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),[2] the population of the Province of Surigao del Norte as of May 1, 2000 was
481,416, broken down as follows:

Mainland 281,111
Surigao City 118,534
Siargao Island & Bucas Grande 93,354
Dinagat Island 106,951

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

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

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

The Bureau of Local Government Finance certified that the average annual income of the
proposed Province of Dinagat Islands for calendar year 2002 to 2003 based on the 1991
constant prices was P82,696,433.23. 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.

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 P82,696,433.25.

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

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

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

The Ruling of the Court

The petition is granted.

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

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

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

SEC. 461. Requisites for Creation. -- (a) A province may be created if it has an average annual
income, as certified by the Department of Finance, of not less than Twenty million pesos
(P20,000,000.00) based on 1991 constant prices and 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 (P20,000,000.00)
for the immediately preceding two (2) consecutive years based on 1991 constant prices, as
certified by DOF. The average annual income shall include the income accruing to the general
fund, exclusive of special funds, special accounts, transfers, and nonrecurring income; and

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

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

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

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

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

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

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

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

In Section 5 of R.A. No. 9207, the Committee is granted the power to administer, formulate
guidelines and policies, and implement the disposition of the areas covered by the law. Implicit
in this authority and the 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 1991 [27] states that the duly elected presidents of
the liga [ng mga barangay] at the municipal, city and provincial levels, including the component
cities and municipalities of Metropolitan Manila, shall serve as ex officio members of
the sangguniang bayan, sangguniang panglungsod, and sangguniang panlalawigan, respectively.
They shall serve as such only during their term of office as presidents of the liga  chapters which,
in no case, shall be beyond the term of office of the sanggunian concerned. The section,
however, does not fix the specific duration of their term as liga president. The Court held that
this was left to the by-laws of the liga  pursuant to Art. 211(g) of the Rules and Regulations
Implementing the Local Government Code of 1991. Moreover, there was no indication that Secs.
491[28] and 494 should be given retroactive effect to adversely affect the presidents of the ABC;
hence, the said provisions were to be applied prospectively.

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

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

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

Courts determine the intent of the law from the literal language of the law within the 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.
 Republic of the Philippines
SUPREME COURT
Baguio City

EN BANC

G.R. No. 180050               April 12, 2011

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,
CONGRESSMAN FRANCISCO T. MATUGAS, HON. SOL T. MATUGAS, HON. ARTURO CARLOS A. EGAY,
JR., HON. SIMEON VICENTE G. CASTRENCE, HON. MAMERTO D. GALANIDA, HON. MARGARITO M.
LONGOS, and HON. CESAR M. BAGUNDOL, Intervenors.

RESOLUTION

NACHURA, J.:

For consideration of the Court is the Urgent Motion to Recall Entry of Judgment dated October 20, 2010 filed by
Movant-Intervenors1 dated and filed on October 29, 2010, praying that the Court (a) recall the entry of judgment, and
(b) resolve their motion for reconsideration of the July 20, 2010 Resolution.

To provide a clear perspective of the instant motion, we present hereunder a brief background of the relevant
antecedents—

On October 2, 2006, the President of the Republic approved into law Republic Act (R.A.) No. 9355 (An Act Creating
the Province of Dinagat Islands).2 On December 3, 2006, the Commission on Elections (COMELEC) conducted the
mandatory plebiscite for the ratification of the creation of the province under the Local Government Code
(LGC).3 The plebiscite yielded 69,943 affirmative votes and 63,502 negative votes. 4 With the approval of the people
from both the mother province of Surigao del

Norte and the Province of Dinagat Islands (Dinagat), the President appointed the interim set of provincial officials
who took their oath of office on January 26, 2007. Later, during the May 14, 2007 synchronized elections, the
Dinagatnons elected their new set of provincial officials who assumed office on July 1, 2007. 5

On November 10, 2006, petitioners Rodolfo G. Navarro, Victor F. Bernal and Rene O. Medina, former political
leaders of Surigao del Norte, filed before this Court a petition for certiorari and prohibition (G.R. No. 175158)
challenging the constitutionality of R.A. No. 9355. 6 The Court dismissed the petition on technical grounds. Their
motion for reconsideration was also denied.7

Undaunted, petitioners, as taxpayers and residents of the Province of Surigao del Norte, filed another petition for
certiorari8 seeking to nullify R.A. No. 9355 for being unconstitutional. They alleged that the creation of Dinagat as a
new province, if uncorrected, would perpetuate an illegal act of Congress, and would unjustly deprive the people of
Surigao del Norte of a large chunk of the provincial territory, Internal Revenue Allocation (IRA), and rich resources
from the area. They pointed out that when the law was passed, Dinagat had a land area of 802.12 square
kilometers only and a population of only 106,951, failing to comply with Section 10, Article X of the Constitution and
of Section 461 of the LGC, on both counts, viz.—

Constitution, Article X – Local Government

Section 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
the approval by a majority of the votes cast in a plebiscite in the political units directly affected.

LGC, Title IV, Chapter I

Section 461. Requisites for Creation. – (a) A province may be created if it has an average annual income, as
certified by the Department of Finance, of not less than Twenty million pesos (₱20,000,000.00) based on 1991
constant prices and either of the following requisites:

(i) a continuous 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. (Emphasis supplied.)

On February 10, 2010, the Court rendered its Decision9 granting the petition.10 The Decision declared R.A. No. 9355
unconstitutional for failure to comply with the requirements on population and land area in the creation of a province
under the LGC. Consequently, it declared the proclamation of Dinagat and the election of its officials as null and
void. The Decision likewise declared as null and void the provision on Article 9(2) of the Rules and Regulations
Implementing the LGC (LGC-IRR), stating that, "[t]he land area requirement shall not apply where the proposed
province is composed of one (1) or more islands" for being beyond the ambit of Article 461 of the LGC, inasmuch as
such exemption is not expressly provided in the law. 11

The Republic, represented by the Office of the Solicitor General, and Dinagat filed their respective motions for
reconsideration of the Decision. In its Resolution 12 dated May 12, 2010,13 the Court denied the said motions.14

Unperturbed, the Republic and Dinagat both filed their respective motions for leave of court to admit their second
motions for reconsideration, accompanied by their second motions for reconsideration. These motions were
eventually "noted without action" by this Court in its June 29, 2010 Resolution. 15

Meanwhile, the movants-intervenors filed on June 18, 2010 a Motion for Leave to Intervene and to File and to Admit
Intervenors’ Motion for Reconsideration of the Resolution dated May 12, 2010. They alleged that the COMELEC
issued Resolution No. 8790, relevant to this case, which provides—

RESOLUTION NO. 8790

WHEREAS, Dinagat Islands, consisting of seven (7) municipalities, were previously components of the First
Legislative District of the Province of Surigao del Norte. In December 2006 pursuant to Republic Act No. 9355, the
Province of Dinagat Island[s] was created and its creation was ratified on 02 December 2006 in the Plebiscite for
this purpose;

