Republic of the Philippines

Supreme Court
Manila

EN BANC

RODOLFO G.
NAVARRO, VICTOR F.
BERNAL, and
RENE O. MEDINA,
Petitioners,


- versus


EXECUTIVE SECRETARY EDUARDO
ERMITA, representing the President
of the Philippines; Senate of the
Philippines, represented by the
SENATE PRESIDENT; House of
Representatives, represented by the
HOUSE SPEAKER; GOVERNOR ROBERT
ACE S. BARBERS, representing the
mother province of Surigao del Norte;
GOVERNOR GERALDINE ECLEO
VILLAROMAN, representing the new
Province of Dinagat Islands,
G.R. No. 180050

Present:

PUNO, C.J.,
CARPIO,
CORONA,
CARPIO MORALES,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
Respondents. PEREZ, and
MENDOZA, JJ.

Promulgated:

February 10, 2010
x----------------------------------------------------------------------------------------x

D E C I S I O N


PERALTA, J .:


This is a petition for certiorari under Rule 65 of the Rules of Court seeking
to nullify Republic Act (R.A.) No. 9355, otherwise known as An Act Creating the
Province of Dinagat Islands, for being unconstitutional.

Petitioners Rodolfo G. Navarro, Victor F. Bernal, and Rene O. Medina aver
that they are taxpayers and residents of the Province of Surigao del Norte. They
have served the Province of Surigao del Norte once as Vice- Governor and
members of the Provincial Board, respectively. They claim to have
previously filed a similar petition, which was dismissed on technical
grounds.
[1]
They allege that the creation of the Dinagat Islands as a new province,
if uncorrected, perpetuates an illegal act of Congress, and unjustly deprives the
people of Surigao del Norte of a large chunk of its territory, Internal Revenue
Allocation and rich resources from the area.

The facts are as follows:

The mother province of Surigao del Norte was created and established
under R.A. No. 2786 on June 19, 1960. The province is composed of three main
groups of islands: (1) the Mainland and Surigao City; (2) Siargao Island and Bucas
Grande; and (3) Dinagat Island, which is composed of seven municipalities,
namely, Basilisa, Cagdianao, Dinagat, Libjo, Loreto, San Jose, and Tubajon.

Based on the official 2000 Census of Population and Housing conducted by
the National Statistics Office (NSO),
[2]
the population of the Province of Surigao
del Norte as of May 1, 2000 was 481,416, broken down as follows:

Mainland 281,111
Surigao City 118,534
Siargao Island & Bucas Grande 93,354
Dinagat Island 106,951
Under Section 461 of R.A. No. 7610, otherwise known as The Local
Government Code, a province may be created if it has an average annual income of
not less than P20 million based on 1991 constant prices as certified by the
Department of Finance, and a population of not less than 250,000 inhabitants as
certified by the NSO, or a contiguous territory of at least 2,000 square kilometers
as certified by the Lands Management Bureau. The territory need not be
contiguous if it comprises two or more islands or is separated by a chartered city or
cities, which do not contribute to the income of the province.

On April 3, 2002, the Office of the President, through its Deputy Executive
Secretary for Legal Affairs, advised the Sangguniang Panlalawigan of the
Province of Surigao del Norte of the deficient population in the proposed
Province of Dinagat Islands.
[3]


In July 2003, the Provincial Government of Surigao del Norte conducted a
special census, with the assistance of an NSO District Census Coordinator, in the
Dinagat Islands to determine its actual population in support of the house bill
creating the Province of Dinagat Islands. The special census yielded a population
count of 371,576 inhabitants in the proposed province. The NSO, however, did not
certify the result of the special census. On July 30, 2003, Surigao del Norte
Provincial Governor Robert Lyndon S. Barbers issued Proclamation No. 01,
which declared as official, for all purposes, the 2003 Special Census in Dinagat
Islands showing a population of 371,576.
[4]


The Bureau of Local Government Finance certified that the average annual
income of the proposed Province of Dinagat Islands for calendar year 2002 to
2003 based on the 1991 constant prices wasP82,696,433.23. The land area of the
proposed province is 802.12 square kilometers.
On August 14, 2006 and August 28, 2006, the Senate and the House
of Representatives, respectively, passed the bill creating the Province of Dinagat
Islands. It was approved and enacted into law as R.A. No. 9355 on October 2,
2006 by President Gloria Macapagal-Arroyo.

