ADMIN LAW CREATION AND ALTERATION OF MUNICIPAL CORPORATIONS/LGUS

Title: Navarro v. Ermita G.R. No. 180050 (Resolution)

Date: May 12, 2010
Ponente: Peralta, J.
EXECUTIVE SECRETARY EDUARDO ERMITA, representing
the President of the Philippines; SENATE OF THE
PHILIPPINES, represented by the SENATE PRESIDENT;
RODOLFO G. NAVARRO, VICTOR F. BERNAL, and RENE O. HOUSE OF REPRESENTATIVES, represented by the HOUSE
MEDINA, SPEAKER; GOVERNOR ROBERT ACE S. BARBERS,
petitioners representing the Mother Province of Surigao del Norte;
GOVERNOR GERALDINE ECLEO VILLAROMAN, representing
the new Province of Dinagat Islands,
respondents
FACTS
 Before us are two Motions for Reconsideration of the Decision dated February 10, 2010 − one filed by the Office of
the Solicitor General (OSG) in behalf of public respondents, and the other filed by respondent Governor Geraldine
Ecleo Villaroman, representing the Province of Dinagat Islands.
 The arguments of the movants are similar. The grounds for reconsideration of Governor Villaroman can be subsumed
under the grounds for reconsideration of the OSG, which are as follows:
I. The Province of Dinagat Islands was created in accordance with the provisions of the 1987 Constitution and the
Local Government Code of 1991. Article 9 of the Implementing Rules and Regulations is merely interpretative of
Section 461 of the Local Government Code.
II. The power to create a local government unit is vested with the Legislature. The acts of the Legislature and
Executive in enacting into law RA 9355 should be respected as petitioners failed to overcome the presumption of
validity or constitutionality.
III. Recent and prevailing jurisprudence considers the operative fact doctrine as a reason for upholding the validity
and constitutionality of laws involving the creation of a new local government unit as in the instant case.
 As regards the first ground, the movants reiterate the same arguments in their respective Comments that aside from
the undisputed compliance with the income requirement, Republic Act (R.A.) No. 9355, creating the Province of
Dinagat Islands, has also complied with the population and land area requirements.
 The arguments are unmeritorious and have already been passed upon by the Court in its Decision, ruling that R.A. No.
9355 is unconstitutional, since it failed to comply with either the territorial or population requirement contained in
Section 461 of R.A. No. 7160, otherwise known as the Local Government Code of 1991.
 When the Dinagat Islands was proclaimed a new province on December 3,2006, it had an official population of only
106,951based on the2000 Census of Population conducted by the National Statistics Office (NSO), which population
is short of the statutory requirement of 250,000 inhabitants.
 Although the Provincial Government of Surigao del Norte conducted a special census of population in Dinagat Islands
in 2003, which yielded a population count of 371,000, the result was not certified by the NSO as required by the Local
Government Code. 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.
 Less than a year after the proclamation of the new province, the NSO conducted the2007Census of Population. The
NSO certified that as of August 1, 2007, Dinagat Islands had a total population of only120,813,which was still below
the minimum requirement of 250,000 inhabitants.
 Based on the foregoing, R.A. No. 9355 failed to comply with the population requirement of 250,000 inhabitants as
certified by the NSO.
 Moreover, the land area of the province failed to comply with the statutory requirement of 2,000 square kilometers.
R.A. No. 9355 specifically states that the Province of Dinagat Islands contains an approximate land area of802.12
square kilometers. This was not disputed by the respondent Governor of the Province of Dinagat Islands in her
Comment. She and the other respondents instead asserted that the province, which is composed of more than one
island, is exempted from the land area requirement based on the provision in the Rules and Regulations Implementing
the Local Government Code of 1991 (IRR), specifically paragraph 2 of Article 9which states that [t]he land area
requirement shall not apply where the proposed province is composed of one (1) or more islands. The certificate of
compliance issued by the Lands Management Bureau was also based on the exemption under paragraph 2, Article 9
of the IRR.
 However, the Court held that paragraph 2 of Article 9 of the IRR is null and void, because the exemption is not found
in Section 461 of the Local Government Code. 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.
 The movants now argue that the correct interpretation of Section 461 of the Local Government Code is the one stated
in the Dissenting Opinion of Associate Justice Antonio Eduardo B. Nachura.
 In his Dissenting Opinion, Justice Nachura agrees that R.A. No. 9355 failed to comply with the population requirement.
However, he contends that the Province of Dinagat Islands did not fail to comply with the territorial requirement
because it is composed of a group of islands; hence, it is exempt from compliance not only with the territorial
contiguity requirement, but also with the 2,000-square-kilometer land area criterion in Section 461 of the Local
Government Code.