WHEREAS, as a province, Dinagat Islands was, for purposes of the May 10, 2010 National and Local Elections,
allocated one (1) seat for Governor, one (1) seat for Vice Governor, one (1) for congressional seat, and ten (10)
Sangguniang Panlalawigan seats pursuant to Resolution No. 8670 dated 16 September 2009;

WHEREAS, the Supreme Court in G.R. No. 180050 entitled "Rodolfo Navarro, et al., vs. Executive Secretary
Eduardo Ermita, as representative of the President of the Philippines, et al." rendered a Decision, dated 10 February
2010, declaring Republic Act No. 9355 unconstitutional for failure to comply with the criteria for the creation of a
province prescribed in Sec. 461 of the Local Government Code in relation to Sec. 10, Art. X, of the 1987
Constitution;

WHEREAS, respondents intend to file Motion[s] for Reconsideration on the above decision of the Supreme Court;

WHEREAS, the electoral data relative to the: (1) position for Member, House of Representatives representing the
lone congressional district of Dinagat Islands, (2) names of the candidates for the aforementioned position, (3)
position for Governor, Dinagat Islands, (4) names of the candidates for the said position, (5) position of the Vice
Governor, (6) the names of the candidates for the said position, (7) positions for the ten (10) Sangguniang
Panlalawigan Members and, [8] all the names of the candidates for Sangguniang Panlalawigan Members, have
already been configured into the system and can no longer be revised within the remaining period before the
elections on May 10, 2010.

NOW, THEREFORE, with the current system configuration, and depending on whether the Decision of the Supreme
Court in Navarro vs. Ermita is reconsidered or not, the Commission RESOLVED, as it hereby RESOLVES, to
declare that:

a. If the Decision is reversed, there will be no problem since the current system configuration is in line with
the reconsidered Decision, meaning that the Province of Dinagat Islands and the Province of Surigao del
Norte remain as two (2) separate provinces;

b. If the Decision becomes final and executory before the election, the Province of Dinagat Islands will revert
to its previous status as part of the First Legislative District, Surigao del Norte.
 But because of the current system configuration, the ballots for the Province of Dinagat Islands will, for the
positions of Member, House of Representatives, Governor, Vice Governor and Members, Sangguniang
Panlalawigan, bear only the names of the candidates for the said positions.

Conversely, the ballots for the First Legislative District of Surigao del Norte, will, for the position of Governor,
Vice Governor, Member, House of Representatives, First District of Surigao del Norte and Members,
Sangguniang Panlalawigan, show only candidates for the said position. Likewise, the whole Province of
Surigao del Norte, will, for the position of Governor and Vice Governor, bear only the names of the
candidates for the said position[s].

Consequently, the voters of the Province of Dinagat Islands will not be able to vote for the candidates of
Members, Sangguniang Panlalawigan, and Member, House [of] Representatives, First Legislative District,
Surigao del Norte, and candidates for Governor and Vice Governor for Surigao del Norte. Meanwhile, voters
of the First Legislative District of Surigao del Norte, will not be able to vote for Members, Sangguniang
Panlalawigan and Member, House of Representatives, Dinagat Islands. Also, the voters of the whole
Province of Surigao del Norte, will not be able to vote for the Governor and Vice Governor, Dinagat Islands.
Given this situation, the Commission will postpone the elections for Governor, Vice Governor, Member,
House of Representatives, First Legislative District, Surigao del Norte, and Members, Sangguniang
Panlalawigan, First Legislative District, Surigao del Norte, because the election will result in [a] failure to
elect, since, in actuality, there are no candidates for Governor, Vice Governor, Members, Sangguniang
Panlalawigan, First Legislative District, and Member, House of Representatives, First Legislative District
(with Dinagat Islands) of Surigao del Norte.

c. If the Decision becomes final and executory after the election, the Province of Dinagat Islands will revert
to its previous status as part of the First Legislative District of Surigao del Norte. The result of the election
will have to be nullified for the same reasons given in Item "b" above. A special election for Governor, Vice
Governor, Member, House of Representatives, First Legislative District of Surigao del Norte, and Members,
Sangguniang Panlalawigan, First District, Surigao del Norte (with Dinagat Islands) will have to be conducted.

xxxx

SO ORDERED.

They further alleged that, because they are the duly elected officials of Surigao del Norte whose positions will be
affected by the nullification of the election results in the event that the May 12, 2010 Resolution is not reversed, they
have a legal interest in the instant case and would be directly affected by the declaration of nullity of R.A. No. 9355.
Simply put, movants-intervenors’ election to their respective offices would necessarily be annulled since Dinagat
Islands will revert to its previous status as part of the First Legislative District of Surigao del Norte and a special
election will have to be conducted for governor, vice governor, and House of Representatives member and
Sangguniang Panlalawigan member for the First Legislative District of Surigao del Norte. Moreover, as residents of
Surigao del Norte and as public servants representing the interests of their constituents, they have a clear and
strong interest in the outcome of this case inasmuch as the reversion of Dinagat as part of the First Legislative
District of Surigao del Norte will affect the latter province such that: (1) the whole administrative set-up of the
province will have to be restructured; (2) the services of many employees will have to be terminated; (3) contracts
will have to be invalidated; and (4) projects and other developments will have to be discontinued. In addition, they
claim that their rights cannot be adequately pursued and protected in any other proceeding since their rights would
be foreclosed if the May 12, 2010 Resolution would attain finality.

In their motion for reconsideration of the May 12, 2010 Resolution, movants-intervenors raised three (3) main
arguments to challenge the above Resolution, namely: (1) that the passage of R.A. No. 9355 operates as an act of
Congress amending Section 461 of the LGC; (2) that the exemption from territorial contiguity, when the intended
province consists of two or more islands, includes the exemption from the application of the minimum land area
requirement; and (3) that the Operative Fact Doctrine is applicable in the instant case.

In the Resolution dated July 20, 2010, 16 the Court denied the Motion for Leave to Intervene and to File and to Admit
Intervenors’ Motion for Reconsideration of the Resolution dated May 12, 2010 on the ground that the allowance or
disallowance of a motion to intervene is addressed to the sound discretion of the Court, and that the appropriate
time to file the said motion was before and not after the resolution of this case.

On September 7, 2010, movants-intervenors filed a Motion for Reconsideration of the July 20, 2010 Resolution,
citing several rulings17 of the Court, allowing intervention as an exception to Section 2, Rule 19 of the Rules of Court
that it should be filed at any time before the rendition of judgment. They alleged that, prior to the May 10, 2010
elections, their legal interest in this case was not yet existent. They averred that prior to the May 10, 2010 elections,
they were unaware of the proceedings in this case. Even for the sake of argument that they had notice of the
pendency of the case, they pointed out that prior to the said elections, Sol T. Matugas was a simple resident of
Surigao del Norte, Arturo Carlos A. Egay, Jr. was a member of the Sangguniang Panlalawigan of the Second
District of Surigao del Norte, and Mamerto D. Galanida was the Municipal Mayor of Socorro, Surigao del Norte, and
that, pursuant to COMELEC Resolution No. 8790, it was only after they were elected as Governor of Surigao del
Norte, Vice Governor of Surigao del Norte and Sangguniang Panlalawigan Member of the First District of Surigao
del Norte, respectively, that they became possessed with legal interest in this controversy.