On December 2, 2006, a plebiscite was held in the mother Province of
Surigao del Norte to determine whether the local government units directly
affected approved of the creation of the Province of Dinagat Islands into a distinct
and independent province comprising the municipalities of Basilisa, Cagdianao,
Dinagat, Libjo (Albor), Loreto, San Jose, and Tubajon. The result of the plebiscite
yielded 69,943 affirmative votes and 63,502 negative votes.
[5]


On December 3, 2006, the Plebiscite Provincial Board of Canvassers
proclaimed that the creation of Dinagat Islands into a separate and distinct
province was ratified and approved by the majority of the votes cast in the
plebiscite.
[6]


On January 26, 2007, a new set of provincial officials took their oath of
office following their appointment by President Gloria Macapagal-Arroyo.
Another set of provincial officials was elected during the synchronized national
and local elections held on May 14, 2007. On July 1, 2007, the elected provincial
officials took their oath of office; hence, the Province of Dinagat Islands began its
corporate existence.
[7]


Petitioners contended that the creation of the Province of Dinagat Islands
under R.A. No. 9355 is not valid because it failed to comply with either
the population or land area requirement prescribed by the Local Government
Code.
Petitioners prayed that R.A. No. 9355 be declared unconstitutional, and
that all subsequent appointments and elections to the new vacant positions in the
newly created Province of Dinagat Islands be declared null and void. They also
prayed for the return of the municipalities of the Province of Dinagat Islands and
the return of the former districts to the mother Province of Surigao del Norte.

Petitioners raised the following issues:

I
WHETHER OR NOT REPUBLIC ACT NO. 9355, CREATING
THE NEW PROVINCE OF DINAGAT ISLANDS, COMPLIED WITH
THE CONSTITUTION AND STATUTORY REQUIREMENTS
UNDER SECTION 461 OF REPUBLIC ACT NO. 7160, OTHERWISE
KNOWN AS THE LOCAL GOVERNMENT CODE OF 1991.


II
WHETHER OR NOT THE CREATION OF DINAGAT AS A
NEW PROVINCE BY THE RESPONDENTS IS AN ACT OF
GERRYMANDERING.


III
WHETHER OR NOT THE RESULT OF THE PLEBISCITE IS
CREDIBLE AND TRULY REFLECTS THE MANDATE OF THE
PEOPLE.
[8]



In her Memorandum, respondent Governor Geraldine B. Ecleo-Villaroman
of the Province of Dinagat Islands raises procedural issues. She contends that
petitioners do not have the legal standing to question the constitutionality of the
creation of the Province of Dinagat, since they have not been directly injured by
its creation and are without substantial interest over the matter in controversy.
Moreover, she alleges that the petition is moot and academic because the existence
of the Province of Dinagat Islands has already commenced; hence, the petition
should be dismissed.


The contention is without merit.

In Coconut Oil Refiners Association, Inc. v. Torres,
[9]
the Court held that in
cases of paramount importance where serious constitutional questions are
involved, the standing requirements may be relaxed and a suit may be allowed to
prosper even where there is no direct injury to the party claiming the right of
judicial review. In the same vein, with respect to other alleged procedural flaws,
even assuming the existence of such defects, the Court, in the exercise of its
discretion, brushes aside these technicalities and takes cognizance of the petition
considering its importance and in keeping with the duty to determine whether the
other branches of the government have kept themselves within the limits of the
Constitution.
[10]


Further, supervening events, whether intended or accidental, cannot prevent
the Court from rendering a decision if there is a grave violation of the
Constitution.
[11]
The courts will decide a question otherwise moot and academic if
it is capable of repetition, yet evading review.
[12]


The main issue is whether or not R.A. No. 9355 violates Section 10, Article
X of the Constitution.

Petitioners contend that the proposed Province of Dinagat Islands is not
qualified to become a province because it failed to comply with the land area or the
population requirement, despite its compliance with the income requirement. It
has a total land area of only 802.12 square kilometers, which falls short of the
statutory requirement of at least 2,000 square kilometers. Moreover, based on the
NSO 2000 Census of Population, the total population of the proposed Province
of Dinagat Islands is only 106,951, while the statutory requirement is a population
of at least 250,000 inhabitants.

Petitioners allege that in enacting R.A. No. 9355 into law, the House of
Representatives and the Senate erroneously relied on paragraph 2 of Article 9 of
the Rules and Regulations Implementing the Local Government Code of 1991,
which states that [t]he land area requirement shall not apply where the proposed
province is composed of one (1) or more islands.
[13]
The preceding italicized
provision contained in the Implementing Rules and Regulations is not expressly or
impliedly stated as an exemption to the land area requirement in Section 461 of the
Local Government Code. Petitioners assert that when the Implementing Rules and
Regulations conflict with the law that they seek to implement, the law prevails.

On the other hand, respondents contend in their respective Memoranda that
the Province of Dinagat Islands met the legal standard for its creation.

First, the Bureau of Local Government Finance certified that the average
annual income of the proposed Province of Dinagat Islands for the years 2002 to
2003 based on the 1991 constant prices wasP82,696,433.25.

Second, the Lands Management Bureau certified that though the land area
of the Province of Dinagat Islands is 802.12 square kilometers, it is composed of
one or more islands; thus, it is exempt from the required land area of 2,000 square
kilometers under paragraph 2 of Article 9 of the Rules and Regulations
Implementing the Local Government Code.

