g.1 Navarro v. Ermita

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 : p
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: aCSHDI
Mainland 281,111
Surigao City 118,534
Siargao Island & Bucas
CD Technologies Asia, Inc. © 2021 cdasiaonline.com
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 CSAcTa
On January 26, 2007, a new set of provincial officials took their oath of
office following their appointment by President Gloria Macapagal-Arroyo.
Another set of provincial officials was elected during the synchronized
national and local elections held on May 14, 2007. On July 1, 2007, the
elected provincial officials took their oath of office; hence, the Province of
Dinagat Islands began its corporate existence. 7
Petitioners contended that the creation of the Province of Dinagat
Islands under R.A. No. 9355 is not valid because it failed to comply with
either the population or land area requirement prescribed by the Local
Government Code.
Petitioners prayed that R.A. No. 9355 be declared unconstitutional, and
that all subsequent appointments and elections to the new vacant positions
in the newly created Province of Dinagat Islands be declared null and void.
They also prayed for the return of the municipalities of the Province of
Dinagat Islands and the return of the former districts to the mother Province
of Surigao del Norte.
Petitioners raised the following issues:
I
WHETHER OR NOT REPUBLIC ACT NO. 9355, CREATING THE NEW

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

THE RESPONDENTS IS AN ACT OF GERRYMANDERING.
III
WHETHER OR NOT THE RESULT OF THE PLEBISCITE IS CREDIBLE AND

TRULY REFLECTS THE MANDATE OF THE PEOPLE. 8
In her Memorandum, respondent Governor Geraldine B. Ecleo-