On October 5, 2010, the Court issued an order for Entry of Judgment, stating that the decision in this case had
become final and executory on May 18, 2010. Hence, the above motion.

At the outset, it must be clarified that this Resolution delves solely on the instant Urgent Motion to Recall Entry of
Judgment of movants-intervenors, not on the second motions for reconsideration of the original parties, and neither
on Dinagat’s Urgent Omnibus Motion, which our

esteemed colleague, Mr. Justice Arturo D. Brion considers as Dinagat’s third motion for reconsideration. Inasmuch
as the motions for leave to admit their respective motions for reconsideration of the May 12, 2010 Resolution and
the aforesaid motions for reconsideration were already noted without action by the Court, there is no reason to treat
Dinagat’s Urgent Omnibus Motion differently. In relation to this, the Urgent Motion to Recall Entry of Judgment of
movants-intervenors could not be considered as a second motion for reconsideration to warrant the application of
Section 3, Rule 15 of the Internal Rules of the Supreme Court. 18 It should be noted that this motion prays for the
recall of the entry of judgment and for the resolution of their motion for reconsideration of the July 20, 2010
Resolution which remained unresolved. The denial of their motion for leave to intervene and to admit motion for
reconsideration of the May 12, 2010 Resolution did not rule on the merits of the motion for reconsideration of the
May 12, 2010 Resolution, but only on the timeliness of the intended intervention. Their motion for reconsideration of
this denial elaborated on movants-intervenors’ interest in this case which existed only after judgment had been
rendered. As such, their motion for intervention and their motion for reconsideration of the May 12, 2010 Resolution
merely stand as an initial reconsideration of the said resolution.

With due deference to Mr. Justice Brion, there appears nothing in the records to support the claim that this was a
ploy of respondents’ legal tactician to reopen the case despite an entry of judgment. To be sure, it is actually
COMELEC Resolution No. 8790 that set this controversy into motion anew. To reiterate, the pertinent portion of the
Resolution reads:

c. If the Decision becomes final and executory after the election, the Province of Dinagat Islands will revert to its
previous status as part of the First Legislative District of Surigao del Norte. The result of the election will have to be
nullified for the same reasons given in Item "b" above. A special election for Governor, Vice Governor, Member,
House of Representatives, First Legislative District of Surigao del Norte, and Members, Sangguniang Panlalawigan,
First District, Surigao del Norte (with Dinagat Islands) will have to be conducted. (Emphasis supplied.)

Indeed, COMELEC Resolution No. 8790 spawned the peculiar circumstance of proper party interest for movants-
intervenors only with the specter of the decision in the main case becoming final and executory. More importantly, if
the intervention be not entertained, the movants-intervenors would be left with no other remedy as regards to the
impending nullification of their election to their respective positions. Thus, to the Court’s mind, there is an imperative
to grant the Urgent Motion to Recall Entry of Judgment by movants-intervenors.

It should be remembered that this case was initiated upon the filing of the petition for certiorari way back on October
30, 2007. At that time, movants-intervenors had nothing at stake in the outcome of this case. While it may be argued
that their interest in this case should have commenced upon the issuance of COMELEC Resolution No. 8790, it is
obvious that their interest in this case then was more imaginary than real. This is because COMELEC Resolution
No. 8790 provides that should the decision in this case attain finality prior to the May 10, 2010 elections, the election
of the local government officials stated therein would only have to be postponed. Given such a scenario, movants-
intervenors would not have suffered any injury or adverse effect with respect to the reversion of Dinagat as part of
Surigao del Norte since they would simply have remained candidates for the respective positions they have vied for
and to which they have been elected.

For a party to have locus standi, one must allege "such a personal stake in the outcome of the controversy as to
assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely
depends for illumination of difficult constitutional questions." Because constitutional cases are often public actions in
which the relief sought is likely to affect other persons, a preliminary question frequently arises as to this interest in
the constitutional question raised.19

It cannot be denied that movants-intervenors will suffer direct injury in the event their Urgent Motion to Recall Entry
of Judgment dated October 29, 2010 is denied and their Motion for Leave to Intervene and to File and to Admit
Intervenors’ Motion for Reconsideration of the Resolution dated May 12, 2010 is denied with finality. Indeed, they
have sufficiently shown that they have a personal and substantial interest in the case, such that if the May 12, 2010
Resolution be not reconsidered, their election to their respective positions during the May 10, 2010 polls and its
concomitant effects would all be nullified and be put to naught. Given their unique circumstances, movants-
intervenors should not be left without any remedy before this Court simply because their interest in this case
became manifest only after the case had already been decided. The consequences of such a decision would
definitely work to their disadvantage, nay, to their utmost prejudice, without even them being parties to the dispute.
Such decision would also violate their right to due process, a right that cries out for protection. Thus, it is imperative
that the movants-intervenors be heard on the merits of their cause. We are not only a court of law, but also of justice
and equity, such that our position and the dire repercussions of this controversy should be weighed on the scales of
justice, rather than dismissed on account of mootness.

The "moot and academic" principle is not a magical formula that can automatically dissuade the courts from
resolving a case. Courts will decide cases, otherwise moot and academic, if: (1) there is a grave violation of the
Constitution; (2) there is an exceptional character of the situation and the paramount public interest is involved; (3)
the constitutional issue raised requires formation of controlling principles to guide the bench, the bar, and the public;
and (4) the case is capable of repetition yet evading review. 20 The second exception attends this case.

This Court had taken a liberal attitude in the case of David v. Macapagal-Arroyo, 21 where technicalities of procedure
on locus standi were brushed aside, because the constitutional issues raised were of paramount public interest or of
transcendental importance deserving the attention of the Court. Along parallel lines, the motion for intervention
should be given due course since movants-intervenors have shown their substantial legal interest in the outcome of
this case, even much more than petitioners themselves, and because of the novelty, gravity, and weight of the
issues involved.

