EN BANC

[G.R. No. 180050. May 12, 2010.]

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

petitioners, vs . EXECUTIVE SECRETARY EDUARDO ERMITA,
representing the President of the Philippines; SENATE OF THE
PHILIPPINES, represented by the SENATE PRESIDENT; HOUSE OF
REPRESENTATIVES, represented by the HOUSE SPEAKER;
GOVERNOR ROBERT ACE S. BARBERS, representing the Mother
Province of Surigao del Norte; GOVERNOR GERALDINE ECLEO
VILLAROMAN, representing the new Province of Dinagat Islands ,
respondents.

RESOLUTION

PERALTA , J : p

Before us are two Motions for Reconsideration of the Decision dated February
10, 2010 — one led by the O ce of the Solicitor General (OSG) in behalf of public
respondents, and the other led by respondent Governor Geraldine Ecleo Villaroman,
representing the Province of Dinagat Islands. The dispositive portion of the Decision
reads:
W HE R E F O R E , the petition is G R A N T E D . 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 o cials thereof are declared N U L L a n d V O I D . The
provision in Article 9 (2) of the Rules and Regulations Implementing the Local
Government Code of 1991 stating, "The land area requirement shall not apply
where the proposed province is composed of one (1) or more islands," is declared
NULL and VOID.

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

The Province of Dinagat Islands was created in accordance with the

provisions of the 1987 Constitution and the Local Government Code of 1991.
Article 9 of the Implementing Rules and Regulations is merely interpretative of
Section 461 of the Local Government Code.

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

CD Technologies Asia, Inc. © 2018 cdasiaonline.com

 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 rst 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. acAIES

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 o cial population of only 106 ,9 5 1 based on the 2000 Census of Population
conducted by the National Statistics O ce (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 certi ed by the NSO as required by the Local Government
Cod e. 1 Moreover, respondents failed to prove that with the population count of
371,000, the population of the original unit (mother Province of Surigao del Norte)
would not be reduced to less than the minimum requirement prescribed by law at the
time of the creation of the new province. 2
Less than a year after the proclamation of the new province, the NSO conducted
the 2 0 0 7 Census of Population. The NSO certi ed that as of August 1, 2007, Dinagat
Islands had a total population of only 120,813, 3 which was still below the minimum
requirement of 250,000 inhabitants.
Based on the foregoing, R.A. No. 9355 failed to comply with the population
requirement of 250,000 inhabitants as certified by the NSO.
Moreover, the land area of the province failed to comply with the statutory
requirement of 2,000 square kilometers. R.A. No. 9355 speci cally states that the
Province of Dinagat Islands contains an approximate land area of 802.12 square
kilometers. This was not disputed by the respondent Governor of the Province of
Dinagat Islands in her Comment. She and the other respondents instead asserted that
the province, which is composed of more than one island, is exempted from the land
area requirement based on the provision in the Rules and Regulations Implementing the
Local Government Code of 1991 (IRR), speci cally paragraph 2 of Article 9 which
states that "[t]he land area requirement shall not apply where the proposed province is
composed of one (1) or more islands." The certi cate of compliance issued by the
Lands Management Bureau was also based on the exemption under paragraph 2,
Article 9 of the IRR.
However, the Court held that paragraph 2 of Article 9 of the IRR is null and void,
because the exemption is not found in Section 461 of the Local Government Code. 4
There is no dispute that in case of discrepancy between the basic law and the rules and
regulations implementing the said law, the basic law prevails, because the rules and
regulations cannot go beyond the terms and provisions of the basic law. 5

CD Technologies Asia, Inc. © 2018 cdasiaonline.com

 The movants now argue that the correct interpretation of Section 461 of the
Local Government Code is the one stated in the Dissenting Opinion of Associate
Justice Antonio Eduardo B. Nachura.
In his Dissenting Opinion, Justice Nachura agrees that R.A. No. 9355 failed to
comply with the population requirement. However, he contends that the Province of
Dinagat Islands did not fail to comply with the territorial requirement because it is
composed of a group of islands; hence, it is exempt from compliance not only with the
territorial contiguity requirement, but also with the 2,000-square-kilometer land area
criterion in Section 461 of the Local Government Code, which is reproduced for easy
reference:
SEC. 461. Requisites for Creation. — (a) A province may be created if it has
an average annual income, as certi ed 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: TDEASC

(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 fty thousand
(250,000) inhabitants as certified by the National Statistics Office:

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

(b) The territory need not be contiguous if it comprises two

(2) or more islands or is separated by a chartered city or cities
which do not contribute to the income of the province.
(c) The average annual income shall include the income accruing to
the general fund, exclusive of special funds, trust funds, transfers, and non-
recurring income. 6