Third, in the special census conducted by the Provincial Government of
Surigao del Norte, with the assistance of a District Census Coordinator of the
NSO, the number of inhabitants in the Province of Dinagat Islands as of 2003, or
almost three years before the enactment of R.A. No. 9355 in 2006, was 371,576,
which is more than the minimum requirement of 250,000 inhabitants.

In his Memorandum, respondent Governor Ace S. Barbers contends that
although the result of the special census conducted by the Provincial Government
of Surigao del Norte on December 2, 2003 was never certified by the NSO, it is
credible since it was conducted with the aid of a representative of the NSO. He
alleged that the lack of certification by the NSO was cured by the presence of NSO
officials, who testified during the deliberations on House Bill No. 884 creating the
Province of Dinagat Islands, and who questioned neither the conduct of the special
census nor the validity of the result.

The Ruling of the Court

The petition is granted.

The constitutional provision on the creation of a province in Section 10,
Article X of the Constitution states:

SEC. 10. No province, city, municipality, or barangay may be created,
divided, merged, abolished, or its boundary substantially altered, except in
accordance with the criteria established in the local government code and
subject to approval by a majority of the votes cast in a plebiscite in the political
units directly affected.
[14]



Pursuant to the Constitution, the Local Government Code of 1991
prescribed the criteria for the creation of a province, thus:

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

(i) a contiguous territory of at least two thousand (2,000)
square kilometers, as certified by the Lands Management
Bureau; or
(ii) a population of not less than two hundred fifty thousand
(250,000) inhabitants as certified by the National Statistics
Office:

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

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

(c) The average annual income shall include the income accruing
to the general fund, exclusive of special funds, trust funds, transfers, and
non-recurring income.
[15]


As a clarification of the territorial requirement, the Local Government Code
requires a contiguous territory of at least 2,000 square kilometers, as certified
by the Lands Management Bureau. However, the territory need not be
contiguous if it comprises two (2) or more islands or is separated
by a chartered city or cities that do not contribute to the income of the
province.

If a proposed province is composed of two or more islands, does
territory, under Sec. 461 of the Local Government Code, include not only the
land mass above the water, but also that which is beneath it?

To answer the question above, the discussion in Tan v. Commission on
Elections (COMELEC)
[16]
is enlightening.


In Tan v. COMELEC, petitioners therein contended that Batas
Pambansa Blg. 885, creating the new Province of Negros del Norte, was
unconstitutional for it was not in accord with Art. XI, Sec. 3 of the Constitution,
and Batas Pambansa Blg. 337, the former Local Government Code. Although
what was applicable then was the 1973 Constitution and the former Local
Government Code, the provisions pertinent to the case are substantially similar to
the provisions in this case.

Art. XI, Sec. 3 of the 1973 Constitution provides:

Sec. 3. No province, city, municipality or barrio (barangay in the 1987
Constitution) may be created, divided, merged, abolished, or its boundary
substantially altered except in accordance with the criteria established in the local
government code, and subject to the approval by a majority of the votes in a
plebiscite in the unit or units affected.


The requisites for the creation of a province in Sec. 197 of Batas Pambansa
Blg. 337 are similar to the requisites in Sec. 461 of the Local Government Code of
1991, but the requirements for population and territory/land area are lower now,
while the income requirement is higher. Sec. 197 of Batas Pambansa Blg. 337, the
former Local Government Code, provides:

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

The average estimated annual income shall include the income allotted for
both the general and infrastructure funds, exclusive of trust funds, transfers and
nonrecurring income.
[17]




In Tan v. COMELEC, petitioners therein filed a case for Prohibition for the
purpose of stopping the COMELEC from conducting the plebiscite scheduled on
January 3, 1986. Since the Court was in recess, it was unable to consider the
petition on time. Petitioners filed a supplemental pleading, averring that the
plebiscite sought to be restrained by them was held as scheduled, but there were
still serious issues raised in the case affecting the legality, constitutionality and
validity of such exercise which should properly be passed upon and resolved by the
Court.

At issue in Tan was the land area of the new Province of Negros del Norte,
and the validity of the plebiscite, which did not include voters of the parent
Province of Negros Occidental, but only those living within the territory of the new
Province of Negros del Norte.

The Court held that the plebiscite should have included the people living in
the area of the proposed new province and those living in the parent province.
However, the Court did not direct the conduct of a new plebiscite, because the
factual and legal basis for the creation of the new province did not exist as it failed
to satisfy the land area requirement; hence, Batas Pambansa Blg. 885, creating the
new Province of Negros del Norte, was declared unconstitutional. The Court found
that the land area of the new province was only about 2,856 square kilometers,
which was below the statutory requirement then of 3,500 square kilometers.