Undeniably, the motion for intervention and the motion for reconsideration of the May 12, 2010 Resolution of
movants-intervenors is akin to the right to appeal the judgment of a case, which, though merely a statutory right that
must comply with the requirements of the rules, is an essential part of our judicial system, such that courts should
proceed with caution not to deprive a party of the right to question the judgment and its effects, and ensure that
every party-litigant, including those who would be directly affected, would have the amplest opportunity for the
proper and just disposition of their cause, freed from the constraints of technicalities. 22

Verily, the Court had, on several occasions, sanctioned the recall entries of judgment in light of attendant
extraordinary circumstances.23 The power to suspend or even disregard rules of procedure can be so pervasive and
compelling as to alter even that which this Court itself had already declared final. 24 In this case, the compelling
concern is not only to afford the movants-intervenors the right to be heard since they would be adversely affected by
the judgment in this case despite not being original parties thereto, but also to arrive at the correct interpretation of
the provisions of the LGC with respect to the creation of local government units. In this manner, the thrust of the
Constitution with respect to local autonomy and of the LGC with respect to decentralization and the attainment of
national goals, as hereafter elucidated, will effectively be realized.

On the merits of the motion for intervention, after taking a long and intent look, the Court finds that the first and
second arguments raised by movants-intervenors deserve affirmative consideration.

It must be borne in mind that the central policy considerations in the creation of local government units are economic
viability, efficient administration, and capability to deliver basic services to their constituents. The criteria prescribed
by the LGC, i.e., income, population and land area, are all designed to accomplish these results. In this light,
Congress, in its collective wisdom, has debated on the relative weight of each of these three criteria, placing
emphasis on which of them should enjoy preferential consideration.

Without doubt, the primordial criterion in the creation of local government units, particularly of a province, is
economic viability. This is the clear intent of the framers of the LGC. In this connection, the following excerpts from
congressional debates are quoted hereunder—

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

CHAIRMAN CUENCO. In other words, the primordial consideration here is the economic viability of the new local
government unit, the new province?

xxxx

HON. LAGUDA. 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 minimum. Land area and population are functions really of the viability
of the area, because 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 the 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’re saying that maybe Fourteen Million Pesos is a floor area where it could pay for overhead and provide a
minimum of basic services to the population. Over and above that, the provincial officials should be able to trigger
off economic development which will attract immigration, which will attract new investments from the private sector.
This is now the concern of the local officials. 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 thousand," you will never be able to become a province because
nobody wants to go to your place. Why? Because you never have any reason for economic viability.

xxxx
CHAIRMAN PIMENTEL. Okay, what about land area?

HON. LUMAUIG. 1,500 square kilometers

HON. ANGARA. Walang problema ‘yon, in fact 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. LAGUDA. Ne, Ne. A province is constituted for the purpose of administrative efficiency and delivery of basic
services.

CHAIRMAN PIMENTEL. Right.

HON. LAGUDA. 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.

HON. LAGUDA. Now, what we’re seeing now is that the administrative efficiency is no longer there precisely
because the land areas that we are giving to our governors is so wide that no one man can 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 officials, precisely because they don’t have the time nor the
energy anymore to do that because it’s 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. LAGUDA. 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." 25

Also worthy of note are the requisites in the creation of a barangay, a municipality, a city, and a province as
provided both in the LGC and the LGC-IRR, viz.—

For a Barangay:

LGC: SEC. 386. Requisites for Creation. – (a) A barangay may be created out of a contiguous territory which has a
population of at least two thousand (2,000) inhabitants as certified by the National Statistics Office except in cities
and municipalities within Metro Manila and other metropolitan political subdivisions or in highly urbanized cities
where such territory shall have a certified population of at least five thousand (5,000) inhabitants: Provided, That the
creation thereof shall not reduce the population of the original barangay or barangays to less than the minimum
requirement prescribed herein.

To enhance the delivery of basic services in the indigenous cultural communities, barangays may be created
in such communities by an Act of Congress, notwithstanding the above requirement.

(b) The territorial jurisdiction of the new barangay shall be properly identified by metes and bounds or by
more or less permanent natural boundaries. The territory need not be contiguous if it comprises two (2) or
more islands.

(c) The governor or city mayor may prepare a consolidation plan for barangays, based on the criteria
prescribed in this Section, within his territorial jurisdiction. The plan shall be submitted to the sangguniang
panlalawigan or sangguniang panlungsod concerned for appropriate action. In the case of municipalities
within the Metropolitan Manila area and other metropolitan political subdivisions, the barangay consolidation
plan can be prepared and approved by the sangguniang bayan concerned.

LGC-IRR: ARTICLE 14. Barangays. – (a) Creation of barangays by the sangguniang panlalawigan shall require
prior recommendation of the sangguniang bayan.

(b) New barangays in the municipalities within MMA shall be created only by Act of Congress, subject to the
limitations and requirements prescribed in this Article.
 (c) Notwithstanding the population requirement, a barangay may be created in the indigenous cultural
communities by Act of Congress upon recommendation of the LGU or LGUs where the cultural community is
located.

(d) A barangay shall not be created unless the following requisites are present:

(1) Population – which shall not be less than two thousand (2,000) inhabitants, except in
municipalities and cities within MMA and other metropolitan political subdivisions as may be created
by law, or in highly-urbanized cities where such territory shall have a population of at least five
thousand (5,000) inhabitants, as certified by the NSO. The creation of a barangay shall not reduce
the population of the original barangay or barangays to less than the prescribed minimum/

(2) Land Area – which must be contiguous, unless comprised by two (2) or more islands. The
territorial jurisdiction of a barangay sought to be created shall be properly identified by metes and
bounds or by more or less permanent natural boundaries.

Municipality:

LGC: SEC. 442. Requisites for Creation. – (a) A municipality may be created if it has an average annual income, as
certified by the provincial treasurer, or at least Two million five hundred thousand pesos (P2,500,000.00) for the last
two (2) consecutive years based on the 1991 constant prices; a population of at least twenty-five thousand (25,000)
inhabitants as certified by the National Statistics Office; and a contiguous territory of at least fifty (50) square
kilometers as certified by the Lands

Management Bureau: Provided, That the creation thereof shall not reduce the land area, population or
income of the original municipality or municipalities at the time of said creation to less than the minimum
requirements prescribed herein.

(b) The territorial jurisdiction of a newly-created municipality shall be properly identified by metes and
bounds. The requirement on land area shall not apply where the municipality proposed to be created is
composed of one (1) or more islands. The territory need not be contiguous if it comprises two (2) or more
islands.

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

(d) Municipalities existing as of the date of effectivity of this Code shall continue to exist and operate as
such. Existing municipal districts organized pursuant to presidential issuances or executive orders and which
have their respective set of elective municipal officials holding office at the time of the effectivity of this Code
shall henceforth be considered regular municipalities.

LGC-IRR: ARTICLE 13. Municipalities. – (a) Requisites for Creation – A municipality shall not be created unless the
following requisites are present:

(i) Income – An average annual income of not less than Two Million Five Hundred Thousand Pesos
(₱2,500,000.00), for the immediately preceding two (2) consecutive years based on 1991 constant prices, as
certified by the provincial treasurer. The average annual income shall include the income accruing to the
general fund, exclusive of special funds, special accounts, transfers, and nonrecurring income;

(ii) Population – which shall not be less than twenty five thousand (25,000) inhabitants, as certified by NSO;
and

(iii) Land area – which must be contiguous with an area of at least fifty (50) square kilometers, as certified by
LMB. The territory need not be contiguous if it comprises two (2) or more islands. The requirement on land
area shall not apply where the proposed municipality is composed of one (1) or more islands. The territorial
jurisdiction of a municipality sought to be created shall be properly identified by metes and bounds.