Justice Nachura contends that the stipulation in paragraph (b) quali es not
merely the word "contiguous" in paragraph (a) (i) in the same provision, but rather the
entirety of paragraph (a) (i) that reads:
(i) a contiguous territory of at least two thousand (2,000) square
kilometers, as certified by the Lands Management Bureau[.]7

He argues that the whole paragraph on contiguity and land area in paragraph (a)
(i) above is the one being referred to in the exemption from the territorial requirement in
paragraph (b). Thus, he contends that if the province to be created is composed of
islands, like the one in this case, then, its territory need not be contiguous and need not
have an area of at least 2,000 square kilometers. He asserts that this is because as the
law is worded, contiguity and land area are not two distinct and separate requirements,
but they qualify each other. An exemption from one of the two component
requirements in paragraph (a) (i) allegedly necessitates an exemption from the other
component requirement, because the non-attendance of one results in the absence of a
reason for the other component requirement to effect a qualification.
Similarly, the OSG contends that when paragraph (b) of Section 461 of the Local
Government Code provides that the "territory need not be contiguous if it comprises
two (2) or more islands," it necessarily dispenses the 2,000-sq.-km. land area
CD Technologies Asia, Inc. © 2018 cdasiaonline.com
 requirement, lest such exemption would not make sense. The OSG argues that in
stating that a "territory need not be contiguous if it comprises two (2) or more islands,"
the law could not have meant to de ne the obvious. The land mass of two or more
islands will never be contiguous as it is covered by bodies of water. It is then but logical
that the territory of a proposed province that is composed of one or more islands need
not be contiguous or be at least 2,000 sq. kms.
The Court is not persuaded.
Section 7, Chapter 2 (entitled General Powers and Attributes of Local
Government Units) of the Local Government Code provides:
SEC. 7. Creation and Conversion. — As a general rule, the creation of a local
government unit or its conversion from one level to another level shall be based
o n veri able indicators of viability and projected capacity to provide
services , to wit:

(a) Income. — It must be su cient, 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 identi ed by metes and bounds with technical descriptions; and
su cient 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 O ce (NSO), and the Lands
Management Bureau (LMB) of the Department of Environment and Natural
Resources (DENR). 8

It must be emphasized that Section 7 above, which provides for the general rule
in the creation of a local government unit, states in paragraph (c) thereof that the land
area must be contiguous and su cient 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 su cient to provide for such basic services
and facilities to meet the requirements of its populace. A su cient 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, speci cally states the requirement of "a contiguous territory
of at least two thousand (2,000) square kilometers . "
Hence, contrary to the arguments of both movants, the requirement of a
contiguous territory and the requirement of a land area of at least 2,000 square
kilometers are distinct and separate requirements for land area under paragraph (a) (i)
of Section 461 and Section 7 (c) of the Local Government Code.

CD Technologies Asia, Inc. © 2018 cdasiaonline.com

 However, paragraph (b) of Section 461 provides two instances of exemption
from the requirement of territorial contiguity, thus:
(b) The territory need not be contiguous if it comprises two (2) or
more islands, or is separated by a chartered city or cities which do not
contribute to the income of the province. 9

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

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; 1 0 neither may it engraft into the law quali cations not
contemplated, 1 1 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. 1 2 Where the law speaks in clear and categorical language, there
is no room for interpretation, but only for application. 1 3
Moreover, the OSG contends that since the power to create a local government
unit is vested with the Legislature, the acts of the Legislature and the Executive branch
in enacting into law R.A. No. 9355 should be respected as petitioners failed to
overcome the presumption of validity or constitutionality.
The contention lacks merit.
Section 10, Article X of the Constitution states:
"SEC. 10. No province , city, municipality, or barangay may be created ,
divided, merged, abolished, or its boundary substantially altered, except in
accordance with the criteria established in the local government code
and subject to approval by a majority of the votes cast in a plebiscite in the
political units directly affected." 1 4

As the law-making branch of the government, indeed, it was the Legislature that
imposed the criteria for the creation of a province as contained in Section 461 of the
Local Government Code. No law has yet been passed amending Section 461 of the
Local Government Code, so only the criteria stated therein are the bases for the
creation of a province. The Constitution clearly mandates that the criteria in the Local
Government Code must be followed in the creation of a province; hence, any derogation
of or deviation from the criteria prescribed in the Local Government Code violates
Section 10, Article X of the Constitution.
Contrary to the contention of the movants, the evidence on record proved that
R.A. No. 9355 failed to comply with either the population or territorial requirement
prescribed in Section 461 of the Local Government Code for the creation of the
Province of Dinagat Islands; hence, the Court declared R.A. No. 9355 unconstitutional.
CD Technologies Asia, Inc. © 2018 cdasiaonline.com
 In Fariñas v. The Executive Secretary, 1 5 the Court held:
Every statute is presumed valid. The presumption is that the legislature
intended to enact a valid, sensible and just law and one which operates no further
than may be necessary to effectuate the specific purpose of the law.
It is equally well-established, however, that the courts, as guardians of the
Constitution, have the inherent authority to determine whether a statute enacted
by the legislature transcends the limit imposed by the fundamental law. And
where the acts of the other branches of government run afoul of the Constitution,
it is the judiciary's solemn and sacred duty to nullify the same.