Villaroman of the Province of Dinagat Islands raises procedural issues. She
contends that petitioners do not have the legal standing to question the
constitutionality of the creation of the Province of Dinagat, since they have
not been directly injured by its creation and are without substantial interest
over the matter in controversy. Moreover, she alleges that the petition is
moot and academic because the existence of the Province of Dinagat Islands
has already commenced; hence, the petition should be dismissed. THCSAE
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. ADTCaI
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: cHaCAS
(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. TcEaAS
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. HAaECD
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 DICSaH
(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. IHTASa
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. IcDCaT
In this case, the pertinent provision in the IRR did not fill in any detail
in accordance with a known standard provided for by the law. Instead, the
IRR added an exemption to the standard or criteria prescribed by the
Local Government Code in the creation of a province as regards the land
area requirement, which exemption is not found in the Code . As such,
the provision in the IRR that the land area requirement shall not apply where
the proposed province is composed of one or more islands is not in
conformity with the standard or criteria prescribed by the Local Government
Code; hence, it is null and void.
Contrary to the contention of respondents, the extraneous provision
cannot be considered as germane to the purpose of the law to develop
territorial and political subdivisions into self-reliant communities because, in
the first place, it already conflicts with the criteria prescribed by the law in
creating a territorial subdivision.
Further, citing Galarosa v. Valencia, 26 the Office of the Solicitor
General contends that the IRRs issued by the Oversight Committee
composed of members of the legislative and executive branches of the
government are entitled to great weight and respect, as they are in the
nature of executive construction.
The case is not in point. In Galarosa, the issue was whether or not
Galarosa could continue to serve as a member of the Sangguniang Bayan
beyond June 30, 1992, the date when the term of office of the elective
members of the Sangguniang Bayan of Sorsogon expired. Galarosa was the
incumbent president of the Katipunang Bayan or Association of Barangay
Councils (ABC) of the Municipality of Sorsogon, Province of Sorsogon; and
was appointed as a member of the Sangguniang Bayan (SB) of Sorsogon
pursuant to Executive Order No. 342 in relation to Sec. 146 of Batas
Pambansa Blg. 337, the former Local Government Code.
Sec. 494 of the Local Government Code of 199127 states that the duly
elected presidents of the liga [ng mga barangay] at the municipal, city and
provincial levels, including the component cities and municipalities of
Metropolitan Manila, shall serve as ex officio members of the sangguniang
bayan, sangguniang panglungsod, and sangguniang panlalawigan,
respectively. They shall serve as such only during their term of office as
presidents of the liga chapters which, in no case, shall be beyond the term of
office of the sanggunian concerned. The section, however, does not fix the
specific duration of their term as liga president. The Court held that this was
left to the by-laws of the liga pursuant to Art. 211 (g) of the Rules and
Regulations Implementing the Local Government Code of 1991. Moreover,
there was no indication that Secs. 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.HaTAEc
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. SaIACT
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 . . . ." 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. aSIETH
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.
xxx xxx xxx
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. DHIETc
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? . . .
THE CHAIRMAN.
Thank you, Governor. . . .
xxx xxx xxx
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. TCDHIc
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 . . . 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. TEcCHD
2065?
MS. VERGARA.
2065 po.
xxx xxx xxx
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. . . .
TCcDaE
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. THaAEC
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
a n d 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. TCSEcI
SO ORDERED.
Puno, C.J., Carpio, Corona, Carpio Morales, Velasco, Jr., Nachura,
Leonardo-De Castro, Brion, Bersamin, Del Castillo, Abad, Villarama, Jr., Perez
and Mendoza, JJ., concur.
Separate Opinions
NACHURA, J., dissenting:
The ponencia of Justice Peralta seeks to strike down an act of both the
legislative and the executive branches — the law creating the province of
Dinagat Islands. I register my dissent to the ponencia for I find this judicial
interference unnecessary and, in fact, unwarranted in law. Petitioners have
not presented a genuine constitutional issue requiring this Court's
intervention. In petitioners' earlier and similarly-worded petition — G.R. No.
175158 3/4 the Court found no compelling reason to brush aside
technicalities of procedure and resolve the merits of the case. Just like G.R.
No. 175158, the present petition deserves the same dismissive treatment
from the Court.
I begin with a brief restatement of the pertinent antecedent events.
On October 2, 2006, the President of the Republic approved Republic
Act (R.A.) No. 9355, 1 the law creating the province of Dinagat Islands. On
December 3 of the same year, the Commission on Elections conducted the
plebiscite for the ratification of the said creation. This yielded 69,943
affirmative votes and 63,502 negative votes. 2 Having gotten the nod of the
people, the President appointed the interim set of provincial officials who
consequently took their oath of office on January 26, 2007. Thereafter, in the
May 14, 2007 National and Local Elections, the Dinagatnons elected their
new set of provincial officials who assumed office on July 1, 2007. 3
Not amenable to the advancement of their locality, petitioners, former
politicians in the mother province of Surigao del Norte, filed before this
Court, on November 10, 2006, G.R. No. 175158, a petition for certiorari and
prohibition assailing the constitutionality of the creation of the province. 4 As
aforementioned, the Court dismissed the petition on technical grounds —
defect in the verification and certification of non-forum shopping and failure
by the petitioners' counsel to indicate an updated Integrated Bar of the
Philippines official receipt. On motion for reconsideration, the Court rejected
petitioners' entreaty for liberality in the application of procedural rules. 5 CIScaA
Unperturbed, petitioners filed their new petition, the instant case,

contending in the main that R.A. No. 9355 is unconstitutional. They posit
that the creation of Dinagat Islands did not meet either the land area or the
population requirement for the creation of a province. At the time of the
passage of the law, the land area of the locality was only 802.12 square
kilometers, and its population, only 106,951. 6 It is petitioners' submission
that the enactment of R.A. No. 9355 violates Section 461 of R.A. No. 7160 or
the Local Government Code (LGC) of 1991, 7 and Section 10, Article X of the
Constitution.
I find no merit in petitioners' contention.
Article X, Section 10 of the Constitution provides that —
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 approval by a majority of the votes
cast in a plebiscite in the political units directly affected.
For the creation of a province, the LGC provides:

Section 461. Requisites for Creation. — (a) A province may be
following requisites:

square kilometers, as certified by the Lands Management Bureau; or
(250,000) inhabitants as certified by the National Statistics Office:
area, population and income of the original unit or units at the time of
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.
transfers, and non-recurring income. SDTIHA
Here, the Department of Finance certified that the province of Dinagat

Islands has an average annual income of P82,696,433.22 based on 1991
constant prices. 8 As it already meets the primordial income criterion for a
province, Dinagat Islands needed only to comply with either the land area or
the population criterion.
At this point, I concur with the ponencia that Dinagat Islands does not
satisfy the 250,000 population requirement. When the law for its creation
was passed in 2006, the province only had a population of 106,951
inhabitants (based on the 2000 Census of Population and Housing) as
certified by the National Statistics Office. 9 Further, the 2007 Census of
Population reveals that it has only 120,813 inhabitants as of August 1, 2007.
10
I cannot, however, subscribe to the ponencia's holding that Dinagat

