointed out by Petitioner, it is absurd that it would only be on Revision Day, normally set aside for the purpose of receiving inclusion and exclusion orders from the courts, that the application for cancellation would be coincidentally found and delivered to the Board of Election Inspectors for Precinct 15. Furthermore, the entire membership of the Board of Inspectors for said precinct, signed a Minutes, Exh. "3-A" which indicates that no order of inclusion or exclusion was received from any court and that the board proceeded with the numbering of a total 229 voters for the precinct. The Minutes also indicates that the Board adjourned at 5:00 p.m. Exh. "3-B" which was supposedly prepared after Exh. "3-A" signed only by the poll clerk and third member indicates that at 4:30 P.M. an unidentified clerk from the Election Registrar's Office arrived with the application for cancellation of Vilma Manzano and Adelina Larrazabal. It also appears that on November 28, 1987, the Board of Election Inspectors for Precinct 15, Ormoc City prepared the list of voters for said precinct, Exh. 'N' where the name of Adelina Y. Larrazabal appears as voter No. 96 and Emeterio V. Larrazabal is listed as Voter No. 98. At the back of the list there is a certification that there was no voter which was included by court order and that to voters, one Montero and one Salvame were excluded by virtue of such order. As of January 29, 1988, when the certified true copy of the Voter's List for Precinct 15 was furnished the petitioner, no additional entry was reflected on the list which would show what transpired on January 9, 1988, as alleged by the Election Registrar for Ormoc City and the poll clerk and third member of the board of inspectors that a cancellation was effected. It taxes credulity therefore, to lend belief to Exh. "2-C", when was issued by the City Registrar for Ormoc only on February 1, 1990, which for the first time showed handwritten annotations of cancellation of the registration of Adelina Larrazabal and Vilma Manzano by witnesses Gratol and Patonog. If this evidence did not exist at the time of the entry which purports to have been on January 9, 1988, this evidence could have been used to confront within Carolina Quezon when she testified and identified Exh. "N" on April 14, 1988. In fact if these entries indicating (sic) were made, they would have been evident in Exh. 'W. The failure to confront Quezon with the entries and the late

submission of Exh. "2-C" can only lead to two conclusions: these entries did not exist as of January 29, 1988 when the certification of the list of voters was made and that they were annotated in the voter's list after that date. This is consistent with Exh. "P" which was issued on February 11, 1988. The relative weight of the parties' evidence supports petitioner's thesis that respondent was not a registered voter in Precinct No. 17, Brgy. Mahawan, Kananga, Leyte, and, that she and her husband Emeterio Larrazabal continued to be registered voters in Precinct No. 15, Ormoc City. (Rollo, pp. 62-67; COMELEC decision, pp. 22-27) The Court is bound by these factual findings as they are supported by substantial evidence: In Aratuc v. Commission on Elections (88 SCRA 251), speaking of the need to preserve the 'independence and all the needed concomitant powers' of the Commission on Elections, Justice Antonio P. Barredo declared that it is but proper that the Court should accord the greatest measures of presumption of regularity to its course of action ... to the end it may achieve its designed place in the democratic fabric of our government ... (Abella v. Larrazabal, supra) Failing in her contention that she is a resident and registered voter of Kananga, Leyte, the petitioner poses an alternative position that her being a registered voter in Ormoc City was no impediment to her candidacy for the position of governor of the province of Leyte. Section 12, Article X of the Constitution provides: Cities that are highly urbanized, as determined by law, and component cities whose charters prohibit their voters from voting for provincial elective officials, shall be independent of the province. The voters of component cities within a province, whose charters contain no such prohibition, shall not be deprived of their right to vote for elective provincial officials. Section 89 of Republic Act No. 179 creating the City of Ormoc provides:

Election of provincial governor and members of the Provincial Board of the members of the Provincial Board of the Province of Leyte The qualified voters of Ormoc City shall not be qualified and entitled to vote in the election of the provincial governor and the members of the provincial board of the Province of Leyte. Relating therefore, section 89 of R.A. 179 to section 12, Article X of the Constitution one comes up with the following conclusion: that Ormoc City when organized was not yet a highly-urbanned city but is, nevertheless, considered independent of the province of Leyte to which it is geographically attached because its charter prohibits its voters from voting for the provincial elective officials. The question now is whether or not the prohibition against the 'city's registered voters' electing the provincial officials necessarily mean, a prohibition of the registered voters to be elected as provincial officials. The petitioner citing section 4, Article X of the Constitution, to wit: Sec. 4. The President of the Philippines shall exercise general supervision over local governments. Provinces with respect to component cities and municipalities and cities and municipalities with respect to component barangays, shall ensure that the acts of their component units are within the scope of their prescribed powers and functions. submits that "while a Component City whose charter prohibits its voters from participating in the elections for provincial office, is indeed independent of the province, such independence cannot be equated with a highly urbanized city; rather it is limited to the administrative supervision aspect, and nowhere should it lead to the conclusion that said voters are likewise prohibited from running for the provincial offices." (Petition, p. 29) The argument is untenable. Section 12, Article X of the Constitution is explicit in that aside from highlyurbanized cities, component cities whose charters prohibit their voters from voting for provincial elective officials are independent of the province. In the same provision, it provides for other component cities within a province whose charters do not provide a similar prohibition. Necessarily, component cities like Ormoc City whose charters prohibit their voters from voting for provincial elective officials are treated like highly urbanized cities which are outside the supervisory power of the province to which they are geographically attached. This independence from the province carries with it the prohibition or mandate