Citing League of Cities of the Philippines v. Commission on Elections, 1 6 the

movants further contend that under the operative fact doctrine, the constitutionality of
R.A No. 9355, creating the Province of Dinagat Islands, should be upheld.
The Court is not persuaded.
In League of Cities of the Philippines v. Commission on Elections, the Court held
that the 16 cityhood laws, whose validity were questioned therein, were constitutional
mainly because it found that the said cityhood laws merely carried out the intent of R.A.
No. 9009, now Section 450 of the Local Government Code, to exempt therein
respondents local government units (LGUs) from the P100 million income requirement,
since the said LGUs had pending cityhood bills long before the enactment of R.A. No.
9009. Each one of the 16 cityhood laws contained a provision exempting the
municipality covered from the P100 million income requirement.
In this case, R.A. No. 9355 was declared unconstitutional because there was
utter failure to comply with either the population or territorial requirement for the
creation of a province under Section 461 of the Local Government Code.
The Court, while respecting the doctrine of separation of powers, cannot renege
on its duty to determine whether the other branches of the government have kept
themselves within the limits of the Constitution, and determine whether illegality
attached to the creation of the province in question. To abandon this duty only because
the Province of Dinagat Islands has began its existence is to consent to the passage of
a law that is violative of the provisions of the Constitution and the Local Government
Code, rendering the law and the province created null and void. The Court cannot
tolerate such nullity to be in existence. Where the acts of other branches of the
government go beyond the limit imposed by the Constitution, it is the sacred duty of
the judiciary to nullify the same. 1 7
Tan v. Comelec 1 8 held: aEDCAH

. . . [T]he fact that such plebiscite had been held and a new province
proclaimed and its o cials appointed, the case before Us cannot truly be viewed
as already moot and academic. Continuation of the existence of this newly
proclaimed province, which petitioners strongly profess to have been illegally
born, deserves to be inquired into by this Tribunal so that, if indeed, illegality
attaches to its creation, the commission of that error should not provide the very
excuse for perpetuation of such wrong. For this court to yield to the respondents'
urging that, as there has been fait accompli then this Court should passively
accept and accede to the prevailing situation, is an unacceptable suggestion.
Dismissal of the instant petition, as respondents so propose, is a proposition
fraught with mischief. Respondents' submission will create a dangerous
precedent. Should this Court decline now to perform its duty of interpreting and
CD Technologies Asia, Inc. © 2018 cdasiaonline.com
 indicating what the law is and should be, this might tempt again those who strut
about in the corridors of power to recklessly and with ulterior motives, create,
merge, divide and/or alter the boundaries of political subdivisions, either brazenly
or stealthily, con dent that this Court will abstain from entertaining future
challenges to their acts if they manage to bring about a fait accompli.

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

Decision dated February 10, 2010 are hereby DENIED for lack of merit.
SO ORDERED.
Puno, C.J., Carpio, Corona, Carpio Morales, Velasco, Jr., Nachura, Leonardo-de
Castro, Brion, Bersamin, Del Castillo, Abad, Villarama, Jr. and Mendoza, JJ., concur.
Perez, J., see dissenting.

Separate Opinions
PEREZ , J., dissenting :

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

presumption is rooted in the doctrine of separation of powers which enjoins upon
the three coordinate departments of the Government a becoming courtesy for
each other's acts. The theory is that every law, being the joint act of the
Legislature and the Executive, has passed careful scrutiny to ensure that it is in
accord with the fundamental law. This Court, however, may declare a law, or
portions thereof, unconstitutional, where a petitioner has shown a clear and
unequivocal breach of the Constitution, not merely a doubtful or argumentative
one. In other words, the grounds for nullity must be beyond reasonable doubt, for
to doubt is to sustain.

The spirit of the foregoing pronouncements enunciated in Cawaling, Jr. v.