Respondents in Tan insisted that when the Local Government Code speaks
of the required territory of the province to be created, what is contemplated is not
only the land area, but also the land and water over which the said province has
jurisdiction and control. The respondents submitted that in this regard, the
marginal sea within the three mile limit should be considered in determining the
extent of the territory of the new province.

The Court stated that [s]uch an interpretation is strained, incorrect and
fallacious.
[18]
It held:

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

Said sentence states that the "territory need not be contiguous." Contiguous
means (a) in physical contact; (b) touching along all or most of one side; (c) near, [n]ext,
or adjacent (Webster's New World Dictionary, 1972 Ed., p. 307). "Contiguous," when
employed as an adjective, as in the above sentence, is only used when it describes
physical contact, or a touching of sides of two solid masses of matter. The meaning of
particular terms in a statute may be ascertained by reference to words associated with
or related to them in the statute (Animal Rescue League vs. Assessors, 138 A.L.R., p.
110). Therefore, in the context of the sentence above, what need not be "contiguous" is
the "territory" the physical mass of land area. Therewould arise no need for the
legislators to use the word contiguous if they had intended that the term "territory"
embrace not only land area but also territorial waters. It can be safely concluded that
the word territory in the first paragraph of Section 197 is meant to be synonymous
with "land area" only. The words and phrases used in a statute should be given the
meaning intended by the legislature (82 C.J.S., p. 636). The sense in which the words are
used furnished the rule of construction (In re Winton Lumber Co., 63 p. 2d., p. 664).
[19]



The discussion of the Court in Tan on the definition and usage of the terms
territory, and contiguous, and the meaning of the provision, The territory
need not be contiguous if it comprises two or more islands, contained in Sec. 197
of the former Local Government Code, which provides for the requisites in the
creation of a new province, is applicable in this case since there is no reason for a
change in their respective definitions, usage, or meaning in its counterpart
provision in the present Local Government Code contained in Sec. 461 thereof.

The territorial requirement in the Local Government Code is adopted in the
Rules and Regulations Implementing the Local Government Code of 1991
(IRR),
[20]
thus:

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

(1) Income An average annual income of not less
than Twenty Million Pesos (P20,000,000.00) for the immediately
preceding two (2) consecutive years based on 1991 constant prices,
as certified by DOF. The average annual income shall include the
income accruing to the general fund, exclusive of special funds,
special accounts, transfers, and nonrecurring income; and

(2) Population or land area - Population which shall not be
less than two hundred fifty thousand (250,000) inhabitants, as
certified by National Statistics Office; or land area which must be
contiguous with an area of at least two thousand (2,000) square
kilometers, as certified by LMB. The territory need not be
contiguous if it comprises two (2) or more islands or is
separated by a chartered city or cities which do not contribute
to the income of the province. The land area requirement shall
not apply where the proposed province is composed of one (1) or
more islands. The territorial jurisdiction of a province sought to be
created shall be properly identified by metes and bounds.

However, the IRR went beyond the criteria prescribed by Section 461 of
the Local Government Code when it added the italicized portion above stating
that [t]he land area requirement shall not apply where the proposed province is
composed of one (1) or more islands. Nowhere in the Local Government Code is
the said provision stated or implied. Under Section 461 of the Local Government
Code, the only instance when the territorial or land area requirement need not be
complied with is when there is already compliance with the population
requirement. The Constitution requires that the criteria for the creation of a
province, including any exemption from such criteria, must all be written in the
Local Government Code.
[21]
There is no dispute that in case of discrepancy
between the basic law and the rules and regulations implementing the said law,
the basic law prevails, because the rules and regulations cannot go beyond the
terms and provisions of the basic law.
[22]


Hence, the Court holds that the provision in Sec. 2, Art. 9 of the IRR stating
that [t]he land area requirement shall not apply where the proposed province is
composed of one (1) or more islands is null and void.

Respondents, represented by the Office of the Solicitor General, argue that
rules and regulations have the force and effect of law as long as they are germane
to the objects and purposes of the law. They contend that the exemption from the
land area requirement of 2,000 square kilometers is germane to the purpose of the
Local Government Code to develop political and territorial subdivisions into self-
reliant communities and make them more effective partners in the attainment of
national goals.
[23]
They assert that in Holy Spirit Homeowners Association, Inc. v.
Defensor,
[24]
the Court declared as valid the implementing rules and regulations of
a statute, even though the administrative agency added certain provisions in the
implementing rules that were not found in the law.

In Holy Spirit Homeowners Association, Inc. v. Defensor, the provisions in
the implementing rules and regulations, which were questioned by petitioner
therein, merely filled in the details in accordance with a known standard. The law
that was questioned was R.A. No. 9207, otherwise known as National
Government Center (NGC) Housing and Land Utilization Act of 2003. It was
therein declared that the policy of the State [was] to secure the land tenure of the
urban poor. Toward this end, lands located in the NGC, Quezon City shall be
utilized for housing, socioeconomic, civic, educational, religious and other
purposes. Section 5 of R.A. No. 9207 created the National Government Center
Administration Committee, which was tasked to administer, formulate the
guidelines and policies and implement the land disposition of the areas covered by
the law.