 He argues that the whole paragraph on contiguity and land area in paragraph (a) (i) above is the one being referred to
in the exemption from the territorial requirement in paragraph (b). Thus, he contends that if the province to be created
is composed of islands, like the one in this case, then, its territory need not be contiguous and need not have an area
of at least 2,000 square kilometers. He asserts that this is because as the law is worded, contiguity and land area are
not two distinct and separate requirements, but they qualify each other. An exemption from one of the two
component requirements in paragraph (a) (i) allegedly necessitates an exemption from the other component
requirement, because the non-attendance of one results in the absence of a reason for the other component
requirement to effect a qualification.
ISSUE/S
Whether or not the one stated in the Dissenting Opinion of Associate Justice Antonio Eduardo B. Nachura is the correct
interpretation of Section 461 of the Local Government Code. NO
RATIO
 It must be emphasized that Section 7 above, which provides for the general rule in the creation of a local government
unit, states in paragraph (c)thereof that the land area must be contiguous and sufficient to provide for such basic
services and facilities to meet the requirements of its populace.
 Therefore, there are two requirements for land area:(1) the land area must be contiguous; and (2) the land area must
be sufficient to provide for such basic services and facilities to meet the requirements of its populace. A sufficient land
area in the creation of a province is at least 2,000 square kilometers, as provided by Section 461 of the Local
Government Code.
 Thus, Section 461 of the Local Government Code, providing the requisites for the creation of a province, specifically
states the requirement of a contiguous territory of at least two thousand (2,000) square kilometers.
 Hence, contrary to the arguments of both movants, the requirement of a contiguous territory and the requirement of
a land area of at least 2,000square kilometers are distinct and separate requirements for land area under paragraph
(a) (i) of Section 461 and Section 7 (c) of the Local Government Code.
 However, paragraph (b) of Section 461 provides two instances of exemption from the requirement of territorial
contiguity, thus:
o (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.
 Contrary to the contention of the movants, the exemption above pertains only to the requirement of territorial
contiguity. It clearly states that the requirement of territorial contiguity may be dispensed with in the case of a
province comprising two or more islands, or is separated by a chartered city or cities which do not contribute to the
income of the province.
 Nowhere in paragraph (b) is it expressly stated or may it be implied that when a province is composed of two or more
islands, or when the territory of a province is separated by a chartered city or cities, such province need not comply
with the land area requirement of at least 2,000 square kilometers or the requirement in paragraph (a) (i) of Section
461 of the Local Government Code.
 Where the law is free from ambiguity, the court may not introduce exceptions or conditions where none is provided
from considerations of convenience, public welfare, or for any laudable purpose; neither may it engraft into the law
qualifications not contemplated, nor construe its provisions by taking into account questions of expediency, good
faith, practical utility and other similar reasons so as to relax non-compliance therewith. Where the law speaks in clear
and categorical language, there is no room for interpretation, but only for application.
 Moreover, the OSG contends that since the power to create a local government unit is vested with the Legislature,
the acts of the Legislature and the Executive branch in enacting into law R.A. No. 9355 should be respected as
petitioners failed to overcome the presumption of validity or constitutionality.
 The contention lacks merit. As the law-making branch of the government, indeed, it was the Legislature that imposed
the criteria for the creation of a province as contained in Section 461 of the Local Government Code. No law has yet
been passed amending Section 461 of the Local Government Code, so only the criteria stated therein are the bases
for the creation of a province. The Constitution clearly mandates that the criteria in the Local Government Code must
be followed in the creation of a province; hence, any derogation of or deviation from the criteria prescribed in the
Local Government Code violates Section 10, Article X of the Constitution.
 Contrary to the contention of the movants, the evidence on record proved that R.A. No. 9355 failed to comply with
either the population or territorial requirements prescribed in Section 461 of the Local Government Code for the
creation of the Province of Dinagat Islands; hence, the Court declared R.A. No. 9355 unconstitutional.
 SC now looked at the central policy considerations in the creation of provinces. They compared the LGC provisions on
the creation of municipalities and cities and how they allow an exception to the land area requirement in cases of non-
contiguity as provided for under Sections 442 and 450 of the LGC.SC concluded that it must have been the intent of
the legislators to extend such exception to provinces especially considering the physical configuration of the Philippine
archipelago. In fact, while such exemption was absent under Section 461 of the LGC (provision relating to creation of
provinces), such was incorporated under the LGC-IRR thus correcting the congressional oversight in said provision and
reflecting the true legislative intent. Moreover, the earlier decisions show a very restrictive construction which could
trench on the equal protection clause, as it actually defeats the purpose of local autonomy and decentralization as
enshrined in the Constitution. Hence, the land area requirement should be read together with territorial contiguity.