Executive Secretary 1 animates this dissent to the denial of the motion for
reconsideration of the February 10, 2010 En Banc Decision handed down in the case at
bench, declaring as unconstitutional Republic Act No. 9355, as well the provision in
Article 9 (b) of the Rules and Regulations Implementing the Local Government Code of
1991 which states that, "The land area requirement shall not apply where the proposed
province is composed of one (1) or more islands."
The factual and procedural antecedents are not in dispute. TcSICH

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

Dinagat, Libjo, Loreto, San Jose and Tubajon with an aggregate land area of 802.12
square kilometers, the Dinagat Islands form part of the province of Surigao del Norte
alongside the Mainland, Surigao City, Siargao Island and Bucas Grande. In support of
the house bill for the creation of the Dinagat Islands as a separate province, it appears
that a special census conducted by the province of Surigao del Norte and the National
Statistics O ce (NSO) District Census Coordinator in July 2003 yielded a population
count of 371,576 inhabitants. With the certi cation from the Bureau of Local
Government Finance that the proposed province had an average annual income of
P82,696,433.23, the house bill for the creation of the Province of Dinagat Islands was
passed by the Senate and House of Representatives on August 14, 2006 and August
28, 2006, respectively.
On October 2, 2006, President Gloria Macapagal-Arroyo approved and enacted
CD Technologies Asia, Inc. © 2018 cdasiaonline.com
 said house bill into law as Republic Act No. 9355, entitled, "An Act Creating the Province
of Dinagat Islands." The plebiscite conducted by the Commission on Elections
(COMELEC) on December 3, 2006 in the local government units directly affected by the
creation of the new province yielded 69,943 a rmative votes and 63,502 negative
votes. Subsequent to the proclamation of said vote by the Plebiscite Provincial Board
of Canvassers on December 3, 2006, the President appointed a new set of provincial
o cials who took their oath of o ce on January 26, 2007. In the May 14, 2007
synchronized National and Local Elections, the constituents of the new province elected
a new set of provincial officers who eventually assumed office on July 1, 2007.
Petitioners initially assailed the constitutionality of Republic Act No. 9355 in the
petition for certiorari and prohibition docketed before the Court as G.R. No. 175158.
Undaunted by the dismissal of said petition on technical grounds and the denial of their
motion for reconsideration thereof, petitioners led the petition for certiorari to which
the case at bench traces its provenance. Reiterating the arguments in their previous
petition, petitioners maintained that the law failed to comply with either the land area
and population requirements prescribed under the Local Government Code of 1991. In
addition to the invalidation of the law as unconstitutional, petitioners prayed for the
nulli cation of the appointment and election of the provincial o cers of Dinagat
Islands as well as the return of its municipalities and districts to the province of Surigao
del Norte.
On February 10, 2010, a decision was rendered declaring Republic Act No. 9355
unconstitutional for failure to comply with the land area and population requirements
under the Local Government Code, and giving short shrift to respondents' reliance on
Article 9 (b) of the Rules and Regulations Implementing the Local Government Code of
1991 (IRR) to the effect that the requirement of a contiguous territory of at least 2,000
square kilometers does not apply when the proposed province is composed of one or
more islands. The decision invoked the case of Tan v. COMELEC 2 which declared that
the term "territory" only refers to the mass of land area and excludes the waters over
which the local government unit exercises control. Likewise brushing aside the result of
the special census for lack of certi cation from the NSO, the decision also ruled that
the population requirement was not complied with, based on the NSO 2000 Census of
Population which pegged the official population of Dinagat Islands at 106,951.
After a circumspect consideration of the arguments for and against the validity
of the creation of the Province of Dinagat Islands, I am convinced, with all due respect,
that a reconsideration of the decision is in order.
The creation of local government units is governed by Section 10, Article X of the
Constitution which provides that, "(n)o province, city, municipality, or barangay may be
created, divided, merged, abolished or its boundary substantially altered except in
accordance with the criteria established in the local government code and subject to
approval by a majority of the votes cast in a plebiscite in the political units directly
affected." Correlatively, Section 461 of the Local Government Code prescribes the
criteria for the creation of a province in the following wise:
SEC. 461. Requisites for Creation. — (a) A province may be created if it has
an average annual income, as certi ed 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
CD Technologies Asia, Inc. © 2018 cdasiaonline.com
 (ii) a population of not less than two hundred fty thousand (250,000)
inhabitants as certified by the National Statistics Office:
Provided, That, the creation thereof shall not reduce the land area,
population, and income of the original unit or units at the time of said creation to
less than the minimum requirements prescribed herein.

(b) The territory need not be contiguous if it comprises two (2) or more
islands or is separated by a chartered city or cities which do not contribute to the
income of the province.
(c) The average annual income shall include the income accruing to the
general fund, exclusive of special funds, trust funds, transfers, and non-recurring
income.