The creation of a new municipality 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.

City:

LGC: SEC. 450. Requisites for Creation. – (a) A municipality or a cluster of barangays may be converted into a
component city if it has an average annual income, as certified by the Department of Finance, of at least Twenty
million pesos (₱20,000,000.00) for the last two (2) consecutive years based on 1991 constant prices, and if it has
either of the following requisities:
 (i) a contiguous territory of at least one hundred (100) square kilometers, as certified by the Lands
Management Bureau; or,

(ii) a population of not less than one hundred fifty thousand (150,000) inhabitants, as certified by the
National Statistics Office: Provided, That, the creation thereof shall not reduce the land area,
population, and income of the original unit or units at the time of said creation to less than the
minimum requirements prescribed herein.

(b) The territorial jurisdiction of a newly-created city shall be properly identified by metes and bounds. The
requirement on land area shall not apply where the city proposed to be created is composed of one (1) or
more islands. The territory need not be contiguous if it comprises two (2) or more islands.

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

LGC-IRR: ARTICLE 11. Cities. – (a) Requisites for creation – A city 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 one hundred fifty thousand (150,000)
inhabitants, as certified by the NSO; or land area which must be contiguous with an area of at least one
hundred (100) 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 city is composed of one (1) or
more islands. The territorial jurisdiction of a city sought to be created shall be properly identified by metes
and bounds.

The creation of a new city 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.

Provinces:

LGC: 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
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.

LGC-IRR: ARTICLE 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 non-recurring income; and

(2) Population or land area – Population which shall not be less than two hundred fifty thousand (250,000)
inhabitants, as certified by NSO; 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.

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. (Emphasis supplied.)

It bears scrupulous notice that from the above cited provisions, with respect to the creation of barangays, land area
is not a requisite indicator of viability. However, with respect to the creation of municipalities, component cities, and
provinces, the three (3) indicators of viability and projected capacity to provide services, i.e., income, population,
and land area, are provided for.

But it must be pointed out that when the local government unit to be created consists of one (1) or more islands, it is
exempt from the land area requirement as expressly provided in Section 442 and Section 450 of the LGC if the local
government unit to be created is a municipality or a component city, respectively. This exemption is absent in the
enumeration of the requisites for the creation of a province under Section 461 of the LGC, although it is expressly
stated under Article 9(2) of the LGC-IRR.

There appears neither rhyme nor reason why this exemption should apply to cities and municipalities, but not to
provinces. In fact, considering the physical configuration of the Philippine archipelago, there is a greater likelihood
that islands or group of islands would form part of the land area of a newly-created province than in most cities or
municipalities. It is, therefore, logical to infer that the genuine legislative policy decision was expressed in Section
442 (for municipalities) and Section 450 (for component cities) of the LGC, but was inadvertently omitted in Section
461 (for provinces). Thus, when the exemption was expressly provided in Article 9(2) of the LGC-IRR, the inclusion
was intended to correct the congressional oversight in Section 461 of the LGC – and to reflect the true legislative
intent. It would, then, be in order for the Court to uphold the validity of Article 9(2) of the LGC-IRR.

This interpretation finds merit when we consider the basic policy considerations underpinning the principle of local
autonomy.

Section 2 of the LGC, of which paragraph (a) is pertinent to this case, provides—

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.
Toward 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.

This declaration of policy is echoed in Article 3(a) of the LGC-IRR 26 and in the Whereas clauses of Administrative
Order No. 270,27 which read—

WHEREAS, Section 25, Article II of the Constitution mandates that the State shall ensure the autonomy of local
governments;

WHEREAS, pursuant to this declared policy, Republic Act No. 7160, otherwise known as the Local Government
Code of 1991, affirms, among others, 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;

WHEREAS, Section 533 of the Local Government Code of 1991 requires the President to convene an Oversight
Committee for the purpose of formulating and issuing the appropriate rules and regulations necessary for the
efficient and effective implementation of all the provisions of the said Code; and

WHEREAS, the Oversight Committee, after due deliberations and consultations with all the concerned sectors of
society and consideration of the operative principles of local autonomy as provided in the Local Government Code
of 1991, has completed the formulation of the implementing rules and regulations; x x x

Consistent with the declared policy to provide local government units genuine and meaningful local autonomy,
contiguity and minimum land area requirements for prospective local government units should be liberally construed
in order to achieve the desired results. The strict interpretation adopted by the February 10, 2010 Decision could
prove to be counter-productive, if not outright absurd, awkward, and impractical. Picture an intended province that
consists of several municipalities and component cities which, in themselves, also consist of islands. The
component cities and municipalities which consist of islands are exempt from the minimum land area requirement,
pursuant to Sections 450 and 442, respectively, of the LGC. Yet, the province would be made to comply with the
minimum land area criterion of 2,000 square kilometers, even if it consists of several islands. This would mean that
Congress has opted to assign a distinctive preference to create a province with contiguous land area over one
composed of islands — and negate the greater imperative of development of self-reliant communities, rural
progress, and the delivery of basic services to the constituency. This preferential option would prove more difficult
and burdensome if the 2,000-square-kilometer territory of a province is scattered because the islands are separated
by bodies of water, as compared to one with a contiguous land mass.

Moreover, such a very restrictive construction could trench on the equal protection clause, as it actually defeats the
purpose of local autonomy and decentralization as enshrined in the Constitution. Hence, the land area requirement
should be read together with territorial contiguity.

Another look at the transcript of the deliberations of Congress should prove enlightening:

CHAIRMAN ALFELOR. Can we give time to Congressman Chiongbian, 28 with respect to his…

CHAIRMAN LINA. Okay.

HON. CHIONGBIAN. At the outset, Chairman Lina, we would like to apprise the distinguished Senator about the
action taken by the House, on House Bill No. 7166. This was passed about two years ago and has been pending in
the Senate for consideration. This is a bill that I am not the only one involved, including our distinguished Chairman
here. But then we did want to sponsor the bill, being the Chairman then of the Local Government.

So, I took the cudgels for the rest of the Congressmen, who were more or less interested in the creation of the new
provinces, because of the vastness of the areas that were involved.

At any rate, this bill was passed by the House unanimously without any objection. And as I have said a while ago,
that this has been pending in the Senate for the last two years. And Sen. Pimentel himself was just in South
Cotabato and he delivered a speech that he will support this bill, and he says, that he will incorporate this in the
Local Government Code, which I have in writing from him. I showed you the letter that he wrote, and naturally, we in
the House got hold of the Senate version. It becomes an impossibility for the whole Philippines to create a new
province, and that is quite the concern of the respective Congressmen.