Islands fails to comply with the territorial requirement because it only has an
aggregate land area of 802.12 sq km. Let it be emphasized that the province
is comprised of the municipalities of Basilisa, Cagdianao, Dinagat, Libjo
(Albor), Loreto, San Jose and Tubajon, and includes Hibuson Island and
approximately 47 islets under the jurisdiction of the said municipalities. This
fact relieves it from complying with the criterion that its territory must be
contiguous and at least 2,000 sq km in area. Article 9 (a) (2) of the Rules and
Regulations Implementing (IRR) the LGC of 1991 pertinently provides that
the territory need not be contiguous and the land area requirement shall not
apply where the proposed province is composed of islands, 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:
xxx xxx xxx

(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. 11
aIcDCT
The ponencia, however, declares that the portion in the IRR, which
reads, "[t]he land area requirement shall not apply where the proposed
province is composed of one (1) or more islands," is null and void for going
beyond the standard or criterion prescribed by Section 461 of the LGC, and,
thus, cannot be used as basis for Dinagat Islands' compliance with the
territorial requirement. The ponencia suggests that for the creation of a
province, even one composed of islands like the one in this petition, the
2,000-sq km territorial area requirement should still be met despite the
reality that its territory is not contiguous, precisely because portions of its
territory are separated by bodies of water.
I do not agree with the ponencia's proposition. The province of Dinagat
Islands, composed as it is of a group of islands, is exempt from compliance
not only with the territorial contiguity requirement but also with the 2,000-sq
km land area criterion. This proceeds from no less than Section 461 of the
LGC, which, for ready reference, I again quote —
Section 461. Requisites for Creation. — (a) A province may be
following requisites:

square kilometers, as certified by the Lands Management Bureau; or

area, population and income of the original unit or units at the time of
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.
transfers, and non-recurring income. 12
Significant in the provision is paragraph (b), underscored above, as it

provides for an exemption from the territorial criterion mentioned in
paragraph (a). TAacCE
The stipulation in paragraph (b), however, qualifies not merely the

word "contiguous" in paragraph (a) (i) in the same provision, but rather the
entirety of the latter paragraph. Paragraph (a) (i) of the provision, for
ready reference, reads:
(i) a contiguous territory of at least two thousand
(2,000) square kilometers, as certified by the Lands Management
Bureau[.]13
This whole paragraph on contiguity and land area, I repeat for emphasis, is
the one being referred to in the exemption from the territorial requirement in
paragraph (b). Thus, 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 sq km. This is because, as the law is
worded, contiguity and land area are not two distinct and separate
requirements. They qualify each other. For instance, a territory which is
contiguous but which is less than 2,000 sq km in land area will not qualify for
provincehood and, conversely, a territory which is 2,000 sq km in area but
which is not contiguous cannot become a province, following the general rule
in paragraph (a)(1). In other words, contiguity and land area are two
components of a single requirement — one cannot exist and serve no
purpose without the other, so much so that a release from compliance
with one component results, naturally and logically, in the
corresponding exemption from the other.
Indeed, an exemption from one of the two component requirements in
paragraph (a) (i) necessitates an exemption from the other component
requirement because the nonattendance of one results in the absence of a
reason for the other component requirement to effect a qualification. In
other words, a component requirement cannot apply without the other
because they qualify each other — one cannot be dissociated from the
other.
By rough analogy, the two components are like dicephalic conjoined
twins — two heads are attached to a single body. If one head is separated
from the other, then the twins die. In the same manner, the law, by providing
in paragraph (b) of Section 461 that the territory need not be contiguous if
the same is comprised of islands, must be interpreted as intended to
exempt such territory from the land area component requirement of
2,000 sq km. Because the two component requirements are inseparable,
the elimination of contiguity from the territorial criterion has the effect of a
coexistent eradication of the land area component. The territory of the
province of Dinagat Islands, therefore, comprising the major islands of
Dinagat and Hibuson, and approximately 47 islets, need not be contiguous
and need not have an area of at least 2,000 sq km following Section 461 of
the LGC. EDACSa
It will result in superfluity, if not absurdity, if paragraph (b) of the