Considered the most important factor insofar as the creation of a new province
is concerned, the income requirement under the Local Government Code has been
more than four-fold complied with, as may be gleaned from the Bureau of Local
Government Finance Certi cation that, based on the 1991 constant prices, the average
annual income of the Province of Dinagat Islands is P82,696,433.23. Despite its
aggregate land area of 802.12 square kilometers only, the new province has also
measured up to the territorial requirement since, being comprised of two or more
islands, it is exempted from the contiguous 2,000 square-kilometer land mass
prescribed under Section 461 (a) [i]. Although the exemption in paragraph (b) appears
to extend only to the requirement of contiguity, I am convinced by Mr. Justice Antonio
Eduardo B. Nachura's opinion that, from the tenor of the same provision, the contiguity
and land area requirements cannot be considered separate and distinct from each
other. As eloquently stated in his dissent: cSEDTC

By rough analogy, the two components are like dicephalic conjoined twins
— two heads are attached to a single body. If one head is separated from the
other, then the twins die. In the same manner, the law, by providing in paragraph
(b) of Section 461 that the territory need not be contiguous if the same is
comprised of islands, must be interpreted as intended to exempt such territory
from the land area component of 2,000 sq. km. Because the two component
requirements are inseparable, the elimination of contiguity from the territorial
criterion has the effect of a co-existent eradication of the land area component.
The territory of the province of Dinagat Islands, therefore, comprising the major
islands of Dinagat and Hibuson, and approximately 47 islets, need not be
contiguous and need not have an area of at least 2,000 sq. km. following Section
461 of the LGC.
It will result in super uity, if not absurdity, if paragraph (b) of the provision
is interpreted as referring only to the component requirement of contiguity and not
to both component requirements of contiguity and land area. This is because
contiguity does not always mean contact by land. Thus, insofar as islands are
concerned, they are deemed contiguous although separated by wide spans of
navigable deep waters, with the exception of the high seas, because all lands
separated by water touch one another, in a sense, beneath the water. The
provision, then, as worded, only means that the exemption in paragraph (b) refers
to both the components of territory, that is, contiguity and land area, and not
merely the rst, standing alone. For, indeed, why will the law still exempt the
islands from the requirement of contiguity when they are already legally
contiguous?
CD Technologies Asia, Inc. © 2018 cdasiaonline.com
 Compliance with the land area requirement by the Province of Dinagat Islands is
cast in even relief when gauged from the clear and unambiguous language of the IRR
which was formulated in accordance with Section 533 of the Local Government Code,
by the Oversight Committee chaired by the Executive Secretary and composed of
representatives from the Senate, 3 the House of Representatives, 4 the Cabinet 5 and
the leagues of local government units. 6 Partaking the nature of executive construction
and, for said reason, deserving of great weight and respect, 7 Article 9 of the IRR
distinctly provides as follows:
ART. 9. Provinces. –— (a) Requisites for creation. — A province shall not be
created unless the following requisites on income and either population or land
area are present:
(1) Income — An average annual income of not less than Twenty Million
Pesos (P20,000,000.00) for the immediately preceding two (2)
consecutive years based on 1991 constant prices, as certi ed 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 fty thousand (250,000) inhabitants, as certi ed by NSO;
or land area which must be contiguous with an area of at least two
thousand (2,000) square kilometers, as certi ed by LMB. The
territory need not be contiguous if it comprises two (2) or more
islands or is separated by a chartered city or cities which do not
contribute to the income of the province. The land area requirement
shall not apply where the proposed province is composed of one (1)
or more islands. The territorial jurisdiction of a province sought to
be created shall be properly identified by metes and bounds.

The creation of a new province shall not reduce the land area, population,
and income of the original LGU or LGUs at the time of said creation to less than
the prescribed minimum requirements. All expenses incidental to the creation
shall be borne by the petitioners.