Now, insofar as the constitutional provision is concerned, there is nothing to stop the mother province from voting
against the bill, if a province is going to be created.

So, we are talking about devolution of powers here. Why is the province not willing to create another province, when
it can be justified. Even Speaker Mitra says, what will happen to Palawan? We won’t have one million people there,
and if you look at Palawan, there will be about three or four provinces that will comprise that island. So, the
development will be hampered.

Now, I would like to read into the record the letter of Sen. Pimentel, dated November 2, 1989. This was practically
about a year after 7166 was approved by the House, House Bill 7166.

On November 2, 1989, the Senator wrote me:

"Dear Congressman Chiongbian:

We are in receipt of your letter of 17 October. Please be informed that your House No. 7166 was incorporated in the
proposed Local Government Code, Senate Bill No. 155, which is pending for second reading.

Thank you and warm regards.

Very truly yours,"

That is the very context of the letter of the Senator, and we are quite surprised that the Senate has adopted another
position.

So, we would like – because this is a unanimously approved bill in the House, that’s the only bill that is involving the
present Local Government Code that we are practically considering; and this will be a slap on the House, if we do
not approve it, as approved by the lower House. This can be [an] irritant in the approval of the Conference
Committee Report. And I just want to manifest that insofar as the creation of the province, not only in my province,
but the other provinces. That the mother province will participate in the plebiscite, they can defeat the province, let’s
say, on the basis of the result, the province cannot be created if they lose in the plebiscite, and I don’t see why, we
should put this stringent conditions to the private people of the devolution that they are seeking.

So, Mr. Senator, I think we should consider the situation seriously, because, this is an approved version of the
House, and I will not be the one to raise up and question the Conference Committee Report, but the rest of the
House that are interested in this bill. And they have been approaching the Speaker about this. So, the Speaker
reminded me to make sure that it takes the cudgel of the House approved version.
So, that’s all what I can say, Mr. Senator, and I don’t believe that it is not, because it’s the wish of the House, but
because the mother province will participate anyhow, you vote them down; and that is provided for in the
Constitution. As a matter of fact, I have seen the amendment with regards to the creation of the city to be urbanized,
subject to the plebiscite. And why should we not allow that to happen in the provinces! In other words, we don’t want
the people who wants to create a new province, as if they are left in the devolution of powers, when they feel that
they are far away from civilization.

Now, I am not talking about other provinces, because I am unaware, not aware of their situation. But the province of
South Cotabato has a very unique geographical territorial conglomerations. One side is in the other side of the Bay,
of Sarangani Bay. The capital town is in the North; while these other municipalities are in the East and in the West.
And if they have to travel from the last town in the eastern part of the province, it is about one hundred forty
kilometers to the capital town. And from the West side, it is the same distance. And from the North side, it is about
one hundred kilometers. So that is the problem there. And besides, they have enough resources and I feel that, not
because I am interested in the province, I am after their welfare in the future. Who am I to dictate on those people? I
have no interest but then I am looking at the future development of these areas.

As a matter of fact, if I am in politics, it’s incidental; I do not need to be there, but I can foresee what the creation of a
new province will bring to these people. It will bring them prosperity; it will bring them more income, and it will
encourage even foreign investors. Like the PAP now, they are concentrating in South Cotabato, especially in the
City of

General Santos and the neighboring municipalities, and they are quite interested and even the AID people are
asking me, "What is holding the creation of a new province when practically you need it?" It’s not 20 or 30 kilometers
from the capital town; it’s about 140 kilometers. And imagine those people have to travel that far and our road is not
like Metropolitan Manila. That is as far as from here to Tarlac. And there are municipalities there that are just one
municipality is bigger than the province of La Union. They have the income. Of course, they don’t have the
population because that’s a part of the land of promise and people from Luzon are migrating everyday because they
feel that there are more opportunities here.

So, by creating the new provinces, not only in my case, in the other cases, it will enhance the development of the
Philippines, not because I am interested in my province. Well, as far as I am concerned, you know, I am in the
twilight years of my life to serve and I would like to serve my people well. No personal or political interest here. I
hope the distinguished Chairman of the Committee will appreciate the House Bill 7166, which the House has
already approved because we don’t want them to throw the Conference Committee Report after we have worked
that the house Bill has been, you know, drawn over board and not even considered by the Senate. And on top of
that, we are considering a bill that has not yet been passed. So I hope the Senator will take that into account.

Thank you for giving me this time to explain.

CHAIRMAN LINA. Thank you very much, Congressman James. We will look into the legislative history of the
Senate version on this matter of creation of provinces. I am sure there was an amendment. As I said, I’ll look into it.
Maybe the House version was incorporated in toto, but maybe during the discussion, their amendments were
introduced and, therefore, Senator Pimentel could not hold on to the original version and as a result new criteria
were introduced.

But because of the manifestation that you just made, we will definitely, when we reach a book, Title IV, on the matter
of provinces, we will look at it sympathetically from your end so that the objective that you want [to] achieve can be
realized. So we will look at it with sympathy. We will review our position on the matter, how we arrived at the Senate
version and we will adopt an open mind definitely when we come into it.

CHAIRMAN ALFELOR. Kanino ‘yan?

CHAIRMAN LINA. Book III.

CHAIRMAN ALFELOR. Title?

CHAIRMAN LINA. Title IV.

CHAIRMAN ALFELOR. I have been pondering on the case of James, especially on economic stimulation of a
certain area. Like our case, because I put myself on our province, our province is quite very big. It’s composed of
four (4) congressional districts and I feel it should be five now. But during the Batasan time, four of us talked and
conversed proposing to divide the province into two.

There are areas then, when since time immemorial, very few governors ever tread on those areas. That is, maybe
you’re acquainted with the Bondoc Peninsula of Quezon, fronting that is Ragay Gulf. From Ragay there is a long
stretch of coastal area. From Albay going to Ragay, very few governors ever tread [there] before, even today. That
area now is infested with NPA. That is the area of Congressman Andaya.
Now, we thought that in order to stimulate growth, maybe provincial aid can be extended to these areas. With a big
or a large area of a province, a certain administrator or provincial governor definitely will have no sufficient time. For
me, if we really would like to stimulate growth, I believe that an area where there is physical or geographical
impossibilities, where administrators can penetrate, I think we have to create certain provisions in the law where
maybe we can treat it with special considerations.

Now, we went over the graduate scale of the Philipppine Local Government Data as far as provinces are concerned.
It is very surprising that there are provinces here which only composed of six municipalities, eight municipalities,
seven municipalities. Like in Cagayan, Tuguegarao, there are six municipalities. Ah, excuse me, Batanes.

CHAIRMAN LINA. Will you look at the case of --- how many municipalities are there in Batanes province?

CHAIRMAN ALFELOR. Batanes is only six.

CHAIRMAN LINA. Six town. Siquijor?

CHAIRMAN ALFELOR. Siquijor. It is region?