provision is interpreted as referring only to the component requirement of
contiguity and not to both component requirements of contiguity and land
area. This is because contiguity does not always mean in contact by land.
Thus, in so far as islands are concerned, they are deemed contiguous
although separated by wide spans of navigable deep waters, 14 with the
exception of the high seas, because all lands separated by water touch one
another, in a sense, beneath the water. 15 The provision, then, as worded,
only means that the exemption in paragraph (b) refers to both the
component requirements on territory, that is, contiguity and land area, and
not merely to the first, standing alone. For, indeed, why will the law still
exempt the islands from the requirement of contiguity when they are already
legally contiguous?
By inference, Section 461, in effect, signifies that, if the proposed
province is composed of islands, its territory includes not only the land mass
above the water but that which is beneath it. Indeed, theoretically, if this
entire territory is measured — the one above and beneath the water, then
the 2,000 sq km land area would be met with facility. Separate units of
measure are, however, used to calculate dry land and that which is covered
by water. For expediency, the law, in providing for the criteria for the
creation of a province, has exempted groups of islands from the territorial
requirement, and this exemption includes the two component requirements
of contiguity and land area.
Parenthetically, the Court, more than two decades ago, in Tan v.
Commission on Elections, 16 declared in passing that territory means only
the mass of land area and excludes the waters over which a political unit
exercises control. This pronouncement in Tan is an obiter dictum, the main
issue in the petition for prohibition being the propriety of excluding from the
plebiscite for the ratification of the creation of Negros del Norte the
inhabitants of the mother province of Negros Occidental. Therefore, Tan
does not preclude the proper interpretation of Section 461 of the LGC as
exempting groups of islands from the territorial requirement for the creation
of provinces.
This interpretation of Section 461 is further in line with the law's thrust
of enabling the territorial and political subdivisions of the state to attain their
fullest development in order to make them more effective partners in the
attainment of national goals. 17 The Philippines is composed of 7,107 islands,
most of them are small and surrounded by vast bodies of water. The
constitution of provinces is aimed at administrative efficiency, effective
governance, more equitable delivery of basic services, and economic
development. If this Court is to prevent a group of islands, with skyrocketing
revenues, from organizing themselves into a province on account alone of
their small aggregate land mass, then it would be impeding their
advancement as self-reliant communities and, in the process, would hamper
the growth of the national economy — an eventuality obviously not
envisioned by both the Constitution and the LGC. IDaCcS

Congress, in fact, during its deliberations on what would later on be
enacted as the LGC, had paid, if at all it did, little attention to the territorial
requirement for the creation of provinces. Instead, it focused on the income
requirement and acknowledged the same to be the primordial criterion of
viability, thus —
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?
xxx xxx xxx
HON. LAGUADA:
The reason why we are willing to increase the income, double

than the House version, because we also believe that economic
viability is really a minimum. Land area and population are
functions really of the viability of the area, because where you
have an income level which would be the trigger point for
economic development, population will naturally increase
because there will be an immigration. However, if you disallow
the particular area from being converted into a province because
of population problems in the beginning, it will never be able to
reach the point where it could become a province simply because
it will never have the economic take off for it to trigger off that
economic development.
Now, we'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.
xxx xxx xxx
CHAIRMAN PIMENTEL:
Okay, what about land area?

HON. LUMAUIG:
1,500 square kilometers IcHDCS
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. LAGUADA:
Ne, Ne. A province is constituted for the purpose of
administrative efficiency and delivery of basic services.
CHAIRMAN PIMENTEL:
Right.
HON. LAGUADA:
Actually, when you come down to it, when government was
instituted, there is only one central government and then
everybody falls under that. But it was later on subdivided into
provinces for purposes of administrative efficiency.
CHAIRMAN PIMENTEL:
Okay.
HON. LAGUADA:
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: AEIHCS
Yeah, that's correct, but on the assumption that the province is

able to do it without being a burden to the national government.
That's the assumption.
HON. LAGUADA:
That's why we're going into the minimum income level. As we

said, if we go on a minimum income level, then we say, "this is
the trigger point at which this administration can take place." 18
Verily, economic viability is the primordial consideration in the