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

compliance with the land area requirement, however, the ponencia also declared the
underscored portion of the foregoing IRR provision null and void for going beyond the
criteria prescribed by Section 461 of the Local Government. Citing the Court's
November 18, 2008 ruling in League of Cities of the Philippines v. COMELEC, 8 it held
that "(t)he Constitution requires that the criteria for the creation of a province, including
any exemption from such criteria, must all be written in the Local Government Code." In
case of discrepancy between the basic law and the rules and regulations implementing
the same, the ponencia went on to state that, "the basic law prevails, because the rules
and regulations cannot go beyond the terms and provisions of the basic law."
The League of Cities case concerned the constitutionality of sixteen cityhood
laws, each converting the municipalities covered into a city, for non-compliance with
Republic Act No. 9009 which amended Section 450 of the Local Government Code by
increasing the income requirement from P20,000,000.00 to P100,000,000.00 for a
municipality to be converted into a component city. Initially declared unconstitutional in
the aforesaid November 18, 2008 Decision, the constitutionality of the subject cityhood
laws were eventually upheld in the December 21, 2009 Decision subsequently rendered
CD Technologies Asia, Inc. © 2018 cdasiaonline.com
 in the case on the ground, among others, that the Local Government Code, despite its
being the ideal repository for the same, need not be the only vessel of all the criteria for
the creation of local government units. Taking into consideration the circumstances
under which Republic Act No. 9009 and said cityhood laws were enacted, the Court
ruled as follows:
Legislative intent is part and parcel of the law, the controlling factor in
interpreting a statute. In construing a statute, the proper course is to start out and
follow the true intent of the Legislature and to adopt the sense that best
harmonizes with the context and promotes in the fullest manner the policy and
objects of the legislature. In fact, any interpretation that runs counter to the
legislative intent is unacceptable and invalid. Torres v. Limjap could not have
been more precise:
'The intent of a Statute is the Law. — If a statute is valid, it is to have
effect according to the purpose and intent of the lawmaker. The intent is . .
. the essence of the law and the primary rule of construction is to ascertain
and give effect to that intent. The intention of the legislature in enacting a
law is the law itself, and must be enforced when ascertained, although it
may not be consistent with the strict letter of the statute. Courts will not
follow the letter of a statute when it leads away from the true intent and
purpose of the legislature and to conclusions inconsistent with the general
purpose of the act. Intent is the spirit which gives life to a legislative
enactment. In construing statutes the proper course is to start out and
follow the true intent of the legislature.' DcaSIH

When viewed in the light of the legislative intent underlying Section 461 of the
Local Government Code, I respectfully submit that Article 9 of the IRR is not in con ict
with the criteria for the creation of provinces ensconced in said provision of the basic
law. Unlike Section 197 9 of Batas Pambansa Blg. 337, its counterpart provision in the
predecessor of the present Local Government Code, Section 461 does not give equal
premium to the income, land area and population requirements for the creation of new
provinces. This is readily evident from the fact that, after prescribing the
P20,000,000.00 income requirement, Section 461 simply mandates compliance with
either the requirement of a contiguous territory of 2,000 square kilometers o r a
population of not less than 250,000. Already quoted in Justice Nachura's dissent to the
ponencia, the following transcript of the congressional deliberations on the house bill
from which the present Local Government Code originated is particularly enlightening
regarding the legislative intent for said new requirements, viz.:
HON. ALFELOR:

Income is mandatory. We can even have this doubled because we thought

...
CHAIRMAN CUENCO:

In other words, the primordial considerations here is the economic viability

of the new local government unit, the new province?
xxx xxx xxx

HON. LAGUADA:
The reason why we are willing to increase the income, double than the
House version, because we also believe that economic viability is really a
CD Technologies Asia, Inc. © 2018 cdasiaonline.com
 minimum. Land area and population are functions really of the viability of
the area, because where you have an income level which would be the
trigger point for economic development, population will naturally increase
because there will be an immigration. However, if you disallow the
particular area from being converted into a province because of population
problems in the beginning, it will never be able to reach the point where it
could become a province simply because it will never have the economic
take off for it to trigger off that economic development.

Now, we are saying that maybe Fourteen Million Pesos is a oor area
where it could pay for overhead, and provide a minimum of basic services
to the population. Over and above that, the provincial o cials should be
able to trigger off economic development which will attract new
investments from the private sector. This is now the concern of their local
o cials. But if we are going to tie the hands of the proponents, simply by
telling them, 'Sorry, you are now at 150 thousand or 200,000 thousand,'
you will never be able to become a province because nobody wants to go
to that place. Why? Because you never have any reason for economic
viability.
xxx xxx xxx

CHAIRMAN PIMENTEL:
Okay, what about land area?

HON. LUMAUIG:

1,500 square kilometers.

HON. ANGARA:

Walang problema yon, that's not very critical, 'yong land area because . . .
CHAIRMAN PIMENTEL:

Okay, ya, our, the Senate version is 3.5, 3,500 square meters, ah, square
kilometers.
HON. LAGUADA:

Ne, Ne. A province is constituted for the purpose of administrative

efficiency and delivery of basic services.

CHAIRMAN PIMENTEL:
Right.

HON. LAGUADA:
Actually, when you come down to it, when government was instituted, there
is only one central government and then everybody falls under that. But it
was later on subdivided into provinces for purposes of administrative
efficiency.

CHAIRMAN PIMENTEL:
Okay.