Petitioners therein contended that while Sec. 3.2 (a.1) of the IRR fixed the
selling rate of a lot at P700.00 per sq. m., R.A. No. 9207 did not provide for the
price. In addition, Sec. 3.2 (c.1) of the IRR penalizes a beneficiary who fails to
execute a contract to sell within six (6) months from the approval of the
subdivision plan by imposing a price escalation, while there is no such penalty
imposed by R.A. No. 9207. Thus, they conclude that the assailed provisions
conflict with R.A. No. 9207 and should be nullified.

In Holy Spirit Homeowners Association, Inc., the Court held:

Where a rule or regulation has a provision not expressly stated or contained in
the statute being implemented, that provision does not necessarily contradict the
statute. A legislative rule is in the nature of subordinate legislation, designed to
implement a primary legislation by providing the details thereof. All that is required
is that the regulation should be germane to the objects and purposes of the law; that
the regulation be not in contradiction to but in conformity with the standards
prescribed by the law.

In Section 5 of R.A. No. 9207, the Committee is granted the power to
administer, formulate guidelines and policies, and implement the disposition of the
areas covered by the law. Implicit in this authority and the statutes objective of urban
poor housing is the power of the Committee to formulate the manner by which the
reserved property may be allocated to the beneficiaries. Under this broad power,
the Committee is mandated to fill in the details such as the qualifications of
beneficiaries, the selling price of the lots, the terms and conditions governing the sale
and other key particulars necessary to implement the objective of the law. These details
are purposely omitted from the statute and their determination is left to the discretion
of the Committeebecause the latter possesses special knowledge and technical
expertise over these matters.

The Committees authority to fix the selling price of the lots may be likened to
the rate-fixing power of administrative agencies. In case of a delegation of rate-fixing
power, the only standard which the legislature is required to prescribe for the guidance
of the administrative authority is that the rate be reasonable and just. However, it has
been held that even in the absence of an express requirement as to reasonableness, this
standard may be implied. In this regard, petitioners do not even claim that the selling
price of the lots is unreasonable.

The provision on the price escalation clause as a penalty imposed to a
beneficiary who fails to execute a contract to sell within the prescribed period is also
within the Committees authority to formulate guidelines and policies to implement R.A.
No. 9207. The Committee has the power to lay down the terms and conditions
governing the disposition of said lots, provided that these are reasonable and
just. There is nothing objectionable about prescribing a period within which the parties
must execute the contract to sell. This condition can ordinarily be found in a contract to
sell and is not contrary to law, morals, good customs, public order, or public policy.
[25]



Hence, the provisions in the implementing rules and regulations that were
questioned in Holy Spirit Homeowners Association, Inc. merely filled in the
necessary details to implement the objective of the law in accordance with a
known standard, and were thus germane to the purpose of the law.

In this case, the pertinent provision in the IRR did not fill in any detail in
accordance with a known standard provided for by the law. Instead, the
IRR added an exemption to the standard or criteria prescribed by the Local
Government Code in the creation of a province as regards the land area
requirement, which exemption is not found in the Code. As such, the provision
in the IRR that the land area requirement shall not apply where the proposed
province is composed of one or more islands is not in conformity with the
standard or criteria prescribed by the Local Government Code; hence, it is null
and void.

Contrary to the contention of respondents, the extraneous provision
cannot be considered as germane to the purpose of the law to develop territorial
and political subdivisions into self-reliant communities because, in the first place,
it already conflicts with the criteria prescribed by the law in creating a territorial
subdivision.

Further, citing Galarosa v. Valencia,
[26]
the Office of the Solicitor General
contends that the IRRs issued by the Oversight Committee composed of members
of the legislative and executive branches of the government are entitled to great
weight and respect, as they are in the nature of executive construction.

The case is not in point. In Galarosa, the issue was whether or not Galarosa
could continue to serve as a member of the Sangguniang Bayan beyond June 30,
1992, the date when the term of office of the elective members of
the Sangguniang Bayan of Sorsogon expired. Galarosa was the incumbent
president of the Katipunang Bayan or Association of Barangay Councils (ABC) of
the Municipality of Sorsogon, Province of Sorsogon; and was appointed as a
member of the Sangguniang Bayan (SB) of Sorsogon pursuant to Executive Order
No. 342 in relation to Sec. 146 of Batas Pambansa Blg. 337, the former Local
Government Code.