directed to their registered voters not to vote and be voted for the provincial elective offices. The resolution in G.R. No. 80716 entitled Peralta v. The Commission on Elections, et al. dated December 10, 1987 applies to this case. While the cited case involves Olongapo City which is classified as a highly urbanized city, the same principle is applicable. Moreover, Section 89 of Republic Act 179, independent of the constitutional provision, prohibits registered voters of Ormoc City from voting and being voted for elective offices in the province of Leyte. We agree with the COMELEC en banc that "the phrase 'shall not be qualified and entitled to vote in the election of the provincial governor and the members of the provincial board of the Province of Leyte' connotes two prohibitions one, from running for and the second, from voting for any provincial elective official." (Resolution En Banc, p. 6) The petitioner takes exception to this interpretation. She opines that such interpretation is "wrong English" since nowhere in the provision is there any reference to a prohibition against running for provincial elective office. She states that if the prohibition to run was indeed intended, the provision should have been phrased "Shall not be qualified TO RUN in the election FOR provincial governor." A comma should have been used after the word qualified and after the word "vote" to clearly indicate that the phrase "in the election of the provincial governor" is modified separately and distinctly by the words "not qualified" and the words "not entitled to vote." (Petition, p. 19) The Court finds the petitioner's interpretation fallacious. In the case of Mapa v. Arroyo (175 SCRA 76 [1989]) this Court interpreted Section 20 of Presidential Decree No. 957 in relation to the conjunction and, to wit: Time of Completion. Every owner or developer shall construct and provide the facilities, improvements, infrastructures and other forms of development, including water supply and lighting facilities, which are offered and indicated in the approved subdivision or condominium plans. ... The Court ruled: We further reject petitioner's strained and tenuous application of the called doctrine of last antecedent in the interpretation of Section 20 and, correlatively, of Section 21. He would thereby

have the enumeration of 'facilities, improvements, infrastructures and other forms of development' interpreted to mean that the demonstrative Phrase 'which are offered and indicated in the approved subdivision plans, etc,' refer only to 'other forms of development' and not to 'facilities, improvements and infrastructures.' While this subserves his purpose, such bifurcation whereby the supposed adjectives phrase is set apart from the antecedent words, is illogical and erroneous. The complete and applicable rule is ad proximum antedecens flat relationisi impediatursentencia (See Black's Law Dictionary, 4th Ed., 57 citing Brown v. Brown, Delta 3 Terry 157, 29 A. 2d 149, 153) Relative words refer to the nearest antecedent, unless it be prevented by the context. In the present case, the employment of the word 'and' between 'facilities, improvements, infrastructures' and 'other forms of development,' far from supporting petitioner's theory, enervates it instead since it is basic in legal hermeneutics that and is not meant to separate words but is a conjunction used to denote a joinder or union. (at pp. 81-83) Applying these principles to the instant case, the conjunction and between the phrase shall not be qualified andentitled to vote refer to two prohibitions as ruled by the COMELEC in relation to the demonstrative phrase "in the election of the provincial governor and the members of the provincial board of the Province of Leyte." Finally, the petitioner contends that the February 14, 1991 decision of the COMELEC's second division is null and void on the ground that on that date, the term of Commissioner Andres Flores, one of the signatories of the majority opinion (vote was 2-1) had already expired on February 2, 1991. (Commissioner Flores was nominated by the President on January 30, 1988 and was confirmed by the Commission on Appointments on February 15, 1988. His term of office was fixed by the President for three years from February 15, 1988 to February 15, 1991.) The petitioner postulates that the President has no power to fix the terms of office of the Commissioners of the COMELEC because the Constitution impliedly fixes such terms of office. With regards to Commissioner Flores, the petitioner professes that Flores' term of three (3) years expired on February 2, 1991 based in section 1(2), Article IX, C, of the Constitution, to wit: xxx xxx xxx