CD Technologies Asia, Inc. © 2018 cdasiaonline.com

 HON. LAGUADA:
Now, what we're seeing now is that the administrative e ciency is no
longer there because the land areas that we are giving to our governors is
so wide that no one man could possibly administer all of the complex
machineries that are needed.
Secondly, when you say 'delivery of basic services,' as pointed out by
Cong. Alfelor, there are sections of the province which have never been
visited by public o cials precisely because they don't have the time nor
the energy anymore because it is so wide. Now, by compressing the land
area and by reducing the population requirement, we are, in effect, trying to
follow the basic policy of why we are creating provinces, which is to deliver
basic services and to make it more efficient in administration.
CHAIRMAN PIMENTEL:

Yeah, that's correct, but on the assumption that the province is able to do it
without being a burden to the national government. That's the assumption.
HON. LAGUADA:

That's why we're going into the minimum income level. As we said, if we
go on a minimum income level, then we say, "this is the trigger point at
which this administration can take place." HcTIDC

In exempting provinces composed of one or more islands from both the

contiguity and land area requirements, Article 9 of the IRR cannot be considered
inconsistent with the criteria under Section 461 of the Local Government Code. Far
from being absolute regarding application of the requirement of "a contiguous territory
of at least 2,000 square kilometers as certi ed by the Land Management Bureau,"
Section 461 allows for said exemption by providing, under paragraph (b) thereof, that "
(t)he territory need not be contiguous if (the new province) comprises two or more
islands or is separated by a chartered city or cities which do not contribute to the
income of the province." For as long as there is compliance with the income
requirement, the legislative intent is, after all, to the effect that the land area and
population requirements may be overridden by the established economic viability of the
proposed province.
In the aforesaid December 21, 2009 Decision in the League of Cities case, the
Court sagely ruled that "(t)he legislative intent is not at all times accurately re ected in
the manner in which the resulting law is couched. Thus, applying a verba legis or strictly
literal interpretation of a statute may render it meaningless and lead to inconvenience,
an absurd situation or injustice. To obviate this aberration, and bearing in mind the
principle that the intent or the spirit of the law is the law itself, resort should be to the
rule that the spirit of the law controls its letter." Indeed, the forum for examining the
wisdom of the law, and enacting remedial measures, is not this Court but the
Legislature. 1 0 Consequently, courts will not follow the letter of the statute when to do
so would depart from the true intent of the legislature or would otherwise yield
conclusions inconsistent with the general purpose of the act. 1 1
Without taking into consideration the aforesaid legislative intent, the ponencia
clearly resorted to a strict verba legis interpretation in invalidating the portion of Article
9 of the IRR which states that, "The land area requirement shall not apply where the
proposed province is composed of one (1) or more islands." In determining that the
CD Technologies Asia, Inc. © 2018 cdasiaonline.com
 Province of Dinagat Islands failed to comply with the land area requirement, it also
relied heavily on the Court's pronouncements in Tan v. COMELEC 1 2 where the principal
issue was, however, the invalidity of the creation of the province of Negros del Norte on
account of the fact that the plebiscite therefor conducted did not include the parent
province of Negros Oriental. Although the collateral issue of compliance with the land
area requirement was resolved pursuant to Section 197 of Batas Pambansa Blg. 337
and not Section 461 of the present Local Government Code, the ponencia further ruled
that the requirements under both laws are similar and that there is no reason for a
change in the de nitions, usage or meaning of the terms "territory" and "contiguous" in
said laws.
As hereinbefore observed, however, Section 197 of Batas Pambansa Blg. 337,
unlike Section 461 of the Local Government Code of 1991, gave equal premium to the
income, land area and population requirements for the creation of new provinces. Even
prescinding from the current decrease in population and land area requirement as well
as the increase in the income requirement, it cannot, therefore, be validly argued that
the requisites for the creation of a province under both laws are similar. Given the
lesser importance accorded the land area and population under Section 461 of the
present Local Government Code, I nd that the propriety of applying the restrictive
interpretation of the land area requirement in Tan v. COMELEC to the creation of the
Province of Dinagat Islands is not as cut and dried as the ponencia considered it to be.
More so, when it is borne in mind that, unlike the one conducted for the proposed
province of Negros del Norte, the plebiscite conducted for said new province
unquestionably complied with the Constitutional requirement of inclusion of "the
political units directly affected."
In ordaining the enactment of a local government code, Section 3, Article X of the
Constitution envisioned one "which shall provide for a more responsive and
accountable local government structure instituted through a system of
decentralization." Paying attention to this principle, Section 2 (a) of the Local
Government Code of 1991 provides as follows:
Sec. 2. Declaration of Policy — (a) It is hereby declared the policy of the
State that the territorial and political subdivisions of the State shall enjoy genuine
and meaningful local autonomy to enable them to attain their fullest development
as self-reliant communities and make them more effective partners in the
attainment of national goals. Towards this end, the State shall provide for a more
responsive and accountable local government structure instituted through a
system of decentralization whereby local government units shall be given more
powers, authority, responsibilities, and resources. The process of decentralization
shall proceed from the National Government to the local government units.