Sec. 494 of the Local Government Code of 1991
[27]
states that the duly
elected presidents of the liga [ng mga barangay] at the municipal, city and
provincial levels, including the component cities and municipalities of
Metropolitan Manila, shall serve as ex officio members of the sangguniang bayan,
sangguniang panglungsod, and sangguniang panlalawigan, respectively. They
shall serve as such only during their term of office as presidents of
the liga chapters which, in no case, shall be beyond the term of office of
the sanggunian concerned. The section, however, does not fix the specific
duration of their term as liga president. The Court held that this was left to the
by-laws of the liga pursuant to Art. 211(g) of the Rules and Regulations
Implementing the Local Government Code of 1991. Moreover, there was no
indication that Secs. 491
[28]
and 494 should be given retroactive effect to adversely
affect the presidents of the ABC; hence, the said provisions were to be applied
prospectively.

The Court stated that there is no law that prohibits ABC presidents from
holding over as members of the Sangguniang Bayan. On the contrary, the IRR,
prepared and issued by the Oversight Committee upon specific mandate of Sec.
533 of the Local Government Code, expressly recognizes and grants the hold-over
authority to the ABC presidents under Art. 210, Rule XXIX.
[29]
The Court upheld
the application of the hold-over doctrine in the provisions of the IRR and the
issuances of the DILG, whose purpose was to prevent a hiatus in the government
pending the time when the successor may be chosen and inducted into office.

The Court held that Sec. 494 of the Local Government Code could not have
been intended to allow a gap in the representation of the barangays, through the
presidents of the ABC, in the sanggunian. Since the term of office of the punong
barangays elected in the March 28, 1989 election and the term of office of the
presidents of the ABC had not yet expired, and taking into account the special
role conferred upon, and the broader powers and functions vested in
the barangays by the Code, it was inferred that the Code never intended to
deprive the barangays of their representation in the sangguniang bayan during
the interregnum when the liga had yet to be formally organized with the election
of its officers.

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

Courts determine the intent of the law from the literal language of the law
within the laws four corners.
[30]
If the language of the law is plain, clear and
unambiguous, courts simply apply the law according to its express terms.
[31]
If a
literal application of the law results in absurdity, impossibility or injustice, then
courts may resort to extrinsic aids of statutory construction like the legislative
history of the law,
[32]
or may consider the implementing rules and regulations and
pertinent executive issuances in the nature of executive construction.

In this case, the requirements for the creation of a province contained in
Sec. 461 of the Local Government Code are clear, plain and unambiguous, and its
literal application does not result in absurdity or injustice. Hence, the provision in
Art. 9(2) of the IRR exempting a proposed province composed of one or more
islands from the land-area requirement cannot be considered an executive
construction of the criteria prescribed by the Local Government Code. It is an
extraneous provision not intended by the Local Government Code and, therefore,
is null and void.

Whether R.A. No. 9355 complied with the requirements of Section
461 of the Local Government Code in creating the Province of
Dinagat I slands

It is undisputed that R.A. No. 9355 complied with the income requirement
specified by the Local Government Code. What is disputed is its compliance with
the land area or population requirement.

R.A. No. 9355 expressly states that the Province of Dinagat Islands
contains an approximate land area of eighty thousand two hundred twelve
hectares (80,212 has.) or 802.12 sq. km., more or less, including Hibuson Island
and approximately forty-seven (47) islets x x x.
[33]
R.A. No. 9355, therefore,
failed to comply with the land area requirement of 2,000 square kilometers.

The Province of Dinagat Islands also failed to comply with the population
requirement of not less than 250,000 inhabitants as certified by the NSO. Based on
the 2000 Census of Population conducted by the NSO, the population of the
Province of Dinagat Islands as of May 1, 2000 was only 106,951.

Although the Provincial Government of Surigao del Norte conducted a
special census of population in Dinagat Islands in 2003, which yielded a
population count of 371,000, the result was not certified by the NSO as required by
the Local Government Code.
[34]
Moreover, respondents failed to prove that with
the population count of 371,000, the population of the original unit (mother
Province of Surigao del Norte) would not be reduced to less than the minimum
requirement prescribed by law at the time of the creation of the new province.
[35]

Respondents contended that the lack of certification by the NSO was cured
by the presence of the officials of the NSO during the deliberations on the house
bill creating the Province of Dinagat Islands, since they did not object to the result
of the special census conducted by the Provincial Government of Surigao del
Norte.

The contention of respondents does not persuade.

Although the NSO representative to the Committee on Local
Government deliberations dated November 24, 2005 did not object to the
result of the provincial governments special census, which was conducted with the
assistance of an NSO district census coordinator, it was agreed by the participants
that the said result was not certified by the NSO, which is the requirement of the
Local Government Code. Moreover, the NSO representative, Statistician II Ma.
Solita C. Vergara, stated that based on their computation, the population
requirement of 250,000 inhabitants would be attained by the Province of Dinagat
Islands by the year 2065. The computation was based on the growth rate of the
population, excluding migration.