(2) The Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on Appointments for a term of seven years without reappointment. Of those first appointed, three Members shall hold office for seven years, two Members for five years, and the last Members for three years, without reappointment. Any appointment to any vacancy shall be only for the unexpired term of the predecessor. In no case shall any Member be appointed or designated in a temporary or acting capacity. In relation to the Transitory Provision of the 1987 Constitution (Article XVIII) particularly Section 15 thereof, to wit: xxx xxx xxx The incumbent Members of the Civil Service Commission, the Commission on Elections, and the Commission on Audit shall continue in office for one year after the ratification of this Constitution, unless they are sooner removed for cause or become incapacitated to discharge The duties of their office or appointed to a new term thereunder. In no case shall any Member serve longer than seven years including service before the ratification of this Constitution. There is no need to pass upon this constitutional issue raised by the petitioner. The Court ruled in the case ofAlger Electric, Inc. v. Court of Appeals (135 SCRA 37 [1985]): xxx xxx xxx ... This Court does not decide questions of a constitutional nature unless absolutely necessary to a decision of the case. If there exists some other ground based on statute or general law or other grounds of construction, we decide the case on a nonconstitutional determination. (See Burton v. United States, 196 U.S. 283; Siler v. Louisville & Nashville R. Co. 213 U.S. 175; Berea College v. Kentucky 211 U.S. 45.) (at p. 45) Even if we concede that Commissioner Flores' term expired on February 2, 1991, we fail to see how this could validate the holding of an elective office by one who is clearly disqualified from running for that position and the continued exercise of government powers by one without legal authority to do so. The powers of this Court are broad enough to enjoin the violation of constitutional

and statutory provisions by public officers especially where, as in this case, we merely affirm the decision of the COMELEC en banc promulgated at a time when Commissioner Flores was no longer a member. Moreover, under the peculiar circumstances of this case, the decision of the second division of COMELEC would still be valid under the de facto doctrine. Commissioner Flores was appointed for a three-year term from February 15, 1988 to February 15, 1991. In these three years he exercised his duties and functions as Commissioner. Granting in the absence of a statute expressly stating when the terms of the COMELEC Chairman and members commence and expire, that his term expired on February 2, 1991 to enable a faithful compliance with the constitutional provision that the terms of office in the COMELEC are on a staggered basis commencing and ending at fixed intervals, his continuance in office until February 15, 1991 has a color of validity. Therefore, all his official acts from February 3, 1991 to February 15, 1991, are considered valid. The Court ruled in the case of Leyte Acting ViceGovernor Aurelio D. Menzon v. Leyte Acting Governor Leopoldo E. Perilla, et al. G.R. No. 90762, May 20, 1991: And finally, even granting that the President, acting through the Secretary of Local Government, possesses no power to appoint the petitioner, at the very least, the petitioner is a de facto officer entitled to compensation. There is no denying that the petitioner assumed the Office of the Vice-Governor under color of a known appointment. As revealed by the records, the petitioner was appointed by no less than the alter ego of the President, the Secretary of Local Government, after which he took his oath of office before Senator Alberto Romulo in the Office of Department of Local Government Regional Director Res Salvatierra. Concededly, the appointment has the color of validity. Petitioner Benjamin P. Abella in G.R. No. 100710 obtained the second highest number of votes, next to Larrazabal in the local elections of February 1, 1988 in the province of Leyte. The COMELEC en banc, after affirming the February 14, 1991 decision of its second division disqualifying arrazabal as governor disallowed Abella from assuming position of governor in accordance with section 6, Republic Act No. 6646 and the rulings in the cases ofFrivaldo v. Commission on Elections (174 SCRA 245 [1989]) and Labo, Jr. v. Commission on Elections (176 SCRA 1 [1989]).