constitution of provinces, not population or territory. As to a province
composed of a group of islands separated by stretches of water, like the one
in this case, the proposition must apply with greater force. A contrary
position would prove to be growth-retardant to an economically viable group
of islands which have not yet politically separated from the larger mass of
land where the provincial capital sits. In a practical sense, it would also be
too cumbersome for the inhabitants to travel great lengths and over
unpredictable waters just to reach the capital, do their business and avail of
basic government services and facilities that ordinarily do not reach beyond
the immediate outskirts of the capital. Thus, Section 461, as discussed
above, exempts a proposed province composed of several islands from
complying with both the contiguity and land area components of the
territorial requirement for its creation. It is this interpretation that, logically,
impelled both the executive and legislative departments to enact R.A. No.
9355, the law creating the province of Dinagat Islands. We must accord
persuasive effect to this contemporaneous interpretation by the two equal
branches of government, and abide by the clear intent of the framers of the
law.
Cawaling, Jr. v. Commission on Elections 19 fittingly instructs that every
statute enjoys the presumption of constitutionality, owing to the doctrine of
separation of powers which imposes upon the three coordinate departments
of the Government a becoming courtesy for each other's acts. Every law,
being the joint act of the Legislature and the Executive, has passed careful
scrutiny to ensure that it is in accord with the fundamental law. Of course,
the Court may, nevertheless, declare a law, or portions thereof,
unconstitutional, where a petitioner has shown that there is a clear and
unequivocal breach of the Constitution, not merely a doubtful or
argumentative one. Here, as revealed in the above discussion, petitioners
have not shown that Dinagat Islands does not meet the criteria laid down in
Section 461 of the LGC for the creation of a province; thus, they cannot
assert that R.A. No. 9355 clearly and unequivocally breaches Article X,
Section 10 of the Constitution. Absent a genuine constitutional issue, the
petition fails in substance. The petition also breaches procedural standards
because when the inquiry is focused on the legal existence of a body politic,
the action is reserved to the State in a proceeding for quo warranto, 20 not
through a petition for certiorari.
In light of the above disquisition, I vote for the dismissal of the petition.
AIHECa
Footnotes
1. On November 14, 2006, petitioners Rodolfo Navarro, Victor F. Bernal, Rohito
C. Madelo, Clemente G. Sandigan, Jr., Jerry R. Centro, Jose V. Begil, Jr., Rene
O. Medina and Jamar D. Gavino filed before this Court a Petition for Certiorari
and Prohibition with Prayer for Temporary Restraining Order against
Secretary Eduardo Ermita, the Senate of the Philippines, the House of
Representatives, the COMELEC and the Provincial Government and Provincial
Treasurer of Surigao del Norte. Petitioners sought for the declaration of R.A.
No. 9355 as unconstitutional and invalid, and prayed that the COMELEC be
enjoined from conducting a plebiscite pending resolution on the
constitutionality of R.A. No. 9355. The petition, docketed as G.R. No. 175158,
was dismissed on technical grounds.
2. Annex "B-1," rollo, p. 89.
3. Annexes "B," "B-1" to "B-2," id. at 88-90.

4. Annex "C," id. at 91.
5. Annex "E," id. at 124.
6. Id.
7. Memorandum of respondent Governor Robert Ace S. Barbers, rollo, p. 676.
8. Memorandum of Petitioners, id. at 462-463.
9. G.R. No. 132527, July 29, 2005, 465 SCRA 47.

10. Id.
11. Province of Batangas v. Romulo, G.R. No. 152774, May 27, 2004, 429 SCRA
736.
12. Id.
13. Italics supplied.
14. Emphasis supplied.
16. No. L-73155, July 11. 1986, 142 SCRA 727.

18. Tan v. Commission on Elections, supra note 16 at 749.
19. Id. at 749-750. (Emphasis supplied.)
20. The IRR was formulated by the Oversight Committee pursuant to Sec. 533
of the Local Government Code:
SEC. 533. Formulation of Implementing Rules and Regulations. — (a)
Within one (1) month after the approval of this Code, the President shall
convene the Oversight Committee as herein provided for. The said
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.
(b) The Committee shall be composed of the following:
(1) The Executive Secretary, who shall be the Chairman;
(2) Three (3) members of the Senate to be appointed by the President of the
Senate, to include the Chairman of the Committee on Local Government;
(3) Three (3) members of the House of Representatives to be appointed by

the Speaker, to include the Chairman of the Committee on Local
Government;

(4) The Cabinet, represented by the following:
(i) Secretary of the Interior and Local Government;

(ii) Secretary of Finance;
(iii) Secretary of Budget and Management; and
(5) One (1) representative from each of the following:

(i) The League of Provinces;
(ii) The League of Cities;
(iii) The League of Municipalities; and
(iv) The Liga ng mga Barangay.