CHAIRMAN LINA. Seven.

CHAIRMAN ALFELOR.L Seven. Anim.

CHAIRMAN LINA. Six also.

CHAIRMAN ALFELOR. Six also.

CHAIRMAN LINA. It seems with a minimum number of towns?

CHAIRMAN ALFELOR. The population of Siquijor is only 70 thousand, not even one congressional district. But
tumaas in 1982. Camiguin, that is Region 9. Wala dito. Nagtataka nga ako ngayon.

CHAIRMAN LINA. Camiguin, Camiguin.

CHAIRMAN ALFELOR. That is region? Camiguin has five municipalities, with a population of 63 thousand. But we
do not hold it against the province because maybe that’s one stimulant where growth can grow, can start. The land
area for Camiguin is only 229 square kilometers. So if we hard fast on requirements of, we set a minimum for every
province, palagay ko we just leave it to legislation, eh. Anyway, the Constitution is very clear that in case we would
like to divide, we submit it to a plebiscite. Pabayaan natin ang tao. Kung maglalagay tayo ng set ng minimum, tila
yata mahihirapan tayo, eh. Because what is really the thrust of the Local Government Code? Growth. To devolve
powers in order for the community to have its own idea how they will stimulate growth in their respective areas.

So, in every geographical condition, mayroon sariling id[i]osyncracies eh, we cannot make a generalization.

CHAIRMAN LINA. Will the creation of a province, carved out of the existing province because of some geographical
id[i]osyncracies, as you called it, stimulate the economic growth in the area or will substantial aid coming from the
national government to a particular area, say, to a municipality, achieve the same purpose?

CHAIRMAN ALFELOR. Ano tayo dito sa budget. All right, here is a province. Usually, tinitingnan lang yun, provision
eh, hindi na yung composition eh. You are entitled to, say, 20% of the area.

There’s a province of Camarines Sur which have the same share with that of Camiguin and Siquijor, but Camiguin is
composed only of five municipalities; in Siquijor, it’s composed of six, but the share of Siquijor is the same share
with that of the province of Camarines Sur, having a bigger area, very much bigger.

That is the budget in process.

CHAIRMAN LINA. Well, as I said, we are going to consider this very seriously and even with sympathy because of
the explanation given and we will study this very carefully. 29

The matters raised during the said Bicameral Conference Committee meeting clearly show the manifest intention of
Congress to promote development in the previously underdeveloped and uninhabited land areas by allowing them
to directly share in the allocation of funds under the national budget. It should be remembered that, under Sections
284 and 285

of the LGC, the IRA is given back to local governments, and the sharing is based on land area, population, and local
revenue.30
Elementary is the principle that, if the literal application of the law results in absurdity, impossibility, or injustice, then
courts may resort to extrinsic aids of statutory construction, such as the legislative history of the law, 31 or may
consider the implementing rules and regulations and pertinent executive issuances in the nature of executive and/or
legislative construction. Pursuant to this principle, Article 9(2) of the LGC-IRR should be deemed incorporated in the
basic law, the LGC.

It is well to remember that the LGC-IRR was formulated by the Oversight Committee consisting of members of both
the Executive and Legislative departments, pursuant to Section 533 32 of the LGC. As Section 533 provides, the
Oversight Committee shall formulate and issue the appropriate rules and regulations necessary for the efficient and
effective implementation of any and all provisions of this Code, thereby ensuring compliance with the principles of
local autonomy as defined under the Constitution. It was also mandated by the Constitution that a local government
code shall be enacted by Congress, to wit—

Section 3. The Congress shall enact a local government code which shall provide for a more responsive and
accountable local government structure instituted through a system of decentralization with effective mechanisms of
recall, initiative, and referendum, allocate among the different local government units their powers, responsibilities,
and resources, and provide for the qualifications, election, appointment and removal, term, salaries, powers and
functions and duties of local officials, and all other matters relating to the organization and operation of the local
units. (Emphasis supplied.)

These State policies are the very reason for the enactment of the LGC, with the view to attain decentralization and
countryside development. Congress saw that the old LGC, Batas Pambansa Bilang 337, had to be replaced with a
new law, now the LGC of 1991, which is more dynamic and cognizant of the needs of the Philippines as an
archipelagic country. This accounts for the exemption from the land area requirement of local government units
composed of one or more islands, as expressly stated under Sections 442 and 450 of the LGC, with respect to the
creation of municipalities and cities, but inadvertently omitted from Section 461 with respect to the creation of
provinces. Hence, the void or missing detail was filled in by the Oversight Committee in the LGC-IRR.

With three (3) members each from both the Senate and the House of Representatives, particularly the chairpersons
of their respective Committees on Local Government, it cannot be gainsaid that the inclusion by the Oversight
Committee of the exemption from the land area requirement with respect to the creation of provinces consisting of
one (1) or more islands was intended by Congress, but unfortunately not expressly stated in Section 461 of the
LGC, and this intent was echoed through an express provision in the LGC-IRR. To be sure, the Oversight
Committee did not just arbitrarily and whimsically insert such an exemption in Article 9(2) of the LGC-IRR. The
Oversight Committee evidently conducted due deliberation and consultations with all the concerned sectors of
society and considered the operative principles of local autonomy as provided in the LGC when the IRR was
formulated.33 Undoubtedly, this amounts not only to an executive construction, entitled to great weight and respect
from this Court,34 but to legislative construction as well, especially with the inclusion of representatives from the four
leagues of local government units as members of the Oversight Committee.

With the formulation of the LGC-IRR, which amounted to both executive and legislative construction of the LGC, the
many details to implement the LGC had already been put in place, which Congress understood to be impractical
and not too urgent to immediately translate into direct amendments to the LGC. But Congress, recognizing the
capacity and viability of Dinagat to become a full-fledged province, enacted R.A. No. 9355, following the exemption
from the land area requirement, which, with respect to the creation of provinces, can only be found as an express
provision in the LGC-IRR. In effect, pursuant to its plenary legislative powers, Congress breathed flesh and blood
into that exemption in Article 9(2) of the LGC-IRR and transformed it into law when it enacted R.A. No. 9355
creating the Island Province of Dinagat.

Further, the bill that eventually became R.A. No. 9355 was filed and favorably voted upon in both Chambers of
Congress. Such acts of both Chambers of Congress definitively show the clear legislative intent to incorporate into
the LGC that exemption from the land area requirement, with respect to the creation of a province when it consists
of one or more islands, as expressly provided only in the LGC-IRR. Thereby, and by necessity, the LGC was
amended by way of the enactment of R.A. No. 9355.