Abella claims that the Frivaldo and Labo cases were misapplied by the COMELEC. According to him these cases are fundamentally different from SPC No. 88-546 in that the Frivaldo and Labo cases were petitions for a quowarranto filed under section 253 of the Omnibus Code, contesting the eligibility of the respondents after they had been proclaimed duly elected to the Office from which they were sought to be unseated while SPC No. 88-546 which was filed before proclamation under section 78 of the Omnibus Election Code sought to deny due course to Larrazabal's certificate of candidacy for material misrepresentations and was seasonably filed on election day. He, therefore, avers that since under section 6 of Republic Act 6646 it is provided therein that: Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes case for him shall not be counted. the votes cast in favor of Larrazabal who obtained the highest number of votes are not considered counted making her a non-candidate, he, who obtained the second highest number of votes should be installed as regular Governor of Leyte in accordance with the Court's ruling in G.R. No. 88004. The petitioner's arguments are not persuasive. While it is true that SPC No. 88-546 was originally a petition to deny due course to the certificate of candidacy of Larrazabal and was filed before Larrazabal could be proclaimed the fact remains that the local elections of February 1, 1988 in the province of Leyte proceeded with Larrazabal considered as a bona-fide candidate. The voters of the province voted for her in the sincere belief that she was a qualified candidate for the position of governor. Her votes were counted and she obtained the highest number of votes. The net effect is that the petitioner lost in the election. He was repudiated by the electorate. In the Frivaldo and Labo cases, this is precisely the reason why the candidates who obtained the second highest number of votes were not allowed to assume the positions vacated by Frivaldo the governorship of Sorsogon, and Labo, the position of mayor in Baguio City. The nature of the proceedings therefore, is not that compelling. What matters is that in the event a candidate for an elected position who is voted for and who obtains the highest number of votes is disqualified for not possessing the eligibility requirements at the time of the election as provided by law, the candidate who obtains the second highest number of votes for the same position can not assume the vacated position. It should be stressed that in G.R. No. 88004, the Court set aside the dismissal of SPC No. 88-546, and directed the COMELEC to conduct hearings to determine whether or not

Larrazabal was qualified to be a candidate for the position of governor in the province of Leyte. This is the import of the decision in G.R. No. 88004. Thus, the Court ruled in the case of Labo, Jr. v. Commission on Elections: Finally, there is the question of whether or not the private respondent, who filed the quo warranto petition, can replace the petitioner as mayor. He cannot. The simple reason is that as he obtained only the second highest number of votes in the election, he was obviously not the choice of the people of Baguio City. The latest ruling of the Court on this issue is Santos v. Commission on Elections, (137 SCRA 740) decided in 1985. In that case, the candidate who placed second was proclaimed elected after the votes for his winning rival, who was disqualified as a turncoat and considered a non-candidate, were all disregard as stray. In effect, the second placer won by default. That decision was supported by eight members of the Court then, (Cuevas, J., ponente, with Makasiar, Concepcion, Jr., Escolin, Relova, De la Fuente, Alampay and Aquino, JJ., concurring.) with three dissenting (Teehankee, Acting C.J., Abad Santos and MelencioHerrera, JJ.) and another two reserving their vote. (Plana and Gutierrez, Jr., JJ.) One was on official leave. (Fernando, C.J.) Re-examining that decision, the Court finds, and so holds, that it should be reversed in favor of the earlier case of Geronimo v. Ramos, (136 SCRA 435) which represents the more logical and democratic rule. That case, which reiterated the doctrine first announced in 1912 in Topacio v. Paredes, (23 Phil. 238) was supported by ten members of the Court, (Gutierrez, Jr., ponente, with Teehankee, Abad Santos, Melencio-Herrera, Plana, Escolin, Relova, De la Fuente, Cuevas and Alampay, JJ., concurring) without any dissent, although one reserved his vote, (Makasiar, J.) another took no part, (Aquino, J.) and two others were on leave. (Fernando, C.J. and Concepcion, Jr., J.) There the Court held: ... it would be extremely repugnant to the basic concept of the constitutionally guaranteed right to suffrage if a candidate who has not acquired the majority or plurality of votes is proclaimed a winner and imposed as the representative of a constituency,

the majority of which have positively declared through their ballots that they do not choose him. Sound policy dictates that public elective offices are filled by those who have received the highest number of votes cast in the election for that office, and it is a fundamental idea in all republican forms of government that no one can be declared elected and no measure can be declared carried unless he or it receives a majority or plurality of the legal votes cast in the election. (20 Corpus Juris 2nd, S 243, p. 676.) The fact that the candidate who obtained the highest number of votes is later declared to be disqualified or not eligible for the office to which he was elected does not necessarily entitle the candidate who obtained the second highest number of votes to be declared the winner of the elective office. The votes cast for a dead, disqualified, or non-eligible person may not be valid the vote the winner into office or maintain him there. However the absence of a statute which clearly asserts a contrary politics and legislative policy on the matter, if the votes were cast in the sincere belief that the candidate was alive, qualified, or eligible, they should not be treated as stray, void or meaningless. (at pp. 20-21) In sum, the Court does not find any reason to reverse and set aside the questioned decision and resolution of the COMELEC. The COMELEC has not acted without or in excess of jurisdiction or in grave abuse of discretion. WHEREFORE, the instant petitions are DISMISSED. The questioned decision of the second division of the Commission on Elections dated February 14, 1991 and the questioned Resolution en banc of the Commission dated July 18, 1991 are hereby AFFIRMED. The temporary restraining order issued on August 1, 1991 is LIFTED. Costs against the petitioners. SO ORDERED.