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

policies that the house bill creating the Province of Dinagat Islands was passed by
Congress and enacted into law by the President. As an organic law, Republic Act No.
9355 also garnered the majority of the votes cast in the plebiscite conducted not only
in the municipalities constituting the newly created province but also the parent
province of Surigao del Norte. During the May 14, 2007 synchronized National and
Local Elections, the constituents of the Province of Dinagat Islands have, in fact, already
elected their provincial o cers who are about to complete their rst term of o ce. The
foregoing considerations were unduly brushed aside by the ponencia in one fell swoop
when it invalidated Republic Act No. 9355 and the exception embodied in Article 9 of
the IRR with a strict and narrow interpretation of Section 461 of the Local Government
CD Technologies Asia, Inc. © 2018 cdasiaonline.com
 Code. CHIEDS

Footnotes

1. SEC. 7. Creation and conversion. — As a general rule, the creation of a local government unit
or its conversion from one level to another shall be based on veri able indicators of
viability and projected capacity to provide services, to wit:

(a) Income. — It must be su cient, 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 identi ed by
metes and bounds with technical descriptions and su cient 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 O ce (NSO), and the
Lands Management Bureau (LMB) of the Department of Environment and
Natural Resources (DENR).
SEC. 461. Requisites for Creation. — (a) A province may be created if it has an average
annual income, as certi ed 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 certi ed
by the Lands Management Bureau; or

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

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

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

SEC. 461. Requisites for Creation. — (a) A province may be created if it has an average
annual income, as certi ed by the Department of Finance, of not less than Twenty
million pesos (P20,000,000.00) based on 1991 constant prices a n d 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

CD Technologies Asia, Inc. © 2018 cdasiaonline.com

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

(b ) The territory need not be contiguous if it comprises two (2) or more

islands or is separated by a chartered city or cities which do not contribute to
the income of the province.
(c) The average annual income shall include the income accruing to the general fund,
exclusive of special funds, trust funds, transfers, and non-recurring income.

Rules and Regulations Implementing the Local Government Code of 1991

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

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

(2) Population or land area — Population which shall not be less than two hundred fty
thousand (250,000) inhabitants, as certi ed by the National Statistics O ce; or land
area which must be contiguous with an area of at least two thousand (2,000)
square kilometers, as certi ed by the LMB. The territory need not be
contiguous if it comprises two (2) or more islands, or is separated by a
chartered city or cities which do not contribute to the income of the province.
The land area requirement shall not apply where the proposed province is
composed of one (1) or more islands. The territorial jurisdiction of a province
sought to be created shall be properly identi ed by metes and bounds. (Emphasis
supplied.)
5. Hijo Plantation, Inc. v. Central Bank, G.R. No. L-34526, August 9, 1988, 164 SCRA 192, 199.

6. Emphasis supplied.
7. Emphasis supplied.

8. Emphasis supplied.

9. Emphasis supplied.
10. University of the Philippines Board of Regents v. Auditor General, G.R. No. L-19617, October
31, 1969, 30 SCRA 5, 17.

11. Ramos v. Court of Appeals, G.R. No. L-53766, October 30, 1981, 108 SCRA 728.
12. Republic v. Go. Ban Lee, 111 Phil. 805 (1961).

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

15. 463 Phil. 179, 197 (2003).

16. G.R. Nos. 176951, 177499 & 178056, December 21, 2009.
CD Technologies Asia, Inc. © 2018 cdasiaonline.com
 17. Fariñas v. The Executive Secretary, supra note 15.

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

PEREZ, J.; dissenting:

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

2. 142 SCRA 727.

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

4. The Congressmen appointed by the Speaker, to include the Chairman of the Committee on
Local Government.
5. Secretary of Interior and Local Government, Secretary of Finance, Secretary of Budget and
Management.

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

7. Galarosa v. Valencia, 227 SCRA 728.

8. 571 SCRA 263.

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

The average estimated annual income shall include the income allotted for both the
general and infrastructure funds, exclusive of trust funds, transfers and nonrecurring
income.
10. Peñera v. COMELEC, G.R. No. 181613, November 25, 2009.

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

12. Supra.

CD Technologies Asia, Inc. © 2018 cdasiaonline.com