21. League of Cities of the Philippines v. Commission on Elections, G.R. Nos.
176951, 177499, 178056, November 18, 2008, 571 SCRA 263.
22. Hijo Plantation, Inc. v. Central Bank, G.R. No. L-34526, August 9, 1988, 164
SCRA 192.
23. Local Government Code, 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.
(b) It is also the policy of the State to ensure the accountability of local
government units through the institution of effective mechanisms of recall,
initiative and referendum.
(c) It is likewise the policy of the State to require all national agencies and
offices to conduct periodic consultations with appropriate local government
units, nongovernmental and people's organizations, and other concerned
sectors of the community before any project or program is implemented in
their respective jurisdictions.
24. G.R. No. 163980, August 2, 2006, 497 SCRA 581.
25. Id. at 599-601.

26. G.R. No. 109455, November 11, 1993, 227 SCRA 728.
27. SEC. 494. Ex Officio Membership in Sanggunians. — 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.
28. SEC. 491. Purpose of Organization. — There shall be an organization of all
barangays, to be known as the Liga ng mga Barangay, for the primary
purpose of determining the representation of the liga in the sanggunians and
for ventilating, articulating and crystallizing issues affecting barangay
governmental administration and securing, through proper and legal means,
solutions thereto.
29. ART. 210. Liga ng mga barangay. —
xxx xxx xxx

(d) Ex Officio Membership in the Sanggunian —
(3) The incumbent presidents of the municipal, city, and provincial chapters
of the liga shall continue to serve as ex officio members of the sanggunian
concerned until the expiration of their term of office, unless sooner revoked
for cause.
xxx xxx xxx
(f) Organizational Structure —

(1) . . . Pending election of the presidents of the municipal, city, provincial,
and metropolitan chapters of the liga, the incumbent presidents of the
association of barangay councils in the municipality, city, province, and
Metropolitan Manila shall continue to act as presidents of the corresponding
liga chapters under this Rule.
30. League of Cities of the Philippines v. Commission on Elections, supra note
17.
31. Id.
32. Id.
33. Rollo, p. 93. (Emphasis supplied.)
34. SEC. 7. Creation and conversion. — As a general rule, the creation of a local
government unit or its conversion from one level to another shall be based
on 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).
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
Provided, That, the creation thereof shall not reduce the land area,
population, and income of the original unit or units at the time of said
creation to less than the minimum requirements prescribed herein.
(Emphasis supplied.)
35. Sec. 461, supra.

36. Annex "A," rollo, pp. 51-61.
37. Annex "AA," id. at 498. (Emphasis supplied.)
39. See League of Cities of the Philippines v. Commission on Elections, supra

note 17.
40. Id.
41. Ceniza v. Commission on Elections, L-52304, January 28, 1980, 95 SCRA
775.
42. Bernas, The 1987 Constitution of the Philippines: A Commentary, 625

(2006).
43. Id.
44. Cayetano, v. Commission on Elections, G.R. No. 166388, January 23, 2006,
479 SCRA 513.
NACHURA, J., dissenting:
1. Passed by the House of Representatives and the Senate on August 28, 2006
and August 14, 2006, respectively.
2. Rollo, pp. 124-127.
3. Id. at 143.
4. Rollo (G.R. No. 175158), pp. 3-20.
5. In its November 28, 2006 Resolution in G.R. No. 175158, the Court dismissed
the petition for certiorari as the verification and certification of non-forum
shopping were defective or insufficient and the IBP Official Receipt of the
counsel for petitioners was dated December 19, 2005. The Court later
dismissed the petition with finality in its February 13, 2007 Resolution. The
Court further issued the Entry of Judgment on April 11, 2007. (Id. at 77A and
112.)
6. Rollo, p. 25.
7. Became effective on January 1, 1992.
8. Rollo, p. 207.
9. Id. at 209.
10. Id. at 498.
11. Emphasis and underscoring supplied.
12. Underscoring supplied.
14. Board of Supervisors of Houghton County v. Blacker, 92 Mich. 638, 646; 52