RULING
WHEREFORE, in view of the foregoing, the Motions for Reconsideration of the Decision dated February 10, 2010 are
hereby DENIED for lack of merit.
NOTES
 Section 7, Chapter 2 (entitled General Powers and Attributes of Local Government Units) of the Local Government
Code provides:
o SEC. 7.Creation and Conversion. As a general rule, the creation of a local government unit or its conversion from
one level to another level shall be based on verifiable indicators of viability and projected capacity to provide
services, to wit:
(a) Income. It must be sufficient, based on acceptable standards, to provide for all essential government
facilities and services and special functions commensurate with the size of its population, as expected of
the local government unit concerned;
(b) Population. It shall be determined as the total number of inhabitants within the territorial jurisdiction of
the local government unit concerned; and
(c) Land area. It must be contiguous, unless it comprises two (2) or more islands, or is separated by a local
government unit independent of the others; properly identified by metes and bounds with technical
descriptions; and sufficient to provide for such basic services and facilities to meet the requirements of its
populace.
Compliance with the foregoing indicators shall be attested to by the Department of Finance (DOF), the National
Statistics Office (NSO), and the Lands Management Bureau (LMB) of the Department of Environment and
Natural Resources (DENR).
 Section 461 of the LGC in Title IV: The Province:
o Section 461. Requisites for Creation.
(a) A province may be created if it has an average annual income, as certified by the Department of Finance,
of not less than Twenty million pesos (P20,000,000.00) based on 1991 constant prices and either of the
following requisites:
(i) a contiguous territory of at least two thousand (2,000) square kilometers, as certified by the Lands
Management Bureau; or
(ii) a population of not less than two hundred fifty thousand (250,000) inhabitants as certified by the
National Statistics Office:
Provided, That, the creation thereof shall not reduce the land area, population, and income of the original
unit or units at the time of said creation to less than the minimum requirements prescribed herein.
(b) The territory need not be contiguous if it comprise 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.
 Section 442 of the LGC in Title II: The Municipality:
 o Section 442. Requisites for Creation. -
(a) A municipality may be created if it has an average annual income, as certified by the provincial treasurer,
of at least Two million five hundred thousand pesos (P2,500,000.00) for the last two (2) consecutive years
based on the 1991 constant prices; a population of at least twenty-five thousand (25,000) inhabitants as
certified by the National Statistics Office; and a contiguous territory of at least fifty (50) square kilometers
as certified by the Lands Management Bureau: Provided, That the creation thereof shall not reduce the
land area, population or income of the original municipality or municipalities at the time of said creation to
less than the minimum requirements prescribed herein.
(b) The territorial jurisdiction of a newly-created municipality shall be properly identified by metes and bounds.
The requirement on land area shall not apply where the municipality proposed to be created is composed
of one (1) or more islands. The territory need not be contiguous if it comprises two (2) or more islands.
(c) The average annual income shall include the income accruing to the general fund of the municipality
concerned, exclusive of special funds, transfers and non-recurring income.
(d) Municipalities existing as of the date of the effectivity of this Code shall continue to exist and operate as
such. Existing municipal districts organized pursuant to presidential issuances or executive orders and which
have their respective set of elective municipal officials holding office at the time of the effectivity of this
Code shall henceforth be considered as regular municipalities.
 Section 450 of the LGC in Title III: The City:
o Section 450. Requisites for Creation.
(a) A municipality or a cluster of barangays may be converted into a component city if it has an average annual
income, as certified by the Department of Finance, of at least Twenty million (P20,000,000.00) for the last
two (2) consecutive years based on 1991 constant prices, and if it has either of the following requisites:
(i) a contiguous territory of at least one hundred (100) square kilometers, as certified by the Lands
Management Bureau; or
(ii) a population of not less than one hundred fifty thousand (150,000) inhabitants, as certified by the
National Statistics Office:
Provided, That, the creation thereof shall not reduce the land area, population, and income of the original
unit or units at the time of said creation to less than the minimum requirements prescribed herein.
(b) The territorial jurisdiction of a newly-created city shall be properly identified by metes and bounds. The
requirement on land area shall not apply where the city proposed to be created is composed of one (1) or
more islands. The territory need not be contiguous if it comprises two (2) or more islands.
(c) The average annual income shall include the income accruing to the general fund, exclusive of specific
funds, transfers, and non-recurring income.
(SANTOS, 2B 2017-2018)