The pertinent portion of the deliberation on House Bill No. 884 creating the
Province of Dinagat reads:

THE CHAIRMAN (Hon. Alfredo S. Lim): . . . There is no
problem with the land area requirement and to the income
requirement. The problem is with the population requirement.

x x x x

Now because of this question, we would like to make it of record
the stand and reply of National Statistics Office. Can we hear now from
Ms. Solita Vergara?

MS. VERGARA. We only certify population based on the
counts proclaimed by the President. And in this case, we only certify the
population based on the results of the 2000 census of population and
housing.

THE CHAIRMAN. Is that

MS. VERGARA. Sir, as per Batas Pambansa, BP 72, we only
follow kung ano po yong mandated by the law. So, as mandated by the
law, we only certify those counts proclaimed official by the President.

THE CHAIRMAN. But the government of Surigao del Norte is
headed by Governor Robert Lyndon Ace Barbers and they conducted
this census in year 2003 and yours was conducted in year 2000. So,
within that time frame, three years, there could be an increase in
population or transfer of residents, is that possible?

MS. VERGARA. Yes, sir, but then we only conduct census of
population every 10 years and we conduct special census every five
years. So, in this case, maybe by next year, we will be conducting the
2006.

THE CHAIRMAN. But next year will be quite a long time, the
matter is now being discussed on the table. So, is that the only thing you
could say that its not authorized by National Statistics Office?

MS. VERGARA. Yes, sir. We have passed a resolutionorders
to the provincial officesto our provincial offices stating that we can
provide assistance in the conduct, but then we cannot certify the result of
the conduct as official.

THE CHAIRMAN. May we hear from the Honorable Governor
Robert Lyndon Ace Barbers, your reply on the statement of the
representative from National Statistics Office.

MR. BARBERS. Thank you, Mr. Chairman, good morning.
Yes, your Honor, we have conducted a special census in the year
2003. We were accompanied by one of the employees from the
Provincial National Statistics Office. However, we also admit the fact
that our special census or the special census we conducted in 2003
was not validated or certified by the National Statistics Office, as
provided by law. So, we admit on our part that the certification that I
have issued based on the submission of records of each locality or each
municipality from Dinagat Island[s] were true and correct based on our
level, not on National Statistics Office level.

But with that particular objection of Executive Director Ericta on
what we have conducted, I believe, your Honor, it will be, however,
moot and academic in terms of the provision under the Local
Government Code on the requirements in making one area a province
because what we need is a minimum of 20 million, as stated by the
Honorable Chairman and, of course, the land area. Now, in terms of the
land area, Dinagat Island[s] is exempted because xxx the area is
composed of more than one island. In fact, there are about 47 low tide
and high tide, less than 40? xxxx

THE CHAIRMAN. Thank you, Governor. xxxx

x x x x



THE CHAIRMAN. Although the claim of the governor is, even
if we hold in abeyance this questioned requirement, the other two
requirements, as mandated by law, is already achieved the income and
the land area.

MS. VERGARA. We do not question po the results of any
locally conducted census, kasi po talagang we provide assistance
while theyre conducting their own census. But then, ang
requirement po kasi is, basta we will not certifywe will not certify
any population count as a result noong kanilang locally conducted
census. Eh, sa Local Government Code po, we all know na ang xxx
nire-require nila is a certification provided by National Statistics
Office. Yon po yong requirement, di ba po?

THE CHAIRMAN. Oo. But a certification, even though not
issued, cannot go against actual reality because thats just a bureaucratic
requirement. Ang ibig kong sabihin, ipagpalagay, a couple isang
lalaki, isang babae nagmamahalan sila. As an offshoot of this undying
love, nagkaroon ng mga anak, hindi ba, pero hindi kasal, its a live-in
situation. Ang tanong ko lang, whether eventually, they got married or
not, that love remains. And we cannot deny also the existence of the
offspring out of that love, di ba? Kayayon lang. Okay. So, we just
skip on this.

MS. VERGARA. Your Honor.

REP. ECLEO (GLENDA). Mr. Chairman.

THE CHAIRMAN. Please, Ms. Vergara.

MS. VERGARA. Yong sinasabi nyo po, sir, bale we
computed the estimated population po ng Dinagat Province for the
next years. So, based on our computation, mari-reach po ng
Dinagat Provinceyong requirement na 250,000 population by the
year 2065 pa po based on the growth rates during the period of .

THE CHAIRMAN. 2065?

MS. VERGARA. 2065 po.

xxxx

THE CHAIRMAN. . . . [T]his is not the center of our argument
since, as stated by the governor, kahit ha huwag na munang i-consider
itong population requirement, eh, nakalagpas naman sila doon sa income
and land area, hindi ba?

Okay. Lets give the floor to Congresswoman Ecleo.

REP. ECLEO (GLENDA). Thank you, Mr. Chairman.