N.W. 951, 953 (1892); Vestal v. City of Little Rock, 15 S.W. 891, 892 (1891).
15. United States v. Hunter, 80 F.2d 968, 970 (1936). This case clarifies that
when the intervening water is the high seas over which neither of the lands
has exclusive jurisdiction, they are not contiguous territories though no dry
land intervenes.
16. No. L-73155, July 11, 1986, 142 SCRA 727, 749-750.
17. Section 2 of the LGC provides:
Section 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.
(b) It is also the policy of the State to ensure the accountability of local
government units through the institution of effective mechanisms of recall,
initiative and referendum.
(c) It is likewise the policy of the State to require all national agencies and
offices to conduct periodic consultations with appropriate local government
units, nongovernmental and people's organizations, and other concerned
sectors of the community before any project or program is implemented in
their respective jurisdictions.
18. Bicameral Conference Committee Meeting of the Committee on Local
Government, May 22, 1991, 4th Regular Session, pp. 57-67.
19. 420 Phil. 524, 530-531 (2001).

20. Herrera, Remedial Law, Vol. III (1999 ed.), pp. 295-296.

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EN BANC

[G.R. No. 180050. February 10, 2010.]

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

This is a petition for certiorari under Rule 65 of the Rules of Court

On December 3, 2006, the Plebiscite Provincial Board of Canvassers

WHETHER OR NOT REPUBLIC ACT NO. 9355, CREATING THE NEW

WHETHER OR NOT THE CREATION OF DINAGAT AS A NEW PROVINCE BY

WHETHER OR NOT THE RESULT OF THE PLEBISCITE IS CREDIBLE AND

In her Memorandum, respondent Governor Geraldine B. Ecleo-

The contention is without merit.

On the other hand, respondents contend in their respective

Pursuant to the Constitution, the Local Government Code of 1991

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

(c) The average annual income shall include the income

As a clariﬁcation of the territorial requirement, the Local Government

The requisites for the creation of a province in Sec. 197 of Batas

In Tan v. COMELEC, petitioners therein ﬁled a case for Prohibition for

Respondents in Tan insisted that when the Local Government Code

(2) Population or land area — Population which shall not be

The Committee's authority to ﬁx the selling price of the lots may

The provision on the price escalation clause as a penalty imposed

Hence, the provisions in the implementing rules and regulations that

Whether R.A. No. 9355 complied with the requirements of Section

. . . There is no problem with the land area requirement and to

Now because of this question, we would like to make it of record

We only certify population based on the counts proclaimed by

Sir, as per Batas Pambansa, BP 72, we only follow kung ano po

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Yes, sir, but then we only conduct census of population every 10

Yes, sir. We have passed a resolution — orders to the provincial

Yes, your Honor, we have conducted a special census in the year

xxx xxx xxx

We do not question po the results of any locally

Oo. But a certification, even though not issued, cannot go against

REP. ECLEO (GLENDA).

Please, Ms. Vergara.

'Yong sinasabi n'yo po, sir, bale we computed the estimated

THE CHAIRMAN. TEcCHD

xxx xxx xxx

REP. ECLEO (GLENDA).

Thank you, Mr. Chairman.

Thank you, Congresswoman.

'Yon po sa sinasabi naming estimated population, we only based

No'ng mga residents.

To reiterate, when the Dinagat Islands was proclaimed a new province

The argument of petitioners is unsubstantiated.

Unperturbed, petitioners ﬁled their new petition, the instant case,

For the creation of a province, the LGC provides:

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

Here, the Department of Finance certiﬁed that the province of Dinagat

I cannot, however, subscribe to the ponencia's holding that Dinagat

xxx xxx xxx

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

(ii) a population of not less than two hundred ﬁfty thousand

Signiﬁcant in the provision is paragraph (b), underscored above, as it

The stipulation in paragraph (b), however, qualiﬁes not merely the

It will result in superﬂuity, if not absurdity, if paragraph (b) of the

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The reason why we are willing to increase the income, double

Okay, what about land area?