What is more, the land area, while considered as an indicator of viability of a local government unit, is not conclusive
in showing that Dinagat cannot become a province, taking into account its average annual income of
₱82,696,433.23 at the time of its creation, as certified by the Bureau of Local Government Finance, which is four
times more than the minimum requirement of ₱20,000,000.00 for the creation of a province. The delivery of basic
services to its constituents has been proven possible and sustainable. Rather than looking at the results of the
plebiscite and the May 10, 2010 elections as mere fait accompli circumstances which cannot operate in favor of
Dinagat’s existence as a province, they must be seen from the perspective that Dinagat is ready and capable of
becoming a province. This Court should not be instrumental in stunting such capacity. As we have held in League of
Cities of the Philippines v. Commission on Elections 35 —

Ratio legis est anima. The spirit rather than the letter of the law. A statute must be read according to its spirit or
intent, for what is within the spirit is within the statute although it is not within its letter, and that which is within the
letter but not within the spirit is not within the statute. Put a bit differently, that which is within the intent of the
lawmaker is as much within the statute as if within the letter, and that which is within the letter of the statute is not
within the statute unless within the intent of the lawmakers. Withal, courts ought not to interpret and should not
accept an interpretation that would defeat the intent of the law and its legislators.

So as it is exhorted to pass on a challenge against the validity of an act of Congress, a co-equal branch of
government, it behooves the Court to have at once one principle in mind: the presumption of constitutionality of
statutes. This presumption finds its roots in the tri-partite system of government and the corollary separation of
powers, which enjoins the three great departments of the government to accord a becoming courtesy for each
other’s acts, and not to interfere inordinately with the exercise by one of its official functions. Towards this end,
courts ought to reject assaults against the validity of statutes, barring of course their clear unconstitutionality. To
doubt is to sustain, the theory in context being that the law is the product of earnest studies by Congress to ensure
that no constitutional prescription or concept is infringed. Consequently, before a law duly challenged is nullified, an
unequivocal breach of, or a clear conflict with, the Constitution, not merely a doubtful or argumentative one, must be
demonstrated in such a manner as to leave no doubt in the mind of the Court.

WHEREFORE, the Court resolved to:

1. GRANT the Urgent Motion to Recall Entry of Judgment by movants-intervenors, dated and filed on
October 29, 2010;

2. RECONSIDER and SET ASIDE the July 20, 2010 Resolution, and GRANT the Motion for Leave to
Intervene and to File and to Admit Intervenors’ Motion for Reconsideration of the Resolution dated July 20,
2010;

3. GRANT the Intervenors’ Motion for Reconsideration of the Resolution dated May 12, 2010. The May 12,
2010 Resolution is RECONSIDERED and SET ASIDE. 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 VALID.
Accordingly, Republic Act No. 9355 (An Act Creating the Province of Dinagat Islands) is declared as VALID
and CONSTITUTIONAL, and the proclamation of the Province of Dinagat Islands and the election of the
officials thereof are declared VALID; and

4. The petition is DISMISSED.

No pronouncement as to costs.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

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.:

Before us are two Motions for Reconsideration of the Decision dated February 10, 2010 − one filed by the Office of
the Solicitor General (OSG) in behalf of public respondents, and the other filed by respondent Governor Geraldine
Ecleo Villaroman, representing the Province of Dinagat Islands. The dispositive portion of the Decision reads:

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.

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

I.

The Province of Dinagat Islands was created in accordance with the provisions of the 1987 Constitution and the
Local Government Code of 1991. Article 9 of the Implementing Rules and Regulations is merely interpretative of
Section 461 of the Local Government Code.

II.

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

III.

Recent and prevailing jurisprudence considers the operative fact doctrine as a reason for upholding the validity and
constitutionality of laws involving the creation of a new local government unit as in the instant case.

As regards the first ground, the movants reiterate the same arguments in their respective Comments that aside from
the undisputed compliance with the income requirement, Republic Act (R.A.) No. 9355, creating the Province of
Dinagat Islands, has also complied with the population and land area requirements.

The arguments are unmeritorious and have already been passed upon by the Court in its Decision, ruling that R.A.
No. 9355 is unconstitutional, since it failed to comply with either the territorial or population requirement contained in
Section 461 of R.A. No. 7160, otherwise known as the Local Government Code of 1991.

When the Dinagat Islands was proclaimed a new province on December 3, 2006, it had an official population of only
106,951 based on the 2000 Census of Population conducted by the National Statistics Office (NSO), which
population is short of the statutory requirement of 250,000 inhabitants.

Although the Provincial Government of Surigao del Norte conducted a special census of population in Dinagat
Islands in 2003, which yielded a population count of 371,000, the result was not certified by the NSO as required by
the Local Government Code.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 2007 Census of Population.
The NSO certified 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 specifically 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), specifically 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 certificate of compliance issued by the Lands Management Bureau was also based on the exemption under
paragraph 2, Article 9 of the IRR.

However, the Court held that paragraph 2 of Article 9 of the IRR is null and void, because the exemption is not
found in Section 461 of the Local Government Code. 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

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 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. 6

Justice Nachura contends that the stipulation in paragraph (b) qualifies 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 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 define 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 on verifiable indicators  of viability and projected capacity to provide
services, to wit:

(a) Income. — It must be sufficient, based on acceptable standards, to provide for all essential government
facilities and services and special functions commensurate with the size of its population, as expected of the
local government unit concerned;

(b) Population. — It shall be determined as the total number of inhabitants within the territorial jurisdiction of
the local government unit concerned; and

(c) Land area. — It must be contiguous, unless it comprises two (2) or more islands, or is separated by a
local government unit independent of the others; properly identified by metes and bounds with technical
descriptions; and sufficient to provide for such basic services and facilities to meet the requirements of its
populace.

Compliance with the foregoing indicators shall be attested to by the Department of Finance (DOF), the National
Statistics Office (NSO), and the Lands Management Bureau (LMB) of the Department of Environment and Natural
Resources (DENR).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 sufficient to provide for
such basic services and facilities to meet the requirements of its populace.

Therefore, there are two requirements for land area: (1) the land area must be contiguous; and (2) the land area
must be sufficient to provide for such basic services and facilities to meet the requirements of its populace. A
sufficient land area in the creation of a province is at least 2,000 square kilometers, as provided by Section 461 of
the Local Government Code .

Thus, Section 461 of the Local Government Code, providing the requisites for the creation of a province, specifically
states the requirement of "a contiguous territory of at least two thousand (2,000) square kilometers."

Hence, contrary to the arguments of both movants, the requirement of a contiguous territory and the requirement of
a land area of at least 2,000 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.

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 461of the Local Government Code.

Where the law is free from ambiguity, the court may not introduce exceptions or conditions where none is provided
from considerations of convenience, public welfare, or for any laudable purpose; 10 neither may it engraft into the law
qualifications not contemplated, 11 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. 12 Where the law speaks in
clear and categorical language, there is no room for interpretation, but only for application. 13

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." 14

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.

In Fariñas v. The Executive Secretary,15 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, 16 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 ₱100 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 ₱100 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. 1avvphi1

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. 17

Tan v. Comelec18 held:

x x x [T]he fact that such plebiscite had been held and a new province proclaimed and its officials 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 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, confident 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.