Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 180050 February 10, 2010

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

vs.
EXECUTIVE SECRETARY EDUARDO ERMITA, representing the President of the Philippines;
Senate of the Philippines, represented by the SENATE PRESIDENT; House of
Representatives, represented by the HOUSE SPEAKER; GOVERNOR ROBERT ACE S.
BARBERS, representing the mother province of Surigao del Norte; GOVERNOR GERALDINE
ECLEO VILLAROMAN, representing the new Province of Dinagat Islands,Respondents.

DECISION

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),2the 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 ₱20 million based on 1991
constant prices as certified by the Department of Finance, and a population of not less than 250,000
inhabitants as certified by the NSO, or a contiguous territory of at least 2,000 square kilometers as
certified by the Lands Management Bureau. The territory need not be contiguous if it comprises two
or more islands or is separated by a chartered city or cities, which do not contribute to the income of
the province.

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

In July 2003, the Provincial Government of Surigao del Norte conducted a special census, with the
assistance of an NSO District Census Coordinator, in the Dinagat Islands to determine its actual
population in support of the house bill creating the Province of Dinagat Islands. The special census
yielded a population count of 371,576 inhabitants in the proposed province. The NSO, however, did
not certify the result of the special census. On July 30, 2003, Surigao del Norte Provincial Governor
Robert Lyndon S. Barbers issued Proclamation No. 01, which declared as official, for all purposes,
the 2003 Special Census in Dinagat Islands showing a population of 371,576.4

The Bureau of Local Government Finance certified that the average annual income of the proposed
Province of Dinagat Islands for calendar year 2002 to 2003 based on the 1991 constant prices was
₱82,696,433.23. 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:

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.
1avv phi 1

First, the Bureau of Local Government Finance certified that the average annual income of the
proposed Province of Dinagat Islands for the years 2002 to 2003 based on the 1991 constant prices
was ₱82,696,433.25.

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
(₱20,000,000.00) based on 1991 constant prices and either of the following requisites:

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

certified by the Lands Management Bureau; or

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

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

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

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

As a clarification of the territorial requirement, the Local Government Code requires

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

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

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

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

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

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

The requisites for the creation of a province in Sec. 197 of Batas Pambansa Blg. 337 are similar to
the requisites in Sec. 461 of the Local Government Code of 1991, but the requirements for
population and territory/land area are lower now, while the income requirement is higher. Sec. 197 of
Batas Pambansa Blg. 337, the former Local Government Code, provides:
SEC. 197.—Requisites for Creation.—A province may be created if it has a territory of at least three
thousand five hundred square kilometers, a population of at least five hundred thousand persons, an
average estimated annual income, as certified by the Ministry of Finance, of not less than ten million
pesos for the last three consecutive years, and its creation shall not reduce the population and
income of the mother province or provinces at the time of said creation to less than the minimum
requirements under this section. The territory need not be contiguous if it comprises two or more
islands.

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

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

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

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

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

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

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

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

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

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

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

(1) Income — An average annual income of not less than Twenty Million Pesos
(₱20,000,000.00) for the immediately preceding two (2) consecutive years based on 1991
constant prices, as certified by DOF. The average annual income shall include the income
accruing to the general fund, exclusive of special funds, special accounts, transfers, and
nonrecurring income; and

(2) Population or land area - Population which shall not be less than two hundred fifty
thousand (250,000) inhabitants, as certified by 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
₱700.00 per sq. m., R.A. No. 9207 did not provide for the price. In addition, Sec. 3.2 (c.1) of the IRR
penalizes a beneficiary who fails to execute a contract to sell within six (6) months from the approval
of the subdivision plan by imposing a price escalation, while there is no such penalty imposed by
R.A. No. 9207. Thus, they conclude that the assailed provisions conflict with R.A. No. 9207 and
should be nullified.

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

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

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

The Committee’s authority to fix the selling price of the lots may be likened to the rate-fixing power of
administrative agencies. In case of a delegation of rate-fixing power, the only standard which the
legislature is required to prescribe for the guidance of the administrative authority is that the rate be
reasonable and just. However, it has been held that even in the absence of an express requirement
as to reasonableness, this standard may be implied. In this regard, petitioners do not even claim that
the selling price of the lots is unreasonable.
The provision on the price escalation clause as a penalty imposed to a beneficiary who fails to
execute a contract to sell within the prescribed period is also within the Committee’s authority to
formulate guidelines and policies to implement R.A. No. 9207. The Committee has the power to lay
down the terms and conditions governing the disposition of said lots, provided that these are
reasonable and just. There is nothing objectionable about prescribing a period within which the
parties must execute the contract to sell. This condition can ordinarily be found in a contract to sell
and is not contrary to law, morals, good customs, public order, or public policy.25

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

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

Contrary to the contention of respondents, the extraneous provision cannot be considered as

germane to the purpose of the law to develop territorial and political subdivisions into self-reliant
communities because, in the first place, it already conflicts with the criteria prescribed by the law in
creating a territorial subdivision.

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

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

Sec. 494 of the Local Government Code of 199127 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. 49128 and 494 should be given
retroactive effect to adversely affect the presidents of the ABC; hence, the said provisions were to be
applied prospectively.

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

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

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

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

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

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

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

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

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

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

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

The contention of respondents does not persuade.

Although the NSO representative to the Committee on Local Government deliberations dated
November 24, 2005 did not object to the

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

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

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

xxxx

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

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

THE CHAIRMAN. Is that…

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

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

MS. VERGARA. Yes, sir, but then we only conduct census of population every 10 years and
we conduct special census every five years. So, in this case, maybe by next year, we will be
conducting the 2006.
THE CHAIRMAN. But next year will be quite a long time, the matter is now being discussed
on the table. So, is that the only thing you could say that it’s not authorized by National
Statistics Office?

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

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

MR. BARBERS. Thank you, Mr. Chairman, good morning.

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

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

THE CHAIRMAN. Thank you, Governor. xxxx

xxxx

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

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

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

REP. ECLEO (GLENDA). Mr. Chairman.

THE CHAIRMAN. Please, Ms. Vergara.

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

THE CHAIRMAN. 2065?

MS. VERGARA. 2065 po.

xxxx

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

Okay. Let’s give the floor to Congresswoman Ecleo.

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

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

So, that is it.

THE CHAIRMAN. Thank you, Congresswoman.

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

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

THE CHAIRMAN. Please.

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

MR. CHAIRMAN. No’ng mga residents.

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

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

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

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

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

Whether the creation of the Province of Dinagat Islands is an act of gerrymandering

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

The argument of petitioners is unsubstantiated.

"Gerrymandering" is a term employed to describe an apportionment of representative districts so

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

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

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

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

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

No costs.

SO ORDERED.

DIOSDADO M. PERALTA
Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice

ANTONIO T. CARPIO RENATO C. CORONA

Associate Justice Associate Justice

CONCHITA CARPIO MORALES PRESBITERO J. VELASCO, JR.

Associate Justice Associate Justice

ANTONIO EDUARDO B. NACHURA TERESITA J. LEONARDO-DE CASTRO

Associate Justice Associate Justice

ARTURO D. BRION LUCAS P. BERSAMIN

Associate Justice Associate Justice

MARIANO C. DEL CASTILLO ROBERTO A. ABAD

Associate Justice Associate Justice
 MARTIN S. VILLARAMA, JR. JOSE P. PEREZ
Associate Justice Associate Justice

JOSE C. MENDOZA
Associate Justice

CERTIFICATION

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

REYNATO S. PUNO
Chief Justice