This is in connection with the special census. Before this was
done, I went to the NSO. I talked to Administrator Ericta on the
population. Then, I was told that the population, official population
of Dinagat is 106,000. So, I told them that I want a special census to be
conducted because there are so many houses that were not reached by
the government enumerators, and I want to have my own or our own
special census with the help of the provincial government. So, that is
how it was conducted. Then, they told me that the official population of
the proposed province will be on 2010. But at this moment, that is the
official population of 106,000, even if our special census, we came up
with 371,000 plus.

So, that is it.

THE CHAIRMAN. Thank you, Congresswoman.
Your insights will be reflected in my reply to Senate President
Drilon, so that he can also answer the letter of Bishop Cabahug.

MS. VERGARA. Mr. Chairman, may clarifications lang din po
ako.
THE CHAIRMAN. Please.

MS. VERGARA. Yon po sa sinasabi naming estimated
population, we only based the computation doon sa growth rate lang po
talaga, excluding the migration. xxxx

MR. CHAIRMAN. Nong mga residents.

MS. VERGARA. Yes, sir, natural growth lang po talaga
siya.
[36]



To reiterate, when the Dinagat Islands was proclaimed a new province on
December 3, 2006, it had an official population of only 106,951 based on the
NSO 2000 Census of Population. Less than a year after the proclamation of the
new province, the NSO conducted the 2007 Census of Population. The NSO
certified that as of August 1, 2007, Dinagat Islands had a total population of
only 120,813,
[37]
which was still below the minimum requirement of 250,000
inhabitants.
[38]


In fine, R.A. No. 9355 failed to comply with either the territorial or the
population requirement for the creation of the Province of Dinagat Islands.

The Constitution clearly mandates that the creation of local government
units must follow the criteria established in the Local Government Code.
[39]
Any
derogation of or deviation from the criteria prescribed in the Local Government
Code violates Sec. 10, Art. X of the Constitution.
[40]


Hence, R.A. No. 9355 is unconstitutional for its failure to comply with the
criteria for the creation of a province prescribed in Sec. 461 of the Local
Government Code.

Whether the creation of the Province of Dinagat I slands
is an act of gerrymandering

Petitioners contend that the creation of the Province of Dinagat Islands is an
act of gerrymandering on the ground that House Bill No. 884 excluded Siargao
Island, with a population of 118,534 inhabitants, from the new province for
complete political dominance by Congresswoman Glenda Ecleo-
Villaroman. According to petitioners, if Siargao were included in the creation of
the new province, the territorial requirement of 2,000 square kilometers would
have been easily satisfied and the enlarged area would have a bigger population of
200,305 inhabitants based on the 2000 Census of Population by the NSO. But
House Bill No. 884 excluded Siargao Island, because its inclusion would result in
uncertain political control. Petitioners aver that, in the past, Congresswoman
Glenda Ecleo-Villaroman lost her congressional seat twice to a member of an
influential family based in Siargao. Therefore, the only way to complete political
dominance is by gerrymandering, to carve a new province in Dinagat Islands
where the Philippine Benevolent Members Association (PMBA), represented by
the Ecleos, has the numbers.



The argument of petitioners is unsubstantiated.

Gerrymandering is a term employed to describe an apportionment of
representative districts so contrived as to give an unfair advantage to the party in
power.
[41]
Fr. Joaquin G. Bernas, a member of the 1986 Constitutional
Commission, defined gerrymandering as the formation of one legislative
district out of separate territories for the purpose of favoring a candidate or a
party.
[42]
The Constitution proscribes gerrymandering, as it mandates each
legislative district to comprise, as far as practicable, a contiguous, compact and
adjacent territory.
[43]


As stated by the Office of the Solicitor General, the Province of Dinagat
Islands consists of one island and about 47 islets closely situated together, without
the inclusion of separate territories. It is an unsubstantiated allegation that the
province was created to favor Congresswoman Glenda Ecleo-Villaroman.

Allegations of fraud and irregularities during the plebiscite cannot
be resolved in a special civil action for certiorari

Lastly, petitioners alleged that R.A. No. 9355 was ratified by a doubtful
mandate in a plebiscite held on December 2, 2005, where the yes votes
were 69,9343, while the no votes were 63,502. They contend that the 100%
turnout of voters in the precincts of San Jose, Basilisa, Dinagat, Cagdianao and
Libjo was contrary to human experience, and that the results were statistically
improbable. Petitioners admit that they did not file any electoral protest
questioning the results of the plebiscite, because they lacked the means to finance
an expensive and protracted election case.

Allegations of fraud and irregularities in the conduct of a plebiscite are
factual in nature; hence, they cannot be the subject of this special civil action
for certiorari under Rule 65 of the Rules of Court, which is a remedy designed
only for the correction of errors of jurisdiction, including grave abuse of discretion
amounting to lack or excess of jurisdiction.
[44]
Petitioners should have filed the
proper action with the Commission on Elections. However, petitioners admittedly
chose not to avail themselves of the correct remedy.

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

No costs.

SO ORDERED.